Oklahoma Law Enforcement Embarrassed Again Ada Cop Beats Wife
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Before EBEL and ANDERSON, Circuit Judges, and CROW,(**) District Guess.
Matthew Thompson appeals from the commune courtroom'due south deprival of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.(1) The petition asserts constitutionally ineffective aid of trial counsel primarily on ii grounds: an alleged failure to investigate the background of Judy Gaumond to discover evidence damaging to her credibility and a prior rape accusation; and poor interview techniques that failed to uncover and present exculpatory testimony from Ms. Gaumond'southward live-in boyfriend, Michael Bryan. The district court, adopting the findings and recommendations of the magistrate gauge, concluded that much of the information proffered by Mr. Thompson would not have been open-door in court, and the remainder would not have changed the event of the trial. Appropriately, counsel was non constitutionally ineffective.
On appeal, Mr. Thompson, through counsel, reurges the claims raised below and asserts in addition that the commune court erred in failing to obtain and review part of the state trial record and to hold an evidentiary hearing. Counsel asks this court to remand the case to the district court for further proceedings. In his pro se brief, Mr. Thompson contends farther that the district court erred by refusing to consider affidavits submitted in the federal proceedings past seven of the twelve jurors and evidence of events involving Ms. Gaumond's behavior in years following the trial. He also argues other examples of his trial counsel's failure to investigate the facts and obtain favorable evidence and failure to press inconsistencies and errors in Ms. Gaumond's testimony and prior statements. Finally, Mr. Thompson alleges that the country trial judge was biased confronting him. He seeks an order directing habeas relief and a new trial in the state courtroom. For the reasons stated below, we affirm.
Mr. Thompson was convicted by a Pontotoc County, Oklahoma, district court jury of raping Judy Gaumond on March 17, 1991. The jury acquitted him on a charge of sodomy. On December eight, 1992, the court sentenced Mr. Thompson to fifteen years in prison. According to the state's brief, he was released on July ix, 1999.(2)
Certain facts are undisputed outset with Mr. Thompson's admission that he had a sexual encounter with Ms. Gaumond old afterwards 3:00 a.g. on Sun, March 17, 1991, in Ada, Oklahoma. Physical contact included vaginal penetration past Mr. Thompson and at least digital penetration of Ms. Gaumond's rectum. The 2 had no previous relationship. The encounter took identify on a pile of carpet in a vacant flat to which Mr. Thompson had transported Ms. Gaumond by car. Mr. Thompson was admittedly nether the influence of drugs and alcohol. No witnesses saw Ms. Gaumond and Mr. Thompson together.
At about 5:45 a.grand. on March 17, 1991, two women out for an early walk came upon Ms. Gaumond walking frantically in the area of tenth and Broadway in Ada. Ms. Gaumond asked directions to the police station, told them she had been raped, and began crying. Officeholder Lynn Haines of the Ada Police Department responded to a 911 call placed by one of the women. He reported that he found Ms. Gaumond in a state of hysteria. She was hobbling on the confront and scraped on her neck, chest, elbows, and knees. Her shirt was torn.
Afterward that forenoon, at the police force station, Ms. Gaumond tentatively identified Mr. Thompson's picture in a college yearbook and in a photograph lineup. Thereafter the police arranged for Ms. Gaumond to make five tape recorded telephone calls to Mr. Thompson and to accept a recorded meeting in an attempt to obtain incriminating statements. Although Mr. Thompson's conversations were probative, they were conciliatory and cautious. He did not directly admit either to rape or sodomy, but acknowledged the episode. The police force then videotaped an interview with him in which he gave ane version of the encounter, followed the next day by another interview in which he recanted and confessed to another version of the facts, but not to rape or sodomy. He asserted that the encounter was consensual, and that was his defense at trial. The sound and videotapes were played at trial every bit part of the prosecution's case. Mr. Thompson did not testify.
The surrounding facts were contested at trial. Mr. Thompson claimed that he struck up an associate with Ms. Gaumond at Hardee's restaurant effectually 3:00 a.k. on the 17th. She agreed to accompany him to drinkable beer, agreed to get to the apartment subsequently the two stopped at a Texaco station for beer, and consented to the ensuing sexual encounter. He asserted that the two parted amicably with him dropping her off, at her asking, near the apartment she shared with Michael Bryan in the 800 block of East twelfth Street in Ada.
