Cress v. Palmer

• Decision Date: 05 April 2007
• Docket Number: No. 05-1798.,05-1798.
• Citation: 484 F.3d 844
• Parties: Thomas CRESS, Petitioner-Appellant, v. Carmen PALMER, Warden, Riverside Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

484 F.3d 844

Thomas CRESS, Petitioner-Appellant, v. Carmen PALMER, Warden, Riverside Correctional Facility, Respondent-Appellee.

No. 05-1798.

United States Court of Appeals, Sixth Circuit.

Argued: March 8, 2007.

Decided and Filed: April 5, 2007.

ARGUED: Bridget M. McCormack, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Bridget M. McCormack, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.^*

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

The petitioner, Thomas Cress, is a Michigan state prisoner serving a life sentence for first-degree felony murder. He appeals from the district court's order dismissing his second habeas petition, filed pursuant to 28 U.S.C. § 2254. The petitioner contends that his due process rights were violated when (1) physical evidence related to his case was destroyed after his appeals were completed, (2) the state post-conviction court rejected as incredible the recantation evidence that he proffered, and (3) the state post-conviction court did not grant him relief based on evidence indicating his innocence. The district court denied relief on the merits. Because the record establishes that the petitioner's claims are not cognizable on habeas review, we conclude that the district court should have dismissed the petition for lack of jurisdiction, and we therefore affirm the order of dismissal, but for a different reason from that given by the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1985, a Battle Creek jury found petitioner Cress guilty of murdering Patricia Rosansky and convicted him of first-degree felony murder, resulting in the imposition of a life sentence. There were no eyewitnesses to the crime, and hair and semen samples recovered by investigators failed to connect Cress to the murder. The main evidence introduced by the prosecution at trial consisted of the testimony of several witnesses who said that Cress had told them that he committed the murder. Cress appealed his conviction unsuccessfully and then sought post-conviction relief in state court, again without success. In 1989, he filed a habeas petition in federal district court that was dismissed on the merits. See Cress v. Grayson, No. 1:89-cv-01020 (W.D.Mich. Aug. 30, 1991). On appeal, we affirmed the district court's order of dismissal. See Cress v. Grayson, No. 91-2095, 1992 WL 31305 (6th Cir. Feb.20, 1992).

In 1997, Cress brought a motion for a new trial in state court, claiming that he was entitled to relief because key prosecution witnesses had recanted their testimony and another person had recently confessed to committing the murder. The state court initially granted Cress's motion for a retrial, but reversed itself after reopening the matter and taking more evidence. The Michigan Court of Appeals then reversed this denial of a new trial. People v. Cress, 250 Mich.App. 110, 645 N.W.2d 669 (2002). Finally, the Michigan Supreme Court reversed the Court of Appeals, after remanding for a hearing on the issue of whether the prosecution had destroyed evidence in bad faith. People v. Cress, 468 Mich. 678, 664 N.W.2d 174 (2003). On remand, the state trial court found as a matter of fact that no bad faith was involved in the conduct at issue.

Having exhausted his state remedies, Cress filed this second habeas petition, which was referred to a magistrate judge for a report and recommendation. The magistrate judge subsequently recommended that the petition be summarily dismissed because it was untimely and because it failed to state claims cognizable on habeas. The district court ostensibly dismissed the petition on the merits, concluding that none of the claims established a federal constitutional violation.

The district court denied Cress's request for a certificate of appealability, but we granted the request "with respect to Cress's claims that: (1) the state courts improperly analyzed his claim that the prosecution destroyed potentially exculpatory evidence; (2) the state courts improperly ignored his recantation evidence; and (3) his continued incarceration in light of compelling evidence of his actual innocence and another's guilt violates due process and constitutes cruel and unusual punishment." The certificate also directed the parties to brief a fourth issue: "whether, because Cress filed an earlier unsuccessful habeas corpus petition, the district court should have transferred this petition to this court for consideration as a motion for an order authorizing the district court to consider a second or successive habeas application pursuant to In re Sims, 111 F.3d 45, 47 (6th Cir.1997), and if so, what effect the district court's failure to transfer the petition has on the procedural posture of this case."

