Philip Ray Workman v. Ricky Bell, Warden

SILER, Before COLE, and SUTTON, Circuit Judges.

SILER, J, dеlivered opinion of the court, in which SUTTON, J., joined. COLE, J. (pp. 842^44),delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge. Philip Ray Workman seeks a stay of execution in connection with his appeal from the denial of a motion under Fed. R. 60(b), Civ. P. a motion contending that the Attorney General for the State of Tennes- (“State see Attorney General”) perpetrat- aed thе district court during Workman’s habeas corpus proceedings. Because Workman has been given consid- erable process during the years since a state court jury found that he murdered Oliver, Ronald because Work- man cannot seriously contend that his alle- gations any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieuten- ant Oliver and that he shot and injured theory that supports inci during the Aubrey Stoddard Officer friendly fire. killed 759, Oliver v. dent, see Workman Bell Workman, 667 Harold Cir.1998); witness points State next at the (Tenn.1984); Davis, testified who 46-47 S.W.2d (Tenn.Ct. shoot- to the 10, 12 Workman linking Workman, S.W.3d 111 eyewitness nobis of coram claims state the 2001 a During because ing. Crim.App.2002), stat- Davis exceedingly alleges attenu that are Workmаn hearing, the on shoot- fact, the Tennes seen not, in the because he had and that vague, ed ated the (but observed rejected had has Appeals he claimed ing Criminal of see Court vantage point), claims, see different the a of from two incident of premises af- falsely testified 18-20, Workman Davis that alleges at Workman, S.W.3d 111 Workman, finally, in threats. receiving of sucсess likelihood ter to no little has show- photograph its scene abused a crime points district showing that 60(b) contained may have mo that cup Rule a his rejecting in discretion Oliver a killed for his motion bullet deny police therefore We tion. offi- police Memphis testimony from stay. may shooting suggesting cers incident. friendly fire a been I. II. Lieu killing of convicted was Workman following factors capi a consider received We he which Oliver tenant a time, Workman grant whether deciding Since 1982. in tal sentence ais 1) there on whether appeal final of execution: stay his denied was Workman merits on Supreme succeed will he Tennessee likelihood by merits a likeli- 2) there 44 Workman, S.W.2d whether 667 appeal; Court, v. ab- harm irreparable Tennes v. suffer will denied, he hood (Tenn.), cert. stay will cause 226, 83 stay; 873, S.Ct. a 105 sent see, U.S. 469 4) wheth- others; and concluded harm he has (1984), and substantial 155 L.Ed.2d public relief, would serve injunction habeas er federal traditional Summers, 377 Cir.1998), v. Capobianco cert. (6th See interest. ‍‌‌​‌‌​​‌​‌‌‌​​​‌​‌‌​‌‌​‌​‌​​​​​​‌​‌​‌​​​‌​‌​​​‌​‍759 Bell, 178 F.3d v. In re Cir.2004); also see 264, (6th 145 559, 913, 120 S.Ct. 561 F.3d denied, 528 Cir.1997), (6th 460, 464 Post-habeas, Work F.3d (1999). 118 Sapp, 221 L.Ed.2d v. Cooey by grounds on five delayed abrogated been has еxecution man’s Cir.2007). (6th 412 through Strickland, F.3d 479 back has been He occasions. indi has recently clemency a Supreme had also has As courts state “significant a show must cated, a claimant hearing. merits” of success possibility al- from stem contentions Workman’s McDon stay. Hill to obtain order will suggests evidence new leged 2104, 2096, — U.S. -, 126 S.Ct. ough, killed Oliver show (2006). 44 L.Ed.2d He officer. fellow from friendly fire inquiry success-on-the-merits of Lieuten- testimony to the initially points rejection district to the relates here Keenan Clyde ant motion, 60(b) which Rule Keenan hearing. Lieutenant clemency rejected our after filed Willis, found Terry he, not testified the denial review Our petition. corpus Oliver killed Lieutenant bullet mayWe limited: a Rule Workman, According to scene. crime reverse such deсision only when the trial incorrect, been or had heard statements by court abuses its discretion. See Futernick Memphis police officers that Lieutenant v. Sumpter Twp., 207 F.3d Oliver’s death was possible friendly fire Cir.2000). “An abuse of discretion occurs incident.2 Even assuming the sake of when the district court relies on argument clearly that Davis and Willis lied at the erroneous findings fact, ... trial, imprоperly Workman has failed to applies law, ... or ... show employs an that the conduct in question was “on erroneous legal the part standard.” Surles an officer of the court” as Lines, Greyhound Inc., 474 required Demjanjuk. 