Conversely, Ms. Gaumond testified at trial that she left her apartment at two:45 a.g. to employ a payphone at a nearby convenience store to call the Pizza Hut regarding an application for employment on the evening shift. She stopped first at Hardee'southward restaurant, where she was an employee, for a soda, then walked to the convenience store. On the way back she was accosted by Mr. Thompson as she passed by the entrance of an aisle where Mr. Thompson's car was parked. She stated that on the previous day, the 16th, Mr. Thompson and 2 other men had accosted her, causing her to run to a nearby residence for safety. Mr. Thompson was alone when she saw him effectually 3:00 a.m. He said something like "yous didn't think I would catch up with you did y'all bitch," so, later a few other words, forced her into his car. Tr. Vol. 2 at 34-35. According to Ms. Gaumond, Mr. Thompson threatened to impale her if she attempted to leave. He then stopped for beer, but she was too frightened to escape or seek help. Thereafter Mr. Thompson took her to the vacant apartment, placed her on the pile of carpet, undressed her, threatened her with a knife, raped and sodomized her anally with his penis, beat her when she screamed and struggled, and otherwise acquired diverse injuries, including rug burns to her knees, arms, and confront. Later the encounter Mr. Thompson so drove her in a direction away from her apartment to the expanse of 6th and Constant Streets, by the railroad overpass, pushed her out of the car, and collection off. At that indicate Ms. Gaumond began walking back toward town where she met the 2 women referred to above.
The trial of this example covered three days. The state presented the testimony of five witnesses: ane of the women who saw Ms. Gaumond around 5:45 a.grand. on March 17th; Officer Haines who responded to the 911 call; Ms. Gaumond; Greg Frazier, an employee at Hardee's who testified that Ms. Gaumond did come in during the early morning hours, stayed briefly, and left alone; and Detective Tommy Cosper who investigated the incident and supervised the v record-recorded phone calls by Ms. Gaumond to Mr. Thompson, and the recorded meeting between them.
The state offered the tapes in evidence and played them to the jury. The starting time three taped phone calls (Ex. 8 at trial) took place on March 26th. The taped personal meeting was the side by side solar day, the 27th (Ex. 9). Following that meeting at that place were two more than taped phone calls (Ex. 10).
Detective Cosper also testified that after the telephone calls, the police force had Mr. Thompson come up to the police station where a Detective Leewright took a statement that was videotaped past Cosper (Ex. 7). That videotape was played to the jury. Finally, Detective Cosper testified that on March 29th, the twenty-four hours after the videotaped interview, the police arrested Thompson and took him to the station where, subsequently being read his rights, Mr. Thompson gave yet another statement (Ex. 14), which was audio-taped. In that argument Mr. Thompson said that he gave false information in his videotaped statement the previous mean solar day, and provided different details. That audio record was likewise played for the jury. Except for brief testimony from the Hardee's employee, the testimony of Detective Cosper and the playing of the tapes took the unabridged afternoon on the second twenty-four hours of trial.
The defense, in addition to vigorous cantankerous-examination especially of Ms. Gaumond and Detective Cosper, presented 3 witnesses: Christina Thompson, who testified that on the evening of March 16th she had lent Mr. Thompson her scarlet Firebird auto--a fact inconsistent with Ms. Gaumond's description of a yellow car; Mr. Thompson'south mother, Nancy Thompson, who testified that after March 17th she found a note nether the chump at the Thompson residence threatening Mr. Thompson; and Michael Bryan, whose testimony was presented by stipulation and consisted of an account of his evening's activities with Ms. Gaumond on March 16th.
Two years after his conviction, while his directly entreatment was pending, Mr. Thompson filed a motion for a new trial based on evidence newly discovered well-nigh Ms. Gaumond, and asserting ineffective assistance of counsel. That motion was denied on procedural grounds. Thereafter, on February 21, 1996, Mr. Thompson filed an application in state commune court for post-conviction relief, over again asserting the grounds raised in his earlier motion for a new trial. The land commune court considered the awarding on its merits and denied relief on April 11, 1996. The Court of Criminal Appeals also considered the claims on their merits and on May 29, 1996, it affirmed the denial of relief.
The grounds for mail service-conviction relief asserted in the land courtroom are reasserted in Mr. Thompson's federal habeas petition. They residual on thirteen affidavits and statements consisting of approximately l pages, including exhibits. In addition, there are seven juror affidavits and the affidavit of Kevin Haley, an ex-husband of Ms. Gaumond, that are presented only in connection with the federal habeas petition.
