Freie v. Fayram

• Decision Date: 13 October 2011
• Docket Number: No. C10-2073-MWB,C10-2073-MWB
• Citation: Freie v. Fayram, No. C10-2073-MWB (N.D. Iowa Oct 13, 2011)
• Parties: RAYMOND T. FREIE, JR., Petitioner, v. JOHN FAYRAM, Respondent.
• Court: U.S. District Court — Northern District of Iowa

RAYMOND T. FREIE, JR., Petitioner,

v.JOHN FAYRAM, Respondent.

No. C10-2073-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

Date: October 13, 2011

ORDER REGARDING MAGISTRATE'S REPORT AND

RECOMMENDATION CONCERNING RESPONDENT'S

MOTION TO DISMISS

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND.........................2

II. ANALYSIS.............................................9

A. Standard Of Review...................................9

1. Standard of review of report and recommendation.........9

2. General standards for § 2254 relief ................. 10

B. Objection To Report And Recommendation ................... 11

III. CERTIFICATE OF APPEALABILITY......................... 15

IV. CONCLUSION......................................... 16

Petitioner Raymond T. Freie, Jr.'s Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody is before me pursuant to a Report and Recommendation of Chief United States Magistrate Judge Paul A Zoss recommending that respondent John Fayram's Motion to Dismiss be granted and the petition be dismissed as untimely. Freie filed objections to the Report and Recommendation. Respondent Fayram filed no objections to the Report and Recommendation and no response to Freie's objections. I now consider whether to accept, reject, or modify Judge Zoss's Report and Recommendation in light of the objections.

I. INTRODUCTION AND BACKGROUND

Freie is an inmate at Anamosa State Penitentiary, Anamosa, Iowa. Following a jury trial in 1981, he was convicted of first-degree murder and sentenced to life imprisonment. Freie appealed his conviction. The Iowa Supreme Court concluded that a reasonable jury could have found the following facts:

The victim was found in the bathroom of his home fatally shot once through the upper portion of his chest. He had been shot at close range with his own rifle, which was found nearby. Testimony indicated that the bullet followed a path parallel to the ground, piercing the victim's heart. Testimony also revealed that a high level of concentration of antimonium and barium (residue of gunpowder) was found on the palms of the victim's hands indicating that he may have had his hands up in a defensive manner when the fatal shot was fired.

Upon his initial arrest, the defendant made certain statements concerning his whereabouts and involvement in the shootingwhich were inconsistent with his later trial testimony. At trial, the defendant admitted that after learning of his wife's relationship with "another man," he had discussed with his daughter his intention to harm this "other man." Testimony indicated that he sought out the name and address of the victim and had parked in the vicinity of his home on several occasions during a two-week period prior to the victim's death. The defendant admitted that on at least one occasion he entered the victim's home when no one was there. The defendant also admitted being present at the shooting but claimed that as a result of a scuffle with the victim, the rifle accidentally discharged.

The defendant's version of the incident was that on the day of the shooting he had been waiting for the victim and that when the victim arrived home he went to the door and was invited into the kitchen. Defendant stated that he discussed with the victim his resistance and disapproval of the pending divorce and the future of his children, and then, the victim "got real mad and jumped up, and told me to get the hell out." The defendant claims that as he turned to leave he stumbled over a rifle near the door and picked it up, that the victim then grabbed the gun, and as the two were "pulling it back and forth" the gun went off, striking the victim. The defendant fled but later returned to find the victim lying on the bathroom floor, dead. Frightened, he claimed, he then left with intentions to find his wife.

State v. Freie, 335 N.W.2d 169, 171 (Iowa 1983).

On appeal Freie argued that "(1) the evidence was insufficient to support the verdict and (2) cross-examination of his wife improperly exceeded the scope of direct examination." Id. The Iowa Supreme Court rejected Freie's arguments and affirmed his conviction. Id. at 171-72.

Freie filed an application for post-conviction relief in which he alleged that his trial counsel had been ineffective in not preventing Freie from taking a polygraph examination and stipulating that the results of that test might be offered into evidence. After a hearing, Freie's application for post-conviction relief was denied by the Iowa District Court for Hancock County. Freie appealed that decision to the Iowa Supreme Court, which referred his appeal to the Iowa Court of Appeals.¹ On March 9, 1988, the Iowa Court of Appeals affirmed the denial of his application for state post-conviction relief. See Freie v. State, No. 86-1842, 428 N.W.2d 318 (Iowa Ct. App. Mar. 9, 1988) (unpublished table opinion).²

