Fontenot v. Allbaugh

• Decision Date: 21 August 2019
• Docket Number: No. CIV 16-069-JHP-KEW,CIV 16-069-JHP-KEW
• Citation: 402 F.Supp.3d 1110
• Parties: Karl FONTENOT, Petitioner, v. Joe ALLBAUGH, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Oklahoma

402 F.Supp.3d 1110

Karl FONTENOT, Petitioner,

v.Joe ALLBAUGH, Warden, Respondent.

No. CIV 16-069-JHP-KEW

United States District Court, E.D. Oklahoma.

Signed August 21, 2019

Tiffany R. Murphy, Fayetteville, AR, Robert Ridenour, Federal Public Defender, Muskogee, OK, for Petitioner.

Matthew D. Haire, Kevin L. McClure, Theodore M. Peeper, Office of the Attorney General, Oklahoma City, OK, for Respondent.

OPINION AND ORDER

James H. Payne, United States District Judge

This matter is before the Court on Respondent's Motion to Dismiss Second Amended Habeas Corpus Petition filed pursuant to 28 U.S.C. § 2254 (Dkt.#s 123, 147).¹ Petitioner filed a response to the motion on May 14, 2019 (Dkt.# 150).

Petitioner's case is one of three the United States District Court for the Eastern District of Oklahoma has found to involve a dream confession of dubious validity.² The players in this case, Pontotoc County District Attorney William Peterson, Ada Police Detective Dennis Smith, and Oklahoma State Bureau of Investigation Agent Gary Rogers, were all involved in these suspect confessions and were all involved in Petitioner's case.

The prosecution has acknowledged that Petitioner's confession lacked any corroborating evidence. Besides the confession, there was no direct or circumstantial evidence connecting Petitioner to this crime. Further, despite three court orders, the Pontotoc County District Attorney's Office, numerous law enforcement agencies, and Respondent have repeatedly failed to disclose documents relevant to Mr. Fontenot's case for over twenty-five years. At the same time, Respondent both in state post-conviction and in these proceedings argues laches as an affirmative defense to Mr. Fontenot's assertions of actual innocence and numerous constitutional violations. The audacity of that argument in the face of newly "discovered" Ada Police Reports is astounding.

The investigation into Mr. Fontenot's case has revealed both documents and witness statements that prove an alibi defense, and substantiate proof of the ineptness of the police investigation. The newly discovered evidence undermines the prosecutor's case and provides solid proof of Mr. Fontenot's probable innocence. "Probable innocence" is established if Mr. Fontenot presents "new facts [that] raise[ ] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial..." Schlup v. Delo , 513 U.S. 298, 317, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (emphasis added). To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327, 115 S.Ct. 851 ; see also House v. Bell , 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) ( a federal court presented with Schlup claim "must make" ‘a probabilistic determination about what reasonable, properly instructed jurors would do.’ "). Once a federal court makes such a finding, a gateway claim of innocence exists removing any procedural obstacles allowing the substantive review of Mr. Fontenot's claims. See House , 547 U.S. at 536-537, 126 S.Ct. 2064 ; Case v. Hatch , 731 F.3d 1015, 1036 (10th Cir. 2013). The evidence presented in Mr. Fontenot's Second Amended Petition establishes his probable innocence and merits the removal of any procedural hurdles.

Petitioner, a prisoner currently incarcerated at North Fork Correctional Facility in Sayre, Oklahoma, is challenging his convictions in Hughes County District Court Case No. CF-88-43 for First Degree Murder, Robbery with a Dangerous Weapon, and Kidnapping.

He sets forth the following grounds for relief:

I. Newly discovered evidence establishes that Mr. Fontenot is innocent, satisfying the gateway requirements of Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

II. Mr. Fontenot's Fourteenth Amendment rights were violated when the Pontotoc County District Attorney's Office withheld evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

III. Mr. Fontenot's Sixth and Fourteenth Amendment fundamental right to counsel was violated by the Ada Police Department's interference with attorney-client privilege.

IV. Mr. Fontenot's Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to investigate the case and present viable evidence supporting his innocence.

V. Mr. Fontenot's Sixth Amendment right to effective assistance of appellate counsel was violated when his appellate counsel failed to present viable constitutional claims in Mr. Fontenot's direct appeal proceedings.

VI Mr. Fontenot's due process rights were violated due to police misconduct when taking a false confession and the prosecution knowingly introduced false testimony during his trial in violation of the Fifth and Fourteenth Amendment to the U.S. Constitution.