By these affidavits Mr. Thompson seeks to portray Judy Gaumond as a thoroughly disreputable person of bad grapheme, who is mentally and emotionally unbalanced, and a psychopathic liar with a history of false accusations of assail and other crimes, including a simulated accusation of rape. Mr. Thompson asserts that if his counsel had properly investigated Ms. Gaumond, he would have discovered some of this evidence and could have destroyed her brownie equally a witness. Finally, through the affirmation of Michael Bryan, Mr. Thompson asserts that a newly discovered, innocent explanation exists for the injuries to Ms. Gaumond. He contends that his counsel was ineffective for failing to discover this data due to unprofessional interview techniques when questioning Bryan.
The principal focus of this case is on the Bryan affirmation, on an affirmation by Pastor Michael Haynes, and on a third affirmation given by ane of Ms. Gaumond's ex-husbands, Kevin Haley. The Bryan affidavit (Ex. A to the Federal Petition) was apparently executed in Georgia, and is dated October 17, 1994, nigh two years after the trial. In it Michael Bryan describes his relationship with Judy Gaumond, lasting several months. In item he states that on the evening of March 16, 1991, he and Ms. Gaumond, who were living together at the time, drank beer and had sexual relations in the living room of their apartment. He describes the sex as rough, causing carpet burns on Ms. Gaumond'due south face up, elbows, and knees, and that he ripped her shirt. He farther describes the sex as largely anal, but possibly vaginal as well. He too stated that Ms. Gaumond left the flat around midnight to buy cigarettes. Finally, Mr. Bryan states his belief that Ms. Gaumond lied nigh being raped and gave various general instances of her bizarre behavior. Prior to trial Mr. Bryan told a different story to an investigator for the defense, and separately to the prosecutor's staff, the prosecutor, and to defense force counsel. Based on those statements the defense stipulated that Bryan's testimony, if he were chosen, would be only that he and Judy drank beer on the evening of the 16th, played cards, watched television set, so went to bed; and that Judy later went out in the centre of the nighttime.
Dr. Michael M. Haynes was Pastor of the First Baptist Church of Mineola, Texas, from 1979 to 1982. In his affidavit (Ex. C to the Petition) he states that in 1981 or 1982 he became enlightened of a rape accusation by Judy (then Owens) against the church youth director. He called a meeting attended by himself, Judy, her parents, and a church staff managing director, concluding that "[due west]e adamant that Judy was not telling the truth." Haynes Aff. at one. Apparently, Judy filed no criminal complaint and never formalized an accusation of rape. The Haynes affidavit was executed in Bell County, Texas, on November 15, 1995.
Kevin Haley executed an affidavit in Chase Canton, Texas, on May 17, 1996 (Ex. Q to the Petition). As indicated above, it was non filed in whatever of Thompson'due south state proceedings. In the affidavit, Mr. Haley states that he was married to Judy (after, Gaumond) from August 1983 to September 1984, living first in Commerce, and then in Sulphur Springs, Texas. They separated in June 1984 when Judy left him and went to Oklahoma City. Mr. Haley by and large simply thoroughly disparages Judy's truthfulness, fitness as a mother, and capacity for normal conduct during the months they lived together, and a few contacts after that. Specifically, when Judy left him, she lied about joining the Air Strength Reserve and being pregnant. Haley did not draw any imitation accusations of rape or set on by him or others, or any incidents of "rough" sex activity. He did detail i incident where Judy reported that she was being stalked. In that location was no official determination that this was untrue. Haley said the constabulary stopped the man in question and later told Haley "he wasn't really a good person." Haley Aff. at nine.
Of the thirteen affidavits and statements presented kickoff in country court, nine (Ex. D-L to the Petition) chronicle to events involving Ms. Gaumond that did not occur until a year or two later the case was tried.(3)
In mail service-conviction proceedings the Oklahoma Court of Criminal Appeals direct addressed whether, under Oklahoma law, the Bryan and Haynes affidavits, equally well equally 1 submitted by Betty Wright,(4) constituted newly discovered show that warranted a new trial.
The courtroom noted that under Oklahoma police, "[a] new trial based on newly discovered evidence will not exist granted where the new bear witness only tends to discredit or impeach the witness for the State and where it would not change the result of the trial." R. Vol. 2, Ex. C at 5-six (Club Affirming Denial of Post-Confidence Relief, May 29, 1996). The court then ruled as follows:
Although the district court did not specifically find that the prove Petitioner seeks to accept considered (contained with the Affidavits of Michael Bryan, Betty Wright, and Michael Haynes) was only impeachment evidence, this Court now so finds. Farther, nosotros agree with the District Court that the introduction of this show would not have been outcome determinative. Specifically, with regard to Michael Bryan, we find that much of the data contained within his affidavit would accept been inadmissible at trial under Oklahoma's rape shield statute.
