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McGiboney v. Yordy

United States District Court, D. Idaho

March 26, 2019

KEITH YORDY, Warden of the Idaho State Correctional Institution, Respondent.


          Ronald E. Bush Chief U.S. Magistrate Judge


         In this habeas corpus matter, Petitioner Joshua Lee McGiboney (“Petitioner” or “McGiboney”) challenges his state court convictions of robbery, aggravated battery, and burglary-all of which stemmed from an incident that occurred on April 3, 2008. The parties are familiar with the underlying facts, and the Court will not repeat them except as necessary to explain this decision.

         Now pending before the Court is Respondent's Renewed Motion for Summary Dismissal. The Court previously determined that Petitioner's claims were procedurally defaulted but that it did not have sufficient information to determine whether cause and prejudice, or actual innocence, excused the default. (See Dkt. 34.) The Court therefore ordered discovery, pursuant to Rule 6 of the Rules Governing § 2254 Cases (“Habeas Rules”), as to the following types of evidence:

(1) State's trial exhibits 61 (gun magazine), 61B (unused round), 61C (unused round), 61D (unused round); 62 (used round), 63 (fired shell casing), 64 (fired shell casing), 65 (fired shell casing), 66 (unfired 9MM round), and 67 (unfired 9MM round), to be sent to Bode Cellmark Forensics for testing; (2) “all notes, DNA profiles, allele tables, test results, charts, and reports associated with forensic DNA testing” in Petitioner's case that are in the possession of the Idaho State Police; [and] (3) records from Buckhorn Gun and Pawn related to the firearm at issue in Petitioner's case.

(Id. at 20.)

         Although the Court denied Petitioner's request for discovery as to four other categories of evidence, Petitioner has utilized public records requests to obtain certain evidence in those categories:

(4) crime scene photographs in the possession of the Ada County Prosecuting Attorney's Office; (5) crime scene photographs in the possession of the Ada County Public Defender's Office; (6) two audio CDs of officers' initial witness interviews in the possession of the Ada County Prosecuting Attorney's Office; and (7) two audio CDs of officers' initial interviews in the possession of the Ada County Public Defender's Office (to the extent they were produced during discovery in Petitioner's underlying criminal proceedings).

         The parties stipulated to expand the scope of discovery to two additional categories of evidence. Pursuant to the stipulation, Petitioner subpoenaed (8) “the Boise Police Department for an unredacted copy of a letter from American Bankers Insurance Company of Florida” and (9) “America Bankers Insurance company of Florida, or its successor in interest, for documents related to the loss and the paid claim recited in the letter.” (Dkt. 24 at 1-2.) Petitioner has obtained this evidence, and the Rule 6 discovery has been completed.

         Petitioner acknowledges that discovery with respect to Categories 1 through 3 was not fruitful. (Dkt. 30 at 2 (“Buckhorn Gun and Pawn has informed McGiboney's counsel that, despite searching, it was unable to find ownership or sales records for the gun. And, Bode Cellmark did not find sufficient material on the spent and unspent shell casings, and the gun magazine, to test for a match to the known DNA profiles.”) (internal citations omitted).) However, relying on (1) evidence previously presented to the state courts and (2) evidence in Categories 4 through 9 that was recently obtained, Petitioner renews his argument that all of his claims are excused from procedural default based on the actual innocence exception.[1] See Schlup v. Delo, 513 U.S. 298, 329 (1995).

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Dkt. 9.) Having fully reviewed the record, including the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). As explained below, the Court also finds that an evidentiary hearing on actual innocence is unnecessary.

         For the reasons that follow, the Court concludes that, although Petitioner has submitted impeachment evidence with more than de minimis value-primarily with respect to the credibility of the victim-he has not met the strict standards of the actual innocence gateway exception. Accordingly, Petitioner has not established an excuse for the default of his habeas claims, and the Court will grant Respondent's Renewed Motion and dismiss the Petition with prejudice.


         1. The Actual Innocence, or Miscarriage-of-Justice, Exception to Procedural Default

         A procedurally defaulted claim may be heard on the merits if the petitioner demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice, meaning that “‘a constitutional violation has probably resulted in the conviction of someone who is actually innocent.'” Schlup, 513 U.S. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). In asserting actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324.

         A court considering whether a petitioner has established actual innocence in light of that “new reliable evidence” must consider “all the evidence, old and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). An actual innocence analysis “requires a holistic judgment about all the evidence and its likely effect on reasonable jurors applying the reasonable-doubt standard”; in other words, the federal court must “make a probabilistic determination about what reasonable, properly instructed jurors would do.” House, 547 U.S. at 538-39 (2006) (internal quotation marks omitted). A court must assess the “likely impact” of the new reliable evidence “on “reasonable jurors in light of the complete record.” Lee, 653 F.3d at 945.

