Neuendorf v. Graves
| Decision Date | 04 August 2000 |
| Docket Number | No. C 99-2083-MWB.,C 99-2083-MWB. |
| Citation | 110 F.Supp.2d 1144 |
| Parties | Scott D. NEUENDORF, Petitioner, v. Leonard GRAVES, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
David N. Nadler, Cedar Rapids, IA, for Petitioner.
Thomas W. Andrews, Asst. Iowa Atty. Gen., Des Moines, IA, for Respondent.
WITHDRAWAL OF REFERRAL TO MAGISTRATE JUDGE AND MEMORANDUM OPINION AND ORDER REGARDING RESPONDENT'S MOTION TO DISMISS
Seeking a gateway to federal habeas corpus review, despite the respondent's contention that the present petition is untimely and procedurally barred, the petitioner asserts that he is "actually innocent" of the crime of second-degree sexual abuse of which he was convicted in 1992. No Circuit Court of Appeals has expressly held that the "actual innocence" gateway to federal habeas corpus review of defaulted claims remains open after codification of statutory time limitations and exceptions in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, although some courts have suggested that it does. Even if the gateway remains open, the court must determine whether this petitioner's allegations of "actual innocence" permit him to walk through it to obtain federal habeas corpus review.
Before considering the respondent's motion to dismiss the petitioner's petition for a writ of habeas corpus, however, this court must first address its prior referral of this matter to a magistrate judge. By order dated November 22, 1999, the undersigned referred this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, in its entirety, to United States Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B). However, the court finds that it is now appropriate to withdraw that referral. Therefore, the November 22, 1999, referral of this matter to the magistrate judge will be withdrawn and the undersigned will rule upon the respondent's pending motion to dismiss.
Petitioner Scott D. Neuendorf filed the present action for habeas corpus relief on or before August 24, 1999,1 seeking relief from his conviction for second-degree sexual abuse on March 7, 1992, after a jury trial. Neuendorf was sentenced to twenty-five years imprisonment on his conviction. Neuendorf's conviction was reversed on appeal to the Iowa Court of Appeals, but was ultimately reinstated by the Iowa Supreme Court. See State v. Neuendorf, 509 N.W.2d 743 (Iowa 1993). Neuendorf thereafter filed a state application for post-conviction relief, which was denied by the Iowa district court and the Iowa Court of Appeals in unpublished decisions. The Iowa Supreme Court denied further review, and procedendo from the Iowa Court of Appeals issued on August 26, 1997. Neuendorf filed a second state post-conviction relief application on December 1, 1998, but the Iowa district court dismissed that application as time-barred under IOWA CODE § 822.3 on April 1, 1999. Neuendorf did not appeal the denial of his second post-conviction relief application.
Instead, on or before August 24, 1999, Neuendorf filed the present petition for federal habeas corpus relief. In his federal petition, Neuendorf asserts, as "Ground One," that he received ineffective assistance of counsel — amounting to a total failure of counsel to provide representation — during his prosecution for second-degree sexual abuse, making his conviction fundamentally flawed, and, as "Ground Two," that other evidence not originally introduced at his trial can now be produced to demonstrate that he is actually innocent of the crime of which he was convicted. Although Neuendorf does not specifically identify in his petition the form or source of the "new evidence" on which he relies, he does contend that it is "actual proof beyond trial testimony that substantiates [Barbara McKinney's] presence," that is, presence of a defense witness at the time Neuendorf contends the victim, Maria Spates, agreed to have sex with Neuendorf and his companions for money, "and [the witness's] 20-year acquaintance with Maria Spates," which Spates denied at trial. Petition, ¶ 11.B.1. Neuendorf has always contended that no sexual abuse occurred, because Spates had engaged in consensual sex for money, and he now contends that this new evidence establishes his actual innocence, because "[i]t is not, for example, second degree sexual abuse to engage in consensual intercourse with a prostitute." Id.
On October 22, 1999, the respondent answered Neuendorf's petition and moved to dismiss it on the grounds that the petition was time-barred, that it failed to comply with Rule 2(c) of the Rules Governing Section 2254 Cases, and that Neuendorf's "actual innocence" claim is improperly exhausted, procedurally defaulted, fails to state a claim on its face, and fails on its merits.2 Following the filing of respondent's motion to dismiss, a magistrate judge of this court sua sponte directed the Clerk of Court to appoint counsel to represent Neuendorf on December 2, 1999.
Notwithstanding appointment of counsel, Neuendorf initially filed a pro se resistance to the respondent's motion to dismiss on December 10, 1999,3 in which he contended that he had not yet been afforded the opportunity to present his evidence of "actual innocence," but that the evidence is strong enough to overcome the court's confidence in the outcome of his state trial. He contends that his "actual innocence" opens a gateway to review, even if his claims might otherwise be timebarred. As to the nature of his evidence of "actual innocence," Neuendorf contends that "[r]ecanted testimony of the government's star witness is the quality of evidence Petitioner refers to here" and that "evidence pertaining to the government's subornation of perjury is the quality of formerly unavailable facts at the time of the Petitioner's trial." [Petitioner's Pro se] Response to Motion to Dismiss and Brief in Support at ii. However, Neuendorf did not immediately identify the source of any "new evidence," instead attacking the credibility of Spates's testimony as inconsistent with other evidence at trial and varying so greatly in the degree of detail on various matters that Neuendorf contends Spates's testimony showed it had been "coached" and that the prosecution had suborned "perjury." The only indication of the source of any "new evidence" appears in the penultimate paragraph of Neuendorf's pro se resistance, in which Neuendorf asserts, "There was talk about Maria [Spates] recanting her trial testimony, to which Barbara McKinney can testify to in an evidentiary hearing." Id. at 5.
Neuendorf then filed a pro se "Supplemental Resistance to State's Motion to Dismiss Petition" on December 27, 1999, in which he argued, in support of the viability of "Ground One" of his petition, that the prosecutor had engaged in misconduct, consisting of subornation of perjury by Maria Spates concerning testimony about her acquaintance with McKinney, whether McKinney was present at the time Spates entered the car with Neuendorf and his companion, and the extent of Spates's injuries received during the sexual abuse incident. Neuendorf contends that the prosecutor's misconduct was so egregious that it caused a fundamental miscarriage of justice, and that trial counsel was ineffective, because she let the perjured testimony go unchallenged, which also tarnished the constitutionality of his conviction. Neuendorf asserted that, "After the trial and conviction of Scott Neuendorf, McKinney came forward with further information (given to her by Spates and others) that Spates had lied about Scott's involv[e]ment and other key portions of her trial testimony." [Petitioner's Pro Se] Supplemental Resistance to State's Motion to Dismiss Petition at ¶ 4. Neuendorf does not explain when and how this information came to McKinney or when and how it was discovered by Neuendorf.
In a supplement to his motion to dismiss, filed on December 29, 1999, the respondent challenged what he described as Neuendorf's "newly minted" claim of prosecutorial subornation of perjury. Supplement to Respondent's Motion to Dismiss at 1. Treating the subornation of perjury allegations as an elaboration of Neuendorf's contention that there is "new evidence" of his actual innocence, the respondent contends that the evidence is insufficiently identified to amount to more than a bald assertion of its existence and effect. Treating the allegations of subornation of perjury as a separate claim — which the respondent contends has not in fact been pleaded in the present petition — the respondent asserts that any subornation of perjury claim is "unexhausted," and would therefore make Neuendorf's present petition a "mixed...
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