Id. at 6.
The court separately addressed the claim of ineffective help of counsel. Quoting findings of the country district court, the Court of Criminal Appeals stated: "The Commune Court specifically found that Petitioner's trial
counsel was not ineffective and stated that Petitioner had failed to prove that 'but for counsel's performance, the result of the trial would have been different.'" Id. at 3 (emphasis added). The courtroom affirmed that finding. See id. at six.
In the appeal earlier u.s.a., Mr. Thompson does not heighten a constitutional challenge to the Court of Criminal Appeals' denial, nether state police force, of a new trial based on newly discovered evidence. Rather, the central issue is whether Mr. Thompson was denied the effective aid of counsel.
At the beginning, because of Mr. Thompson's adamant protestations of innocence, we emphasize the limited role that federal courts play in the exercise of their habeas jurisdiction. Federal habeas courts practise not sit to correct errors of fact or to relitigate state court trials. Our jurisdiction is limited to ensuring that individuals are not imprisoned in violation of the Constitution. See Herrera five. Collins, 506 U.South. 390, 400 (1993).
Claims of actual innocence based on newly discovered show have never been held to land a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.
Id. Here the constitutional merits is ineffective aid of counsel.
Recently, Congress has farther clarified and constrained our jurisdiction through the Antiterrorism and Constructive Death penalty Deed (AEDPA), Pub. 50. No. 104-132, 110 Stat. 1214 (1996) (codification in relevant part at 28 U.S.C. § 2254), which the parties concur applies to this case. Section 2254(d), every bit amended, provides that a writ of habeas corpus
shall not be granted with respect to any claim that was adjudicated on the merits in Land court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, equally determined by the Supreme Courtroom of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in low-cal of the prove presented in the State court proceeding.
This provision focuses on the state courtroom'southward ultimate decision or resolution of the case. When, as hither, the decision is on the merits, nosotros must defer to the conclusion whether or non it is accompanied past supporting reasoning. See Aycox five. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999).
Thus, nosotros must uphold the state court's summary decision unless our contained review of the record and pertinent federal constabulary persuades us that its consequence contravenes or unreasonably applies clearly established federal constabulary, or is based on an unreasonable determination of the facts in light of the evidence presented. This "contained review" should be distinguished from a total de novo review of the petitioner'due south claims. See Delgado, 181 F.3d at 1091 n.three. Our review is in fact deferential because we cannot grant relief unless the state court's outcome is legally or factually unreasonable.
Id.
Our decision in Aycox is pregnant due to Thompson'due south argument that the AEDPA does not apply to an evaluation of the adequacy of his counsel's performance because the country courts provided no reasoning on the point. See Appellant's Supp. Op. Br. at 23-24. He asserts that we owe no deference to the Oklahoma decisions and must conduct a de novo review. Run into id. at 40. Nosotros demand non resolve this issue. The Supreme Court presently has the statute in question under consideration. Run into Williams v. Taylor 163 F.3d 860 (4th Cir. 1998), cert. granted, 119 Due south. Ct. 1355 (Apr. 5, 1999) (No. 98-8384). Accordingly, we emphasize that under our analysis the issue of this entreatment would be the same under whatever standard of review.
Mr. Thompson asserts that he was denied the effective assistance of counsel guaranteed past the 6th Amendment. To demonstrate ineffective aid of counsel a defendant must bear witness defective performance and prejudice. See Strickland v. Washington, 466 U.South. 668, 687 (1984). To show ineffective operation, he must evidence that counsel'south errors were and then serious that counsel "was not functioning equally the 'counsel' guaranteed the defendant past the 6th Amendment." Id. Next, a defendant must bear witness that "counsel'south errors were then serious as to deprive the defendant of a fair trial." Id. That is, the accused must demonstrate that, merely for counsel'due south errors, the outcome of the proceedings would have been unlike. See Kimmelman 5. Morrison, 477 U.S. 365, 375 (1986). Nosotros "may address the performance and prejudice components in any lodge, but need not address both if [petitioner] fails to make a sufficient showing of one." Foster 5. Ward, 182 F.3d 1177, 1184 (tenth Cir. 1999).
