Fontenot v. Crow

• Decision Date: 13 July 2021
• Docket Number: No. 19-7045,19-7045
• Parties: Karl FONTENOT, Petitioner - Appellee, v. Scott CROW, Interim Director, Respondent - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

4 F.4th 982

Karl FONTENOT, Petitioner - Appellee,

v.Scott CROW, Interim Director, Respondent - Appellant.

No. 19-7045

United States Court of Appeals, Tenth Circuit.

July 13, 2021

Sheri M. Johnson, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, Matthew D. Haire and Theodore M. Peeper, Assistant Attorneys General on the briefs), Oklahoma City, Oklahoma, for Respondent - Appellant Scott Crow.

Tiffany R. Murphy, Fayetteville, Arkansas, for Petitioner - Appellee Karl Fontenot.

Before McHUGH, EBEL, and EID, Circuit Judges.

McHUGH, Circuit Judge.

TABLE OF CONTENTS

I. FACTUAL AND INVESTIGATIVE HISTORY....992

A. Ms. Haraway's Abduction....992

1. McAnally's....992

2. J.P.'s Pak-to-Go....994

3. McAnally's Customers....995

4. Obscene Phone Calls....996

B. Fontenot and Ward....998

1. Suspects....998

2. Confessions....999

3. Search....1001

C. Confessions vs. Facts....1002

II. PROCEDURAL HISTORY....1006

A. Joint Trial (1985)....1006

B. First Appeal (1985–87)....1007

C. New Trial (1988)....1008

D. Second Appeal (1988–94)....1009

1. OSBI Disclosures....1009

2. The OCCA's Decision....1011

E. State Postconviction (2013–14)....1012

1. Mr. Fontenot's application....1012

a. Actual innocence....1013

b. Brady claim....1013

2. State Court Rulings....1014

F. Federal Habeas (2016–present)....1014

1. Initial Proceedings....1014

2. Second Amended Petition....1016

3. District Court Order....1017

4. Federal Appeal....1018

III. THRESHOLD ISSUES....1018

A. Exhaustion....1018

1. Exhausted Claims....1020

2. Exhaustion of Brady ....1021

3. Unexhausted Claims....1022

4. Anticipatory Procedural Bar....1023

a. Post-Conviction Procedure Act....1023

b. Laches....1025

B. Procedural Barriers....1028

1. Procedural Default....1028

2. Statute of Limitations....1028

3. Exceptions....1028

C. Actual Innocence....1029

1. New Evidence....1031

2. Standard of Review....1034

3. Analysis....1035

a. Alibi evidence....1035

b. Obscene phone calls....1038

c. James Moyer's affidavit....1040

d. Karen Wise's affidavit....1044

e. Pickup descriptions....1048

f. Medical Examiner report....1049

4. Total Record....1051

IV. MERITS....1056

A. Chance to Address Merits....1057

B. Standard of Review....1060

C. Brady Claim....1061

1. Suppressed by the State....1062

a. Known but not disclosed....1062

b. Knew or should have known....1065

2. Favorable to the Defense....1066

a. Alibi evidence....1067

b. Witness statements....1068

c. Floyd DeGraw....1072

d. Jeff Miller & Terri McCartney....1073

e. Obscene phone calls....1075

f. Floral blouse....1077

3. Prejudice....1080

D. Remedy....1082

V. CONCLUSION....1083

Karl Allen Fontenot was twice tried and found guilty of the 1984 kidnapping, robbery, and murder of Donna Denice Haraway in Ada, Oklahoma. Almost no evidence connected him to the crime other than his own videotaped confession, a confession that rang false in almost every particular. Nearly thirty years after his second conviction, Mr. Fontenot brought a petition for habeas corpus in federal district court, arguing the actual innocence gateway allowed for his constitutional claims to be heard on the merits. The district court agreed, and granted relief on all of Mr. Fontenot's claims, including his assertion that the prosecution suppressed material evidence prior to his trial. The district court ordered the State of Oklahoma to release Mr. Fontenot or to grant him a new trial.

The State's arguments for reversing that order lack merit. Mr. Fontenot has brought forth new evidence that is sufficient to unlock the actual innocence gateway and to allow his substantive claims to be heard on the merits. And Mr. Fontenot has also established that evidence suppressed by the State prior to his new trial in 1988 led to a violation of his constitutional right to due process. Exercising jurisdiction under 28 U.S.C. § 2253(a), we affirm the district court's grant of Mr. Fontenot's petition for habeas relief to prevent the further perpetuation of a fundamental miscarriage of justice.

***

This opinion proceeds in four main parts. Because of the fact-intensive nature of Mr. Fontenot's argument that he suffered a fundamental miscarriage of justice, we discuss the history of the 1984 crime and its investigation at length in Part I. Part II traces the procedural history of Mr. Fontenot's direct appeals and postconviction challenges in state and federal court. Part III concerns the threshold issues that must be addressed before reaching the merits of Mr. Fontenot's habeas petition: exhaustion, procedural default, and timeliness. Finally, Part IV addresses the State's argument that it did not receive an adequate opportunity in the district court to contest the substance of Mr. Fontenot's constitutional claims, before proceeding to the merits of the alleged Brady violation.