         To apply the actual innocence exception, a court must conclude that, “in light of all of the evidence, ‘it is more likely than not that no reasonable juror would have found [the petitioner] guilty beyond a reasonable doubt.'” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). That is, the petitioner must show that every reasonable juror would vote to acquit.

         This is a particularly exacting standard, one that will be satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). Indeed, cases where the Schlup standard has been satisfied have “typically involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). However, because a Schlup claim is, by definition, accompanied by “an assertion of constitutional error at trial, ” the petitioner's conviction “may not be entitled to the same degree of respect as one ... that is the product of an error-free trial.” Schlup, 513 U.S. at 316.

         Direct evidence of innocence is not necessarily required for an actual innocence gateway claim; in rare circumstances, impeachment evidence alone can satisfy the Schlup standard. See Sistrunk v. Armenakis, 292 F.3d 669, 676 (9th Cir. 2002). But impeachment evidence can meet the Schlup standard only if it is so compelling that it “fundamentally call[s] into question the reliability of [the petitioner's] conviction.” Id. at 677.

         For example, a “detailed third-party confession” that “undermine[s] the validity of the prosecution's entire case” would be compelling impeachment evidence. Id.; see also Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (actual innocence standard met where witness whose trial testimony led to petitioner's conviction later gave a sworn confession to the crime); Larsen, 742 F.3d at 1096 (actual innocence standard met with “witnesses who were never called to speak on his behalf at his trial and who gave credible testimony that someone other than [petitioner] committed the acts for which he was convicted and sentenced”). However, evidence that “would not have cast doubt on the first-hand account of the victim, who positively identified [the petitioner] in open court” would not. Sistrunk, 292 F.3d at 677. The actual innocence exception is not satisfied by evidence that is speculative, collateral, cumulative, or “insufficient to overcome otherwise convincing proof of guilt.” Larsen, 742 F.3d at 1096.

         Further, if the evidence relied upon is not truly “new” but, instead, was in substance already before the jury, it is unlikely to weigh heavily in favor of actual innocence. See Lee, 653 F.3d at 944-45 (holding that (1) evidence of potential misidentification was insufficient for actual innocence when “[m]uch of th[at] evidence was presented to [petitioner's] trial jury, and (2) “[g]iven all that [petitioner's] jury heard about [the second potential perpetrator] at trial, ” it was not “more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.”) (internal quotation marks omitted).

         Petitioner claims that he is entitled to application of the actual innocence exception without the need to further develop the evidence on which he relies. Alternatively, he asserts that, “if the Court finds that there are unresolved factual issues, ” an evidentiary hearing is warranted. (Dkt. 30 at 2.)

         An evidentiary hearing on actual innocence “is not necessary ... if the court determines as a matter of law that [the petitioner] cannot satisfy the standard. Clark v. Lewis, 1 F.3d 814, 820 (9th Cir. 1993) (cause-and-prejudice context). And in considering an actual innocence gateway claim, including whether to hold a hearing on such a claim, the Court has the discretion to assess the reliability and probative force of the petitioner's proffer, including making some credibility determinations, if necessary. A district court's assessment of the credibility and reliability of the new evidence is not corralled by “a standard appropriate for deciding a motion for summary judgment.” Schlup, 513 U.S. at 332. Rather, a district court “must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Id. Hence, unlike in a Rule 56 context, the Court is not prohibited from weighing the evidence, and-in so doing-it “may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” Id.

         As explained below, there is “ample support” in the record for a conclusion that the “newly-discovered evidence d[oes] not tip the Schlup determination in [Petitioner's] favor.” Stewart v. Cate, 757 F.3d 929, 943 (9th Cir. 2014). The Court need not hold an evidentiary hearing on this issue because, as a matter of law, Petitioner is unable to establish that he is actually innocent. See Clark, 1 F.3d at 820.

         2. The Two Differing Theories of the Case

         Petitioner testified that, on April 3, 2008, he was walking alone on Orchard Street, on his way to a bowling alley to meet a friend named Darby Lusk. He stated that a person, whom he learned later was Ryan Lowe, yelled at him, grabbed him, and threatened him with a gun. The gun was Lowe's, not Petitioner's. A struggle ensued, and Petitioner hit Lowe in the head with a landscaping brick that he found on the ground. Petitioner dropped the brick and began to run away. Lowe warned Petitioner to stop or Lowe would shoot him. Petitioner slowed down but kept walking away with his hands in the air. Lowe fired a shot toward Petitioner. There was another struggle, and Lowe fired several more shots, one of which injured Lowe's roommate, David Bergerson, who had by that point joined the fray. Petitioner grabbed the gun and ran away. No. other witnesses testified for the defense. (State's Lodging A-2 at 1151-69, 1177-79.)