A fair assessment of attorney performance requires a reviewing court "to eliminate the distorting furnishings of hindsight, to reconstruct the circumstances of counsel'southward challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.Southward. at 689. "To exist ineffective, the representation must have been such as to make the trial a mockery, sham, or farce, or resulted in the deprivation of constitutional rights." Dever v. Kansas Land Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994); see also Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (property that to be constitutionally ineffective, counsel's performance must have been "completely unreasonable, non only wrong").
As indicated above, in support of his ineffectiveness claim, Thompson focuses on three individuals and their affidavits: Michael Bryan, Pastor Michael Haynes, and Kevin Haley. In his pro se cursory, Mr. Thompson as well argues that the juror and post-trial outcome affidavits also establish his right to relief. We address these arguments in plough.
ane. Michael Bryan
More than three and a half years afterwards the incident in question, and most two years afterward trial, Michael Bryan, Ms. Gaumond'due south live-in boyfriend, stated, for the first fourth dimension, a possible alternative explanation for Ms. Gaumond's injuries. In his affidavit, he asserts that on the evening of March 16, 1991, he and Ms. Gaumond had "very rough" sex, causing her face up, elbows and knees to become red from carpet burns. Bryan Aff. at 2. He also states that he mayhap ripped her shirt.
Prior to trial the defense identified Mr. Bryan as a potential source of Ms. Gaumond'southward injuries, listed him as a witness, and sent an investigator, Pamela Hoffman, to interview him. In that interview Mr. Bryan said nada about sex activity or injuries, describing activities on the evening in question as being limited to having some beer, playing cards, watching television and going to bed. See Tr. Vol. Iii at 186. He refused to depict Ms. Gaumond as drunk. In his affidavit, Mr. Bryan says this account was untruthful, just that he gave this untruthful account to Ms. Hoffman because, "I was embarrassed to tell of the details of our sex life with my parents there and still felt some odd sense of loyalty to Judy." Bryan Aff. at 4.
Mr. Thompson claims that his counsel was constitutionally ineffective considering his investigator, Pamela Hoffman, acted unprofessionally when she interviewed Bryan in front of his parents, allegedly causing him, out of sensitivity, to hibernate the truth. See Appellant'due south Supp. Op. Br. at 25. There are a number of bug with this claim. Equally Thompson acknowledges, Pamela Hoffman was not the only one to speak with Mr. Bryan nigh testifying at trial. George Butner, Thompson's defense counsel, separately spoke with Bryan prior to putting on the defence force case. Run across Tr. Vol. Iii at viii. The prosecutor, Chris Ross, sent someone to speak to Mr. Bryan prior to trial. Meet id. at 9. And, Mr. Ross personally spoke to him during the trial. See id. at 11. In all three of those additional interviews, Bryan adhered to the story he told Hoffman, see id. at 9-11, and expressly denied that he caused any of Ms. Gaumond's injuries. See id. at 9 ("He denied putting whatsoever of the injuries."). As a issue of these multiple contacts with Bryan, in which he consistently spoke simply of beer, cards, television and his going to slumber, defense and regime counsel stipulated to Bryan'due south testimony. The court read the stipulation to the jury. See id. at 23, 34.
Bryan'southward affirmation does not mention whatever of these additional contacts in which he told the same story, presumably when his parents were not present and when he had multiple opportunities privately to disclose the facts he alleges several years later on the event. Furthermore, if sensitivity about what his parents would think caused him to be untruthful with Pamela Hoffman in her interview at the home, there is no reason to believe he would accept been less reticent in front of his parents and, essentially the whole town, in courtroom.
Additionally, Bryan's affidavit says he was less than truthful for an additional reason: loyalty to Ms. Gaumond. This reason stands on its ain. Cipher in the Bryan affidavit suggests he was willing at that time to become disloyal under whatsoever circumstances.
Finally, the Bryan affirmation critically omits any statement or suggestion that he was ready to tell a different story at the time of trial, or at trial, if questioned differently, or by someone else, or was chosen to the stand. And, it omits any reason why he withheld crucial bear witness from everyone--apparently telling no i--until October 1994.
Eliminating the distorting furnishings of hindsight and evaluating counsel'southward challenged conduct from his perspective at the fourth dimension--every bit the Supreme Court requires--we cannot conclude that counsel's performance was completely unreasonable. And, at that place is no showing on this component of the Strickland examination sufficient to require a hearing.
