Newell v. Hanks
| Citation | 283 F.3d 827 |
| Decision Date | 12 March 2002 |
| Docket Number | No. 00-1558.,00-1558. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Parties | Michael A. NEWELL, Petitioner-Appellant, v. Craig HANKS, Respondent-Appellee. |
Jessie A. Cook (argued), Terre Haute, IN, for petitioner-appellant.
Adam Dulik (argued), Office of Attorney General, Indianapolis, IN, for respondent-appellee.
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
On April 24, 1997, Michael Newell filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed the petition as untimely, or alternatively for lack of merit, and Newell appeals. We vacate the judgment and remand the case for further proceedings.
In 1990 Newell was convicted in the Superior Court of Knox County, Indiana, of dealing cocaine, Ind.Code § 35-48-4-1, and was sentenced to 30 years' imprisonment. The evidence at trial had showed that an individual named Fred Wells, driving one of Newell's vehicles, met police officer Richard McGee and confidential informant Brad Foote at a Quickstop gas station in Vincennes, Indiana, where he sold McGee a bag of cocaine for $950. McGee testified that when he asked whether the substance was "Newell's stuff," Wells replied, "Yea, I just came from there."
The sale had been preceded by the following telephone conversation between Newell ("Mike") and Foote ("Brad"), recorded and corroborated at trial by police officer Dennis Holt:
The audiotape and transcript of this conversation, together with the testimony of officers McGee and Holt, were apparently the only pieces of evidence linking Newell to the charged transaction. Neither Wells nor Foote testified at Newell's trial.
On April 24, 1997, Newell (through his attorney) filed his first § 2254 petition, in which he principally alleges that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealing pretrial communications that took place between prosecutor Lee Hoefling and Wells. To support his claim, Newell presented the transcript of a deposition taken from Wells on May 30, 1996, during which Wells testified that, before Newell's trial date, Wells met with prosecutor Hoefling and officers Holt and McGee and told them that the cocaine he sold McGee did not belong to Newell but instead to an individual named Doug Jackson. Wells further testified in his deposition that he told Hoefling that he would not testify against Newell. Hoefling then allegedly proposed the following deal: if Wells took the stand at Newell's trial and refused to testify on Fifth Amendment grounds, Wells would receive only six years for the cocaine charge pending against him. Wells accepted this agreement, which was communicated to him by his lawyer, and invoked his Fifth Amendment rights, first at a pretrial deposition scheduled by Newell's trial attorney and then again at Newell's trial. He later received a six year sentence, but not for the drug charge.1 Wells stated in his deposition that, had he testified at trial, he would have denied having told McGee that the cocaine was Newell's.
According to Newell's petition, prosecutor Hoefling failed to disclose any of the above information, not even in response to discovery requests that would have required its production. Newell's petition further claims that Hoefling affirmatively concealed the existence of Wells's cooperation agreement, going so far as to "cause[] the records of the Knox Superior Court Division 1 to reflect the State's objection to Wells's Motion for Bond Reduction (which was granted) when, in fact, the State had affirmatively agreed to his release on the date of his cooperation." Moreover, Newell claims, Hoefling told the jury during his opening statement that he had subpoenaed Wells but could not predict whether he would testify, and argued that the out-of-court statement submitted through McGee's testimony was not hearsay because Wells was under subpoena, "there by implying that he believed Wells would testify and be subject to cross-examination." Newell also alleges that Hoefling pointed out in his closing argument that Newell did not challenge Wells's out-of-court statement "despite the fact that Wells himself had not testified and that, by virtue of the State's actions, Mr. Newell was deprived of his opportunity to challenge that statement by cross-examination."
Newell's petition raises a second Brady argument: that Hoefling concealed evidence of the state's agreement with Foote "governing his activities as a confidential informant." Newell elaborated on this claim in additional pleadings before the district court, alleging that Foote's absence at trial was in part the result of the state's assistance and that the state had the ability to locate Foote at all times. Hoefling, however, allegedly told the jury during his opening statement that an individual named David Schlomer had threatened Foote, and later elicited testimony to the effect that Schlomer was a friend of Newell's. Newell contends that the implication of Hoefling's statements was that Newell "had participated in the transmission of threats to Brad Foote and, thereby, contributed to his absence at trial." But, according to Newell, "[a]t the time he gave his Opening Statement, [Hoefling] had no basis for asserting that Foote had been threatened by anyone including Mr. Schlomer and, in fact, no such threats were made."
On December 31, 1997, the district court, at Newell's request, dismissed his petition without prejudice on the ground that he had presented a "`mixed' petition in the sense that some of his habeas claims have been exhausted in the Indiana courts, while other claims are now being litigated in the Indiana courts through a successive petition for post-conviction relief." (More precisely, Newell had pending a motion for leave to file a successive state post-conviction petition.) Judgment was entered on January 5, 1998.
On September 8, 1998, the Indiana appeals court denied Newell's motion for leave to file a successive post-conviction petition, stating that "having examined the Petitioner's Petition for Successive Post Conviction Relief [the court] finds that the Petition conclusively shows that the Petitioner is entitled to no relief." Over two months later, on November 20, Newell returned to federal court and moved to "redocket his Petition for Writ of Habeas Corpus, amending said Petition only insofar as the Petition contains references to the procedural status and disposition of his Petition for Successive Post Conviction Relief before the Indiana Court of Appeals." On November 25 the district court granted the motion and ordered that the "judgment entered on the clerk's docket on January 5, 1998, is vacated and the clerk shall reopen the action on the docket."
After further proceedings, however, the district court determined that Newell's amended petition was untimely and accordingly dismissed the case with prejudice. The court first reasoned that Newell's original filing on April 24, 1997, missed the cutoff date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") by one day. Alternatively, the court held that, even if Newell's original petition was timely, his amended one was not because it could not "relate back" to the earlier filing date. The court also purported to reach the merits of the case and held that irrespective of untimeliness Newell was not entitled to relief because "the decisions of the Indiana Court of Appeals — and principally its decision affirming the trial court's denial of Newell's [first] petition for post-conviction relief ... reasonably applies the law and principles applicable to Newell's claims as established by the Supreme Court of the United States." In January 2001 this court granted a certificate of appealability on three issues: (1) whether AEDPA's one-year grace period ended on April 23 or April 24, 1997; (2) whether the district court erred in dismissing Newell's original petition and whether his amended petition relates back to the earlier filing date; and (3) whether Newell's constitutional rights were violated by the prosecutor's misconduct.
AEDPA imposes a one-year statute of limitations on habeas corpus petitions brought by state prisoners, 28 U.S.C. § 2244(d), but for prisoners whose convictions became final prior to AEDPA's enactment on April 24, 1996, there was a one-year grace period in which to file. Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In holding that Newell's original filing on April 24, 1997, was untimely, the district court relied on...
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