On February 26, 1991, Freie filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this court. See Freie v. Nix, C91-3029 (N.D. Iowa 1991) ("Freie II"). On November 22, 1991, Freie filed a motion to voluntarily withdraw hispetition. On December 12, 1991, Judge Edward J. McManus granted Freie's motion and dismissed his petition without prejudice.³

On October 5, 1998, Freie filed a second application for state post-conviction relief. See Freie v. State, No. PCCV017436 (Iowa Dist. Ct. Hancock Cnty. 1998) ("Freie III") ⁴ On May 5, 2000, the Iowa District Court for Hancock County denied Freie's second application for state post-conviction relief because it was untimely under Iowa's state statute of limitations for filing post-conviction relief actions. Id. Freie did not appeal. Id. On November 16, 2006, the petitioner filed a third application for state post-conviction relief. See Freie No. PCCV018312 (Iowa Dist. Ct. Hancock Cnty. 2006) ("Freie IV"). On April 25, 2007, the Iowa District Court for Hancock County denied Freie's third application for state post-conviction relief as untimely under Iowa's state statute of limitations. Id. Freie appealed the dismissal of Freie IV. On July 20, 2007, Freie filed a fourth application for state post-conviction relief. See Freie v. State, No. PCCV018414 (Iowa Dist. Ct. Hancock Cnty. 2007) ("Freie V"). After Freie filed a statement in support of jurisdiction, the Iowa Supreme Court dismissed Freie IV. See Freie IV, No. PCCV018312 (Iowa Dist. Ct. Hancock Cnty. 2007). On August 17, 2007, procedendo issued with respect to Freie IV. Id. On March 25, 2008, the Iowa District Court for Hancock County denied Freie's fourth application for state post-conviction relief, again as violating Iowa's statute of limitations. See Freie V, No. PCCV018414 (Iowa Dist. Ct. Hancock Cnty. 2008). On April 7, 2008, Freie appealed Freie V's dismissal. Id.

On June 14, 2010, while Freie's appeal of Freie V was pending, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this court. See Freie v. Fayram, C10-3032-MWB (N.D. Iowa June 14, 2010) ("Freie VI"). In his petition, Freie argued that: (1) his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him; (2) his conviction was obtained by the use of a coerced confession; and (3) he was denied effective assistance of counsel. Id. On July 16, 2010, I dismissed, without prejudice, Freie's § 2254 petition on initial review because his appeal of Freie V was still pending before the Iowa Supreme Court.

The Iowa Supreme Court has dismissed Freie's appeal in Freie V and issued procedendo. See Freie v.State, No. 08-0573 (Iowa Sup Ct.).⁵ On December 8, 2010, Freie filed the petition for a writ of habeas corpus pursuant to § 2254 which is presently before me. ("Freie VII"). In his petition, Freie argues that: (1) his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him; (2) his conviction was obtained by the use of a coerced confession; and (3) he was denied effective assistance of counsel. Id. On February 18, 2011, Freie amended his petition, expanding on his argument in support of one of the grounds asserted in his petition.

The case was referred to Chief United States Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B). Respondent Fayram filed a Motion to Dismiss, contending the petition is barred by the one-year period of limitations in the Antiterrorismand Effective Death Penalty Act ("AEDPA).⁶ See 28 U.S.C. § 2244(d). On July 6, 2011,Judge Zoss filed a thorough and comprehensive Report and Recommendation in which he recommended granting respondent Fayram's motion and dismissing Freie's petition. In his Report and Recommendation, Judge Zoss concluded that Freie did not file his petition within the AEDPA's one-year grace period for filing a habeas corpus petition. Judge Zoss further found Freie had not asserted any grounds for equitable tolling of the limitation period. Judge Zoss also explained that, while certain newly discovered evidence may bring a case within an exception to the one-year limitations period, that exception is only available to habeas petitioners who have pursued relevant evidentiary leads with due diligence. See 28 U.S.C. § 2244(d)(1)(D). Judge Zoss found that because all of Freie's claims were discoverable within the limitations period, this exception did not apply. For the same reason, Judge Zoss concluded that the exception for state-created impediments, see 28 U.S.C. § 2244(d)(1)(B), was inapplicable. Therefore, Judge Zoss found that Freie's petition was untimely under the AEDPA and recommended granting respondent Fayram's Motion to Dismiss and dismissing Freie's § 2254 petition.

Freie has filed an objection to Judge Zoss's Report and Recommendation. Freie contends that Judge Zoss erred in concluding that his current petition for a writ of habeas corpus is untimely. Respondent Fayram filed no objections to the Report and...