2. Pastor Michael Haynes
Michael Haynes was pastor of the First Baptist Church of Mineola, Texas, from 1979 to 1982. Every bit indicated above, in an affidavit dated November sixteen, 1995, Pastor Haynes states that in 1981 or early 1982 Judy (then, Owens) "had accused my youth director of rape." Haynes Aff. at i. Pastor Haynes chosen a meeting attended, patently, by five people: himself, a church staff member, Judy's parents, and Judy. At the coming together "nosotros determined that Judy was non telling the truth, and dismissed the accusations as false." Id. No other facts are offered. There is no way to compare the alleged circumstances with what happened involving Mr. Thompson about x years later. Ms. Owens plain fabricated no formal charge, no report to the police, or sought any medical attention.
Fifty-fifty if admissible or probative, the record is bare of whatsoever exclamation every bit to how or why Thompson's counsel in Ada, Oklahoma, could or should take found out about this individual church matter, occurring 11 years earlier trial, in another land, in a town most 200 miles away, especially when Pastor Haynes was living elsewhere after 1982. His affirmation was executed in Bell County, Texas, several hundred miles farther s.
Thompson'southward statement is that he is entitled to an evidentiary hearing on the bailiwick because the state failed to debate "that Mr. Thompson had non shown deficient performance," and there is "every indication" Haynes could have been located in 1992 for trial. Appellant's Supp. Op. Br. at 32. This statement fails to take into account that the burden is on Thompson to show deficient performance, and the "every indication" exclamation is not supported with a single factual allegation.
On this record, using the same standards referred to above, we cannot conclude that counsel's functioning was constitutionally deficient for declining to locate Pastor Haynes or find this incident. Furthermore, there is an insufficient showing to create an entitlement to an evidentiary hearing.
3. Kevin Haley
Kevin Haley's affidavit, executed in May 1996, was not submitted to the state courts. In that location is no reason why, in our analysis of the state court proceedings, we should take it into consideration, especially since the state courts accept non had an opportunity to laissez passer on evidentiary and admissibility questions raised by the affidavit. However, fifty-fifty if nosotros did, it would non resolve the ineffectiveness effect in Mr. Thompson'due south favor. Mr. Haley was married to Judy (Gaumond at the time of trial) from Baronial 1983 to September 1984, but they only lived together for about x months. Their commencement residence was in Commerce, Texas, and then Sulphur Springs, Texas, where Mr. Haley connected to reside.
The affidavit is full of generalized personal judgments and statements nearly Judy'southward graphic symbol and declared habits regarding untruthfulness, with two physical examples being lies around the fourth dimension she left Haley that she was pregnant and had joined the Air Force Reserve. There are no instances of rape accusations or rough sex. All of the textile is adulterate in fourth dimension from the years in question, 1991 to 1992.
Thompson cites to no persuasive country authority that would suggest that testimony like Haley'south would be proper, relevant, or not outweighed past its prejudicial consequence. Rather, he cites the trial judge'southward discretionary authority to admit prove, and argues ineffectiveness for not giving the gauge a gamble to rule. See Appellant'southward Supp. Op. Br. at 35-37. We note that the trial gauge has the discretion to exclude remote grapheme evidence. Come across Joffe v. Vaughn, 873 P.2d 299, 304 (Okla. Ct. App. 1993) (upholding trial court's discretion to exclude evidence "too remote in time and relevance"); Stouffer v. State, 738 P.2d 1349, 1355 (Okla. Crim. App. 1987) (ex-wife's knowledge of victim's drinking habits "was too distant [after living autonomously for 15 months] to establish a and so current pattern of . . . carry or to exist relevant, or to qualify as impeachment evidence"). We conclude on our own review that if whatsoever part of the proffered material would have been admissible at this rape trial it would have been so insignificant as to have had no likely result on the upshot. The cadre facts are unaffected: Thompson'due south concessions that he instigated the meet; Ms. Gaumond and he were not acquainted; he was deeply under the influence of valium, marijuana and alcohol; Ms. Gaumond was injured, including bruises, scratches and scrapes; she immediately reported that she had been raped; and she was distraught, crying and hysterical.
More to the point, on the operation prong of Strickland, our conclusion is the same as that with Bryan and Haynes. While Haley, an ex-married man, would certainly have been a more than logical investigation target than Haynes, there are several missing factors in Thompson'due south equation. The almost obvious objects of an investigation into Ms. Gaumond's life would have been Bryan, her current beau, and Rick Gaumond, her husband since September 1984. We have reviewed the Bryan situation. Thompson does not inform usa about Rick Gaumond'due south availability or lack thereof in 1991 and 1992, or what helpful and open-door data he had. Haley, and so, is three tiers removed in human relationship, upwardly to viii years removed in time, and hundreds of miles afar in another state. And, Thompson's counsel had no reason from Bryan, Rick Gaumond, or anyone else, to believe that locating Haley would exist helpful. In short, Haley and his views were adulterate in time, identify, circumstance, and straight relevant discipline thing. While Thompson's counsel might accept done better, applying the standards referred to above, nosotros cannot conclude from our own exam of the tape that counsel'southward performance roughshod below constitutional standards where Haley is concerned.