I. FACTUAL AND INVESTIGATIVE HISTORY¹

A. Ms. Haraway's Abduction

1. McAnally's

On Saturday, April 28, 1984, at approximately 8:45 p.m., 24-year-old Donna Denice Haraway was abducted from the McAnally's gas station and convenience store at 2727 Arlington Street, on the eastern edge of Ada, Oklahoma. At the time of her abduction, she was the sole employee working the McAnally's night shift.

Gene Whelchel and his nephews, Lenny and David Timmons, stopped at McAnally's around 8:45 p.m. that evening, or a few minutes before. Mr. Whelchel, in one car, and the Timmons brothers, in another, needed change for a Saturday night poker game at Mr. Whelchel's house. They parked on the west side of the store, which sat on the south side of Arlington. Mr. Whelchel and David Timmons stayed in their vehicles, while Lenny, David's older brother, got out and headed toward the entrance.

Just as Lenny Timmons walked into McAnally's, a man and a woman walked out of the store together. In interviews with the police several days later, Mr. Whelchel described the man as neatly dressed, in his early 20's, around 5'8 and 150 pounds, with blond, possibly ear-length hair. David Timmons described him as short and stocky, with dishwater blond hair slightly shorter than earlobe length. Lenny described him as around 5'8, medium build, with blond hair cut to mid-ear. Lenny described the woman as approximately the same height as the man, with blond, curly, shoulder-length hair. Mr. Whelchel also thought she was around the same height as the man, and that she possibly fit the description of Ms. Haraway, whom he had seen before. David agreed that the woman he saw looked similar to a picture of Ms. Haraway, who was 5'5 with brown eyes and long, sandy brown hair. David believed the man might have had his arm around the woman's waist as they walked out of the store.

The unidentified man and the woman—whom Mr. Whelchel later identified as Ms. Haraway—walked directly to a pickup truck parked in front of the store. The pickup was parked facing east, parallel to the gas pumps and the front door, taking up several spaces. David and Lenny Timmons observed the man and woman both get in on the passenger side, the door closer to the store. The woman got in first, followed by the man. According to David, the woman did not appear afraid or apprehensive, and nothing stood out as unusual. The pickup then immediately pulled out of the McAnally's lot and headed east on Arlington, a four-lane highway.

None of the three eyewitnesses noticed anyone else inside or outside of the pickup truck before the man and woman got in, and none noticed who drove the truck away from McAnally's. But all three were able to describe the vehicle. Mr. Whelchel said it was a light-colored, full-sized pickup, possibly an early 70's model. He was pretty sure it was not a narrow-bed style. David Timmons thought it might have been a 1972 Chevy, possibly a dull dark blue, with gray primer spots and a conventional straight side bed. Lenny Timmons described it as an older model pickup truck, late '60s or early '70s.

No one was in the store or behind the counter when Lenny Timmons entered McAnally's. He noticed the cash register drawer was open and that most of the cash was gone, except for the ones and the change. A cigarette was still burning in an ashtray on the counter. The ashtray was positioned such that the person who placed the cigarette there must have been standing behind the counter.² Lenny spent about five minutes trying to locate the clerk, checking the restroom and freezer and opening the front door again to sound the notification bell, before heading back outside. Lenny and Mr. Whelchel then called the Ada Police Department ("APD"). Mr. Whelchel found a number for the McAnally's store manager, Monroe Atkeson, and called him as well.

The call to the APD went out at 8:50 p.m. Officer Harvey Phillips arrived at McAnally's around ten minutes later, where he found Mr. Whelchel, Lenny Timmons, and two other unidentified men. Officer Phillips observed the empty cash register and a purse and keys behind the counter. Inside the purse was an Oklahoma driver's license for Donna Denice Haraway. Ms. Haraway's schoolbooks lay open on the counter and her car was parked on the side of the store.

Mr. Atkeson, the store manager, arrived a few minutes after Officer Phillips. He compared the cash register tape to the money in the machine and determined that about $167 was missing. The last sale registered was for seventy-five cents; the only item that sold for that amount was a tallboy beer. After looking around McAnally's and speaking with the police, Mr. Atkeson began the process of closing the store. Officer Phillips failed to secure the scene to preserve evidence. By the time an APD detective arrived, roughly an hour after Ms. Haraway's disappearance, multiple people had been in and out of the store, and it had been cleaned and prepared for opening the next day. The cigarette butt still burning in the ashtray when Lenny Timmons first entered was tossed away, and no fingerprints were taken.

2. J.P.'s Pak-to-Go

J.P.'s Pak-to-Go, another convenience store, sat approximately a quarter mile east of McAnally's on Arlington.

Karen Wise was working the 3-to-11 p.m. shift at J.P.'s on the...