Moore v. Knight

• Decision Date: 20 May 2004
• Docket Number: No. 02-4257.,02-4257.
• Citation: 368 F.3d 936
• Parties: Thomas O. MOORE, Petitioner-Appellant, v. Stanley KNIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

368 F.3d 936

Thomas O. MOORE, Petitioner-Appellant, v. Stanley KNIGHT, Respondent-Appellee.

No. 02-4257.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2004.

Decided May 20, 2004.

Richard M. Hiller (argued), Shefsky & Froelich, Chicago, IL, for Petitioner-Appellant.

James B. Martin (argued), Steve Carter, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

This habeas corpus appeal arises from Thomas Moore's conviction for rape and criminal deviate conduct in 1992. Moore raises two substantive issues on appeal: (1) whether the state trial court judge violated his right to a fair trial by authorizing ex parte communications with the jury, and (2) whether the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In reviewing these appeals, we find that the trial court judge's ex parte communications with the jury were inappropriate and interfered with Moore's constitutionally guaranteed right to a fair trial. Accordingly, we reverse and remand to the District Court to issue Moore's writ, unless the state elects to retry him within 120 days.

DISCUSSION

Shortly after 11 p.m. on September 14, 1987 a man posing as a police officer used flashing lights on his car to pull over a woman identified as "A.B.". During the course of the stop, the man asked for the woman's license and registration and had her perform a field sobriety test. Following the test, he put plastic restraints on her wrists, blindfolded her and placed her in his car. The man drove A.B. to multiple locations and raped her twice. Following these events, he returned the victim to her car and sped away.

At the subsequent trial, Moore presented an alibi defense that he had been with his ex-wife from 7 p.m. until 12:20 a.m. on the night in question and returned to the home he shared with his girlfriend around 12:20 a.m. He also argued that the victim's description of her attacker did not match his physical description.

Moore was convicted; he now raises two issues on appeal.

I. Ex Parte Communications with Jury

During its deliberations at the conclusion of the trial the jury sent a note to Judge Kathy Smith. The note contained factual questions regarding Moore's alibi; specifically, the jury asked where Moore lived, the distance between the Moore's home and the location of the crime, and the time Moore arrived home on the night in question. Judge Smith responded to the questions, via the Bailiff, and did not discuss the matter with either attorney. None of this communication occurred on the record. Just prior to sentencing, the Judge informed Moore's attorney of the jury's questions; this also occurred off the record. Moore's attorney objected; the Judge proceeded with sentencing. Moore now argues that the Judge's actions constituted ex parte communication with the jury in violation of his right to a fair trial.

Prior to determining the substantive value of this appeal we first examine its timeliness. We review de novo the District Court's decision to dismiss a habeas corpus appeal for being untimely. Lloyd v. Van Natta, 296 F.3d 630, 632 (7th Cir.2002). Under 28 U.S.C. § 2244(d)(1), a defendant has a one-year deadline to file an application for a writ of habeas corpus. Pertinent to this case, the year will run from the later of "the date on which the judgment became final" or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(A),(D) (2003). Moore contends that the triggering date was May 18, 1998 — the day he received his investigator's letter detailing the results of his investigation into the ex parte communications. The government contends that Moore actually was aware of the existence of the claim prior to the end of his trial, when Judge Smith communicated to both attorneys that she had declined the jury's request to review testimony.

The sequence of events relevant to this issue are as follows. Moore's trial took place in the fall of 1992; his conviction became final on March 28, 1997. In early 1997 one of Moore's friends, Mike Storms, informed him that, based on overheard conversations, he believed the jury was "improperly led or coerced." (Br. of Petitioner-Appellant at 11.) Moore asked Storms to investigate. On May 18, 1998, Storms sent Moore a letter revealing the results of his investigation; the letter also contained two affidavits from jurors in question. Moore filed his state Petition for Post-Conviction Relief on January 5, 1999; one of the issues raised in the Petition was the ex parte communications. The Judge considered the issue on its merits and denied Moore's appeal. After following proper procedural routes, Moore's appeal appeared before the United States District Court for the Northern District of Indiana. The District Court dismissed Moore's petition for exceeding the limitation period under 28 U.S.C. § 2244.¹ In subsequently granting Moore's certificate of appealability, we asked counsel to brief three issues, one of which was the timeliness of the appeal.

In determining the timeliness of this appeal we must consider two issues, first, the date on which Moore discovered the factual predicate of his claim, and second, whether Moore exercised due diligence in discovering this information. We agree with Moore that his appeal regarding the ex parte communications was appropriately raised within one year of his discovering the factual predicate for his claim. Prior to receiving the letter and affidavits, Moore did not know any specific information about what had transpired between the Judge and the jurors — he could only speculate as to what may have been said. Judge Smith's own explanation, which occurred off the record and after the fact, was that she answered the juror's note, "by telling them that she could not give information or could not answer those questions" — a statement that, if true, did not present a basis for an actionable claim. (Br. of Petitioner-Appellant at 23.) It was not until Moore discussed the matter with Storms that he had reason to suspect the content of Judge Smith's communications to the jury was different than she had represented, and it wasn't until Moore obtained the jurors' affidavits that he had specific, concrete information regarding what had transpired, upon which he could base his claim.² Specifically, whereas Judge Smith had indicated to Moore and his attorney that she simply refused to answer the questions, Storms' investigation revealed at least one juror believed the answers conveyed by the Bailiff contained commentary on the content of testimony presented at trial (a situation that could have prejudiced the outcome of his trial). It follows that Moore simply did not have enough information to state his claim until he received the May 18, 1998 letter from Storms.

Alongside the issue of when Moore discovered the factual predicate for his claim is the question of whether Moore exercised due diligence in conducting his investigation of the incident. Although there was a lag between Storms' initial discussion with Moore indicating that the jurors may have had improper ex parte communications during trial and Moore's ultimate receipt of Storms' letter, we find that Moore was not dilatory in his investigation. We have previously noted that a due diligence inquiry should take into account that prisoners are limited by their physical confinement. Montenegro v. United States, 248 F.3d 585, 592 (7th Cir.2001), rev'd on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir.2001); see also Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.2000) (finding a prisoner's access to published legal materials is established once the prison library receives the materials, not when the materials were published). Similarly, we agree with the Second Circuit's observation that 28 U.S.C. § 2244 does not require "the maximum feasible diligence" but only "`due,' or reasonable diligence." Wims v. United States, 225 F.3d 186, 190 n. 4 (2d Cir.2000). Considering the facts within these parameters, we agree that Moore acted with due diligence. While imprisoned, he employed Storms to conduct the investigation on his behalf; this employment began as soon as Moore had reason to suspect a harmful error in procedure and we do not find he was unreasonable in awaiting the results of Storms' somewhat slow investigation.

Having cleared the first hurdle of timeliness, we now turn to the merits of Moore's claim. The Antiterrorism and Effective Death Penalty Act of 1996 sets out the proper standard of review for this appeal: We will not grant the writ with respect to any claim that was adjudicated on the merits in the state court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Factual findings made by a State court are presumed correct, but may be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The Confrontation Clause of the Sixth Amendment provides defendants the right to be present at all critical stages of the criminal proceedings. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th Cir.2001). The Due Process Clause supplements this right by protecting the defendant's right to be present during some stages of the trial where the defendant's ability to confront a witness against him is not in question — ex parte communications between the judge and jury fall into this category. United States v. Gagnon, 470...