4. Juror Affidavits and Post-Trial Events
In these federal proceedings Thompson presented affidavits from seven jurors, almost four years after the trial, saying that they had read "the affidavits attached to Mr. Thompson'southward brief in Back up of Petition in Mistake" filed in the Court of Criminal Appeals and with all that information they would take decided Thompson'due south case differently. Ex. P to the Petition. Contrary to Thompson's assertion in his cursory to us, see Appellant'south Op. Br. at fifteen-xvi; Ex. P, there is no indication that the jurors only read the Bryan and Haynes affidavits and every indication that they read more, including a good deal of information that, in any example, would non have been admitted at trial.
Regardless, we agree with the magistrate judge that the rules of civil procedure, Supreme Court authority, and binding precedent in our own circuit preclude consideration of such affidavits. Encounter Fed. R. Civ. P. 606(b); Capps five. Sullivan, 921 F.2nd 260, 262 (holding that prove that jurors would accept voted differently is inadmissible in federal habeas corpus proceedings); cf. Tanner v. U.s., 487 U.S. 107 (1987).
Mr. Thompson likewise argues in his pro se brief that nosotros should consider the nine affidavits relating to events that had not even occurred at the time of trial. In the context of an ineffectiveness of counsel issue, they are manifestly inappropriate since the events and witnesses were not available in 1992.
Mr. Thompson'south overarching contention is that the district court erred past deciding this instance without having and reviewing Thompson's two taped interviews with the police on March 28 and 29, 1991, plus exhibits showing Ms. Gaumond's injuries, amongst other things. Indeed, Mr. Thompson suggests that nosotros and the commune court are powerless to make a decision on the habeas petition without these items. Encounter Appellant's Supp. Op. Br. at 41-42. He also argues that the district court had a duty to obtain the missing portions of the tape on its own initiative. See Appellant'south Supp. Respond Br. at 4. These arguments are directed at determinations on the prejudice prong of Strickland, and the premise that the state trial transcript and other materials that the district courtroom did take in this case, all of which the magistrate gauge summarized in his findings and recommendation, were bereft.
As indicated above, our judgment is, in its essentials, based on the performance component of Strickland and our independent review of a record entirely sufficient for that purpose. Furthermore, nosotros refuse the proposition that the district courtroom has a legal duty, sua sponte, to obtain these specified parts of a state trial record.
Thompson also alleges that the district courtroom erred in declining to grant an evidentiary hearing on his merits. In Miller five. Champion, 161 F.3d 1249 (10th Cir. 1998), we held that the AEDPA's restriction on evidentiary hearings(5) does not apply where "a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so." Id. at 1253. Thompson claims that because the land courts denied his request for a hearing, his petition falls within this Miller exception such that the AEDPA restriction does not apply. However, Thompson is non entitled to a federal evidentiary hearing under whatsoever standard. Even if the denial of a state hearing did forbid him from developing his factual claims, he still fails the less restrictive standard: a petitioner is "entitled to receive an evidentiary hearing then long as his allegations, if truthful and if not contravened by the existing factual record, would entitle him to habeas relief." Id. at 1253.
Every bit discussed above, nosotros conclude that Thompson has not made a sufficient threshold showing to entitle him to an evidentiary hearing. See Trice five. Ward, 196 F.3d 1151, 1159 (10th Cir. 1999); Foster five. Ward, 182 F.3d 1177, 1184 (tenth Cir. 1999). Therefore, nosotros conclude that the district court did not err in denying a hearing.
In his pro se cursory, Mr. Thompson claims a miscarriage of justice and actual innocence. His argument is not that his innocence has been established, such equally by a recantation past Ms. Gaumond, merely that he would stand a improve chance of acquittal now. That does non pass the test for fundamental miscarriage. See, eastward.g., Clayton five. Gibson, No. 98-5154, 1999 WL 1256322, at *4 (10th Cir. Dec. 22, 1999).
He also argues the trial record inconsistencies in Ms. Gaumond'south statements and testimony (machine and personal identifications, convenience store stop, no knife or employment application, etc.). These state no constitutional merits and in any upshot, were argued to the jury by Mr. Thompson'due south counsel.