A. Destruction of Evidence

The record reflects that in 1992, after completion of Cress's trial, direct appeals, and the first round of state and federal post-conviction challenges, certain physical evidence relating to his case was routinely discarded—in particular, "a sanitary napkin with sperm contained thereon and hairs with at least one intact root, both of which were seized as evidence from the person of the deceased or in close proximity thereto." The destruction of this evidence was part of a statewide effort to increase storage space, pursuant to a request from the state police department that all local offices review cases in which they had evidence in long-term storage at the state police facility, in order to determine whether that evidence could be discarded. The clean-up effort was initiated when letters with the relevant case numbers (but not names) were sent from the state police headquarters to individual posts. The request forms sent to Battle Creek police, including one referencing Cress's case number, were reviewed and then signed by the post commander and forwarded to the prosecutor's office. Prosecutor Jon Sahli testified that when he received these forms, he had the appeals secretary check the status of the relevant cases and, if the appeal was over, authorize the destruction. Sahli asserted that someone had written "closed, no appeal" on the form pertaining to Cress's case, that he accordingly believed the case was completed, and that he signed the authorization in May 1992. The evidence related to Cress's case was discarded in the fall of 1992, along with evidence from 69 other (mostly murder) cases, under the oversight of the state police department's long-term storage supervisor.

Cress now suggests that the destruction of evidence related to his case was motivated by the pro se motion for transcripts that he submitted to the prosecutor's office on May 8, 1992. A note found on this motion drafted by Prosecutor Sahli's secretary indicated that Sahli had said that someone from his office should attend the hearing regarding Cress's motion. Sahli later testified that he did not recall being apprised of Cress's motion for trial transcripts, but that if he was, then he would have ordered that the on-duty assistant prosecutor handle the motion.

B. Recantation Evidence

The sole recantation evidence in the record consists of the transcript of an interview of prosecution witness Candy Cross by a Battle Creek detective named Dennis Mullen and Mullen's testimony about this interview at a state court post-conviction hearing. The record does not contain any sworn testimony from Cross. In the interview, she said that she knew nothing about Rosansky's murder before Cress was arrested and that she had always believed that he was innocent. Cross also repeatedly insisted that she did not testify against Cress at trial. However, Mullen confronted Cross with trial transcripts showing that she had, in fact, testified at trial to the effect that Cress had told her on three separate occasions that "he had killed a girl named Patty and had put her in a ditch" and that he had also driven Cross to the location where he purported to have left her body. When Mullen continued to press her, Cross maintained that she had no recollection whatsoever of testifying against Cress, but she did say that if she had so testified, "I . . . was mistaken because I would not purposely tell a lie in court." Cross also suggested that perhaps she "got confused" and testified against Cress inadvertently, noting that lawyers "twist things" when questioning witnesses. Though Cross never affirmatively stated in the interview that she had given false testimony against Cress, she did state that if she had testified against him she was "willing to take it back."

During this interview Cross also suggested that two other prosecution witnesses, her sister, Cindy Leslie, and her brother-in-law, Walter Moore, may have testified falsely. At Cress's trial, Leslie testified that Cress had confessed to her that he had murdered Rosansky and that he had taken Leslie to an area where he said that he had left Rosansky's dead body. Leslie additionally stated that Cress told her that he had hit Rosansky in the head and that Leslie returned to the area identified by Cress with her sister and two other prosecution witnesses, who had then indicated to her that Cress had told them "the same thing" and taken them to the same place. Leslie also testified at trial that she contacted the police to report Cress shortly after this incident and that, although she was not expecting a reward at the time of this report, she later received a $5000 reward from a crime tip hotline. There is no indication in the record, other than uncorroborated hearsay testimony, that Leslie's trial testimony was untruthful or that she ever wavered from it.

Similarly, there is no evidence in the record that Moore himself ever recanted his testimony; he committed...