         The state's theory was vastly different and was supported primarily by the testimony of Lowe and Bergerson. (See Id. at 339-479.) According to that testimony, Petitioner and two other individuals burglarized and robbed a residence shared by Lowe, Bergerson, and Bergerson's girlfriend and infant son. These four residents were in the house at the time of the robbery, but the perpetrators personally interacted only with Lowe and Bergerson. After searching Lowe's room and taking various items of property, the robbers began to leave. Lowe immediately ran after the perpetrators, two of whom got away and left the scene in a car. Lowe caught Petitioner, and they began to struggle.

         Petitioner, not Lowe, drew a gun. Petitioner hit Lowe in the head with the gun and the two fought over the gun. Although Lowe's fingerprint was found on the magazine- inside the gun-Lowe testified that he might have touched the magazine if it was ejected during the altercation.[2] Bergerson, after ensuring the safety of his girlfriend and son, retrieved a knife and stabbed Petitioner in the leg in an attempt to help Lowe. Petitioner fired the gun and shot Bergerson in the shoulder.[3] Petitioner fled the scene and dropped the gun. He was apprehended shortly afterwards.

         In addition to Lowe and Bergerson, the following trial witnesses-among other evidence-supported the state's theory: (1) Bergerson's girlfriend, April Williamson, who testified that Bergerson woke her up immediately after the robbery and that she watched, through her bedroom window, as two men ran across the street, got into a car, and sped away (id. at 583-86); (2) Nicholas Anderson, a neighbor who testified that he saw four to six individuals in a confrontation outside Lowe's residence and that he saw Petitioner draw and fire the gun (id. at 617-37); (3) Michael Roberts, who encountered Petitioner later that night and who testified that Petitioner was acting suspiciously, by lingering in a backyard after he was told to leave and by jumping a fence to get away rather than walking down an open path (id. at 667-71); and (4) Officer Michael Richmond, who apprehended Petitioner and who testified that Petitioner initially looked at Richmond but then started to walk away (id. at 694-96).

         The jury believed the prosecution's evidence and found Petitioner guilty.

         3. Petitioner Has Not Established Actual Innocence to Excuse Procedural Default

         Petitioner relies on several pieces of evidence not presented at trial to argue that no reasonable juror could now find him guilty beyond a reasonable doubt. Having carefully considered this evidence, along with the trial evidence, the Court concludes that Petitioner cannot meet the Schlup standard.

         A. Affidavit of Darby Lusk

         Darby Lusk, the friend Petitioner testified he was meeting the night of the robbery, stated in a 2010 affidavit that she had plans to meet Petitioner at the bowling alley the night of the robbery. Lusk said that she tried to contact Petitioner's trial attorney, but her calls were never returned. (Dkt. 30-2 at 2.) This affidavit supports Petitioner's testimony at trial as to “why he was on Orchard Street that night”-he was going to meet Lusk at the bowling alley. (Dkt. 30 at 18.)

         This evidence has only slight relevance, however. That Petitioner had planned to meet Lusk that evening does not mean that he did not also rob and assault Lowe and Bergerson. It also fails to contradict April Williamson's testimony that she saw two men run across the street away from the residence, get into a car, and speed away-indicating that Petitioner was not simply walking down the street by himself that night. The Court thus gives the Lusk affidavit little weight.

         B. Fingerprint Examiner and Firearms Expert

         Petitioner has submitted the affidavit of Robert Kerchusky, a fingerprint examiner. Kerchusky states that he examined the report regarding Lowe's fingerprint on the magazine of the gun, the photographs of the magazine, and the photographs of the fingerprint. Kerchusky's “professional opinion” is that Lowe left the print “when he was loading the magazine” and that the print “was not placed there during a struggle between two people for the possession” of the gun (Dkt. 30-3 at 2-3.) The affidavit also claims that Lowe's “print is not smeared and of good quality, indicating that the magazine was stable when the print was deposited.” (Id. at 3.)

         Petitioner has also presented the Declaration of Don Cameron, a firearms expert. Cameron states that a semiautomatic firearm, like the one at issue in this case, must be loaded when the magazine is outside of the gun and that, after the magazine is loaded, it must be inserted back into the gun in order for the gun to fire. (Dkt. 30-4 at 3.) Cameron opines as follows:

The exterior walls of the magazine can only be touched when the magazine is outside of the pistol. It would be impossible for a finger or thumb print to be put on the magazine when any other part of the pistol is touched with the magazine inserted in the pistol. The only way a finger or thumb print could be found ...

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