Thompson raises other arguments, including bias by the trial judge, that nosotros decline to review because he failed to heighten the issues beneath. Come across Lyons v. Jefferson Bank & Trust, 994 F.second 716, 720 (tenth Cir. 1993) (federal appellate courts do not consider issues non raised below). However, even if we did review these arguments, Thompson could prove no constitutional violation.
Although we base of operations our decision in large function on other grounds, supported by the record, run across Bath v. National Ass'n of Intercollegiate Athletics, 843 F.2nd 1315, 1317 (10th Cir. 1998), we hold that the district courtroom did not err. Accordingly, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Excursion Judge
Click footnote number to return to corresponding location in the text.
*.This club and judgment is not binding precedent, except under the doctrines of law of the example, res judicata, and collateral estoppel. The court generally disfavors the commendation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of tenth Cir. R. 36.3.
**.The Honorable Sam A. Crow, Senior Commune Judge, United States District Courtroom for the District of Kansas, sitting by designation.
1.On April 23, 1999, this courtroom granted a certificate of appealability as to all issues raised in Mr. Thompson'southward pro se brief on entreatment, and appointed the Federal Public Defender for the District of Colorado to correspond Mr. Thompson. Briefing was completed on September 17, 1999. The issues raised in the petition have been exhausted in the Oklahoma country courts, which considered the merits. Procedural bar is not an outcome. The petition was timely filed pursuant to the limits imposed by 28 U.S.C. § 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).
2.The country does not assert mootness. Presumably Mr. Thompson is on parole; thus the "in custody" requirement for a writ of habeas corpus is satisfied. Encounter Harvey v. Shillinger, 76 F.3d 1528, 1537 (10th Cir. 1996) (citing Maleng v. Cook, 490 U.S. 488, 491-92 (1989)).
3.Half dozen of the statements concerned Ms. Gaumond'due south behavior, utterances, and accusations occurring in and effectually her lodgings in Lawrence, Massachusetts, during the month of July 1994. (Sept. 7, 1994, interview notes with Joanne Newman, Ex. F; Aug. 24, 1994, statement of Gary S. LaGasse, Ex. G; Aug. 24, 1994, statement of Arline A. Kliska, Ex. H; Aug. 24, 1994, statement of Elaine M. Eaton, Ex. I; Aug. 24, 1994, argument of Raymond Roeger, Jr., Ex. J; Aug. 24, 1994, argument of Charlene Chapman, Ex. M). The various accusations, including accusations of assault, made by Ms. Gaumond and referred to in these statements, center around her estranged husband, Rick Gaumond, who apparently lived in another state.
Some other showroom, Exhibit D, plainly filed in October 1994, asserts that Ms. Gaumond falsified her engagement of marriage to Rick Gaumond in divorce papers she filed in Massachusetts probably in 1993 (no date is specified). It further asserts that at the time of her marriage to Rick Gaumond on September 24, 1994, she was married to Kevin Haley. Exhibit E is an affidavit by Rick Gaumond's Massachusetts attorney, John Brien, regarding an issue on Baronial 23, 1993, in which Judy Gaumond made false accusations against Rick Gaumond for assail, breaking and entering, destruction of holding, and violation of a protective order. The affirmation goes on to describe a fake allegation in September 1994 that Rick Gaumond sexually molested a Gaumond child erstwhile between 1991 and 1993. Finally, the affidavit attaches a police arrest written report charging Ms. Gaumond with disorderly conduct in June 1993. The concluding of these exhibits relating to post-trial events, Exhibit L, is a argument of Detective Michael Gilligan of the Andover, Massachusetts Police Department, describing an incident on March 3, 1995, in which Judy Gaumond, who had only been released from prison, fabricated a series of accusations nigh Rick Gaumond. Allegedly he left a threatening annotation at her residence. When the officer determined that the story was fabricated, Ms. Gaumond threatened suicide.
4.The affidavit by Betty Wright, Jeff Gaumond's mother, executed Nov. 22, 1994 in Dallas Canton, Texas, includes a short, general statement that Gaumond had lied, apparently during the 1980s (Ex. O to petition). The thirteenth affidavit, a Dec. 22, 1995, (no location is given) affirmation by Mack Martin, a criminal defence lawyer, gave his opinion that Thompson would have been acquitted if trial counsel had reasonably investigated Gaumond's background and cross-examined her with the evidence (Ex. B to petition).
5. See 28 U.s.a.C. §§ 2254(e).
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