Carter v. Bigelow
787 F.3d 1269
10th Cir.2015Background
- In 1985 Douglas Stewart Carter was convicted in Utah of first-degree murder based primarily on his confession and corroborating testimony from Epifanio and Lucia Tovar; he was sentenced to death (resentenced to death in 1992).
- No physical evidence placed Carter at the scene; the Tovars were described as the “key witnesses.” At trial they testified they received only nominal court witness fees.
- In 2011 the Tovars executed declarations saying Provo police provided relocation, rent, groceries, gifts and cash before trial and coached them not to disclose that assistance. Provo officers’ declarations partially corroborated these statements.
- Carter sought to supplement his long-pending federal habeas petition with Brady/Napue claims based on the Tovar evidence and to stay for state-court exhaustion; the district court denied supplementation and denied relief on most other claims; the Tenth Circuit granted relief limited to supplementation and cumulative-error remand.
- The Tenth Circuit held the district court abused its discretion in denying supplementation of Brady/Napue claims, found those supplemental claims timely, remanded to permit the district court to consider a Rhines stay for exhaustion, affirmed denial of most other claims under AEDPA deference, and vacated denial of cumulative-error pending resolution of the supplemental claims.
Issues
| Issue | Carter's Argument | Utah's Argument | Held |
|---|---|---|---|
| Whether Carter could supplement his pending §2254 petition with newly discovered Brady/Napue claims based on Tovar declarations | Supplementation proper under Fed. R. Civ. P. 15(d); facts surfaced while petition pending; suppression was alleged in original petition; AEDPA purpose does not bar supplementation | Any "new claims" must be presented as second/successive under §2244(b); allowing supplementation would unduly delay and frustrate AEDPA/comity | Reversed: district court abused discretion; supplementation of Brady/Napue claims allowed; remanded for further proceedings (including scope of supplementation) |
| Timeliness of the supplemental Brady/Napue claims under §2244(d)(1)(D) | Claims timely: factual predicate discovered in 2011; due diligence satisfied because State had represented all Brady material had been disclosed | State argued Carter could have found Tovars earlier and thus claims untimely | Held timely under §2244(d)(1)(D); State’s concealment and representations supported tolling of discovery date |
| Whether district court should stay petition under Rhines to permit exhaustion in state court | Carter sought stay to exhaust new Brady/Napue claims in state court | State opposed further delay; district court previously treated petition as fully exhausted | Remanded: district court must decide in first instance whether Rhines stay requirements (good cause, potential merit, no dilatory tactics) are met |
| Ineffective assistance of guilt‑phase counsel for failing to obtain prosecutor file | Counsel deficient for not obtaining file with impeachment/exculpatory material; prejudice exists given corroborated confession rested on key witnesses | Failure deficient but no prejudice because confession and corroboration were strong and much file evidence likely inadmissible or cumulative | Affirmed denial: counsel likely deficient, but Utah Supreme Court’s prejudice determination was not an unreasonable application of Strickland/AEDPA |
| Ineffective assistance of appellate counsel for not marshaling prosecution file on appeal | Appellate counsel failed to present file to Utah Supreme Court, undermining trial-counsel IAC claim | Even if file not presented, Carter cannot show prejudice because trial-counsel IAC lacks merit | Affirmed denial: no reasonable probability of different result on appeal (Strickland prejudice prong) |
| Ineffective assistance at resentencing (mitigation investigation; juror strike; residual doubt) | Counsel failed to develop and present robust mitigation, should have struck juror with racist views, and failed to argue residual doubt | Counsel obtained family witnesses and a neuropsych exam, presented organic brain dysfunction; juror questioned and said he would follow law; no authority that residual-doubt argument is constitutionally required | Affirmed denial: state-court merits rejection was not unreasonable under §2254(d) |
| Prosecutorial vouching and comment on Carter’s silence at trial | Prosecutor vouched for Lucia and commented that no evidence of coercion was presented, violating due process and Fifth Amendment | Isolated vouching comment and permissible argument about evidence; no direct comment on Carter’s silence that violated Griffin | Affirmed denial: single vouching remark harmless; prosecutor’s statements not an unconstitutional comment on silence |
| Confrontation Clause at resentencing for admission of Tovar transcripts | Admission violated Crawford/Roberts because Tovars were not unavailable or testimony lacked reliability | Roberts framework applied (sentence predated Crawford); State made reasonable effort to locate Tovars and transcripts bore indicia of reliability | Affirmed denial: Confrontation Clause not clearly applicable at capital sentencing and Utah Supreme Court’s Roberts-based conclusion was not unreasonable |
| Involuntariness of Carter’s confession | Confession coerced by prolonged interrogation, threats regarding JoAnne Robins, Carter’s low intelligence, and irregular statement transcription | Breaks, Miranda warnings, brief interrogations, denials of threats by officers, and lack of officer knowledge of cognitive deficits make confession voluntary | Affirmed denial: totality-of-circumstances supports voluntariness; state court’s ruling not unreasonable |
| Cumulative error | Multiple errors collectively undermined confidence in outcome | Most individual claims lack merit; cumulative effect is not prejudicial | Vacated denial and remanded: cumulative-error analysis deferred because supplemental Brady/Napue claims could change the calculus |
Key Cases Cited
- Rhines v. Weber, 544 U.S. 269 (2005) (stay-and-abeyance standard for mixed habeas petitions)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose materially exculpatory/impeaching evidence)
- Napue v. Illinois, 360 U.S. 264 (1959) (due process violated by knowing use of false testimony)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (AEDPA review limited to state-court record for §2254(d) adjudications)
- Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (permitting supplementation of habeas petition with concealed Brady claims under unusual circumstances)
- Banks v. Dretke, 540 U.S. 668 (2004) (State’s duty to correct prosecutorial misstatements and the effect of concealment on a defendant’s duty to search for Brady material)
- Mayle v. Felix, 545 U.S. 644 (2005) (relation-back principles for amended habeas petitions)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (totality-of-circumstances test for voluntariness of consent/confession)
- Lynumn v. Illinois, 372 U.S. 528 (1963) (confession coerced where explicit threats produced it)
- Griffin v. California, 380 U.S. 609 (1965) (prosecutorial comment on defendant’s silence violates Fifth Amendment)