VII. The evidence was insufficient to convict Mr. Fontenot because the State failed to show the existence of the corpus delicti of the charged crimes outside of the confession and failed to establish the trustworthiness of the confession in violation of the Fourteenth Amendment.

VIII. The State's injection of inadmissible hearsay from the extrajudicial confession of Mr. Ward in Mr. Fontenot's trial violated his constitutional right of confrontation.

IX. Mr. Fontenot's Fourteenth Amendment due process rights were violated due to the police misconduct that permeated the investigation into Mrs. Haraway's disappearance.

Respondent has filed a motion to dismiss the Second Amended Petition as barred by the statute of limitations set forth in 28 U.S.C. § 2244(d), and the state bar of laches. (Dkt.# 147). Respondent also asserts the Second Amended Petition includes unexhausted claims, rendering it a mixed petition. Id. Petitioner responds he has established the actual innocence gateway removing the procedural impairments, and all of his claims should be deemed exhausted. (Dkt.# 150).

PROCEDURAL HISTORY³

On April 24, 1984, Donna Denice Haraway was last seen at McAnally's convenience store in Ada, Oklahoma. A few customers arrived to find the store empty and called emergency services. Several law enforcement agencies responded to the scene including the Ada Police Department ("APD"), and the Pontotoc County Sheriff's Office. Later, the Oklahoma State Bureau of Investigation joined the local agencies in the investigation.

On October 12, 1984, with Mrs. Haraway still missing, the police contacted Thomas Ward in Norman, Oklahoma, and interviewed him for more than two hours. (PH Tr. 506). Mr. Ward denied any involvement or knowledge of what happened to Mrs. Haraway. ( Tr. 1336). Mr. Ward returned to the Oklahoma State Bureau of Investigation to take a polygraph test the next day. After nine hours of interrogation, police videotaped Mr. Ward give a statement in which he described being with Odell Titsworth and Karl Fontenot the night of Mrs. Haraway's disappearance. Mr. Ward also stated the three robbed McAnally's, kidnapped Mrs. Haraway, raped, and stabbed her to death. Based solely on Mr. Ward's confession, police arrested Mr. Fontenot the next day. Mr. Fontenot was interrogated and confessed in similar fashion as Mr. Ward.

Nineteen days later, the Pontotoc District Attorney's Office filed charges against Mr. Fontenot and Mr. Ward in Case No. CRF-84-183 including Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; Count III, First-Degree Rape; and Count IV, First-Degree (Malice Aforethought) Murder. (O.R. 112). On November 8, 1984, the State filed a Bill of Particulars against each defendant alleging the following aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. (O.R. 591, 592). Mr. Fontenot was appointed counsel on November 29, 1984, 42 days after his arrest. (O.R. 30).

The Pontotoc District Court held a joint preliminary hearing on February 4, 1985. Mr. Fontenot and Ward were bound over for trial on Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; and Count IV, Murder in the First Degree. (O.R. 592-A-592-B). The magistrate found insufficient evidence to order either defendant to trial on Count III, First-Degree Rape. (P/H 1047). The State appealed to the District Court to reinstate Count III, but was overruled. (Tr. 26-27). The State appealed the ruling to the Oklahoma Court of Criminal Appeals. On September 6, 1985, while the State's appeal on the rape charge was pending, the State dismissed the rape charge and amended the Information to allege Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; and Count III, First Degree (Malice Aforethought) Murder, and proceeded to trial. (O.R. 475).

Both Mr. Fontenot and Mr. Ward were convicted on all counts in a jury trial held on September 24, 1985. The trial court sentenced both to twenty years imprisonment on Count I, and ten years imprisonment on Count II. During the penalty phase of the trial, the jury found the existence of the three aggravating circumstances and no mitigation. Mr. Fontenot and Mr. Ward were sentenced to death. An appeal was timely filed for both men in the Oklahoma Court of Criminal Appeals.

During the pendency of the appeal, a man found a skull in Hughes County, Oklahoma, which initiated a search of the area. Eighteen months after Mrs. Haraway's disappearance, her skeletal remains were recovered after several searches of the area. The medical examiner found a bullet hole in the back of her skull was the only evidence of a probable cause of death. (N/T 6/9/1988 at 130). The medical examiner also found no evidence of any stabbing or burning of the remains. (N/T 6/14/1988 at 134, 136). The Oklahoma Court of Criminal Appeals reversed both the...