10 F.3d at 348. (6th Cir.2007) (internal quotation marks The district court also did not ex omitted). ceed its discretion in declining to impute the conduct of view, In state our and local offi Workman has not cials tо the State met Attorney his burden of General. In showing “a significant Workman v. (6th 227 possibility” F.3d 331 that the Cir. district court abused 2000) (en banc), our its discretion. was equally Workman argues that the divided on whether alleged perjurious on the court testimony of Davis and turns on whether the fraud Willis and was “perpe the other exculpatory evidence by trated an attorney” namely, by amount to a a state fraud on the — attorney during the habeas Attorney proceeding. State General during the habeas Id. at 341. A district court’s acceptance proceedings.1 In making this serious alle a point of law on one side gation of an against intra- the Attorney General, how split, circuit like a district ever, court’s Workman decision offers nothing serious to to answer an unresolved question show that of law the Attorney General sponsored within circuit, does not this constitute false an testimony or knew it about dur abuse of discretion. Surles, See F.3d the federal habeas proceeding. The at 297-98. alleged perjury came to light in state pro ceedings and not No until less years importantly, 2001—five Workman has not after the district shown how denial the imputation of his question feder would al habeas petition affect years three outcome of after case. While panel of our Workman focuses most affirmed that of his decision. fraud-on-the- Nothing about allegations line, time on the testimony save sheer of Davis speculation, Willis, shows or even has not made a suggests meaningful showing Attorney their testimony General was awаre of was indeed the alleged materially perjury false. at the time of the federal habeas proceedings. Workman of The testimony of Davis at the state co- fers no evidence showing that the State ram nobis proceeding consumes roughly Attorney General was aware of the miss 300 pages of transcript. State v. Work ing evidence cup, knew that or Davis Willis man, 111 (Tenn.Ct.Crim. S.W.3d made statements at trial that may have App.2002). At times, Davis says he did 1. The elements of fraud on the court include duty disclose; der 5) that deceives conduct: of an officer of the the court. Demjanjuk See v. Petrovsky, 10 court; 2) that is directed at judicial ma- 1993). Cir. itself; chinery 3) that false, is intentionally wilfully truth, blind to the or is in reckless 2. Nor has put Workman forth any sug- facts disregard truth; 4) for the pоsitive that is a gesting that the State Attorney General should averment aor concealment when one is un- accepted these statements as credible. fatal indicate might “arguably edged, Lieutenant shoot Workman not see But Id. trial.” produced be would bullet he does says times, Davis Oliver; at other notion undermined developments later he saw remember not cаse. theory of state’s this was According Id. Oliver. shoot ar- argument, closing During Appeals, of Criminal Tennessee good make not did the state gued “can testimony Davis’s essence prove not it did as promise, its ex- following summarized” best one was into evidence introduced bullet change: During Id. Oliver. that killed lied, you saying not You’re Prosecutor: take however, rebuttal, right? statement, it instead but with issue Right. Davis: tes- laboratory worker’s FBI pointed trial, you’re In the Ok. Prosecutor: Ex- [introduced bullet “the timony that saying— perfectly by Willis] found hibit arm, through going Right. ... with Davis: consistent slug what That’s that? Stoddard. about lied Prosecutor: —You of Officer added). that Recall (emphasis Id. that. was.” saying not I’m Right. Davis: (and Work- trial showed at the evidence know. don’t just You Prosecutor: confirmed) that testimony own man’s just I remеmber. don’t just I Davis: Offi- Oliver Lieutenant shot know.... don’t Lieu- light, in this Viewed Stoddard. cer Id. the during testimony Keenan’s tenant considered thus courts Tennessee The he found that clemency proceeding state not it did that concluded at this evidence Oliver killed that bullet the The trial. at Davis lied that with show consistent perfectly scene crime testimony that found a trial found he testimony state that triаl Willis’s did recantation ato First Compare amount not crime scene. at bullet lied had 7at Davis that Relief Equitable not show for Motion Amended Court Tennessee The 16-17. Exhibit at Id. he found trial. that (“Willis claimed [its] morn- following “[biased Appeals, lot Criminal parking in the “it difficult thought testimony,” found that of his claimed review He ing .... If at 18. He claimed bearing.’ Id. otherwise.” ‘ball a ... was to conclude bullet bearing’ Davis find that ‘ball failed used courts took then Tennessee that toolbox.”) (inter- at testimony or lied his it in trial placed recanted inside and had Tr. Clemency the feder- omitted), that with to believe trial, difficult footnotes it is nal round prevar- talking Davis about (“I’m conclude at 276 could al courts toolbox The the scene. at found trial. police the same at icated they whеn sure exactly I’m round also proceeding nobis coram The that.”) (testimony found relates itas claim Workman’s undermines Keenan). Tennessee The Terry Willis. quite record, it seems face of In skepticism expressed Appeals Criminal targeted testimony trial that the doubtful “it was claim about And, at false. was indeed by Workman recovered theory at state’s say conjecture pure rate, it remains was, any Willis] found one [the bullet any- knew Attorney General the State Id. victim.” killed fact, the bullet (much falsity allegations thing about statement opening state’s The at 20. fal- allegations false the potentially less acknowl- appellate trial, the state sity) until well after Workman’s federal of respect yet, may never receive respeсt. habeas proceeding had concluded. Under See Calderon v. Thompson, 523 538, these circumstances, we have 556, considerable 118 S.Ct. (1998) L.Ed.2d 728 sympathy for this (“A observation the dis- State’s interests in finality are compel- trict court in explaining its ‍‌‌​‌‌​​‌​‌‌‌​​​‌​‌‌​‌‌​‌​‌​​​​​​‌​‌​‌​​​‌​‌​​​‌​‍denial of ling Work- when a federal court appeals issues 60(b) man’s Rule motion: a mandate denying federal relief.”). The prospect of holding Although a hearing which will undeniably suffer

would necessarily require irreparable harm if executed, Defendant the other prove grave ethical factors professional weigh heavily favor of denying misconduct on stay.3 of the state’s habeas attorneys strikes the Court as For these reasons, we deny the motion particularly untoward in the absence of stay of execution. any colorable allegation of such miscon- duct. DISSENT D. Op. Ct. at 18-19. R. COLE, GUY JR., Circuit Judge, Workman’s reliance on our one-para- dissenting. graph order granting stay in Johnson v. I would grant stay of execu- (Oct. No. 05-6925 2006), does tion and therefore I respectfully dissent. alter this conclusion. That this court has granted stay in one capital case involving majority denies Workman’s motion a Rule fraud-on-the-court stay motion of grounds that his allega- course does not mean that we grant must of tions fraud are not meritorious. The stay in every capital case involving majority such a concludes that Workman has not Rule motion. And that is particular- established that fraud was committed “by ly so here since Johnson had not received officer of the court” because Workman the same degree of state and federal has judi- not presented sufficient evidence cial consideration that Workman has showing re- that the Tennessee Attorney Gen- ceived over the years. last 25 eral knew about the alleged perju- witness ry, the missing evidence, or On record, this statements Workman has not met by Memphis police describing burden of Oliver’s showing a likelihood of suc- death as possible cess result of in friendly fire. demonstrating that the district court abused its discretion. Nearly twen- Further, the majority takes it upon it- ty-five years after Workman’s capital sen- self to review the record in the state-court tence and five stays of later, execution proceedings and based on record, both the state and the public have an concludes that Workman has failed to interest in finality which, if not deserving make “a meaningful showing [Davis’s 3. To the extent Workman means to suggest petitioner must sho[w] that ju- reasonable that the district grant of a certificate rists (or, could debate whether for that mat- of appealability means that we grant should ter, agree that) petition should have been stаy, he wrong on two fronts. The two resolved in a different manner or that the standards, with, begin to quite are different: presented issues adequate were to deserve The inquires one showing a likelihood of suc- encouragement proceed further.”) to (citation merits, cess while requires and quotation internal omitted). marks A showing that jurists reasonable could debate district court's certificate of appealability de- the matter. See Cockrell, Miller-El v. 537 cision, moreover, by no means controls a 322, 336, 123 S.Ct. 154 L.Ed.2d court of appeals’ merits determination. (2003) ("Under 931 standard, controlling recognized properly court district The materi- indeed testimony] was Willis’s whether of here question central be- argue not does State The false.” ally officials by Stаte committed fraud before argue it did Court, nor fore to imputed be can trial show- Workman’s court, district be to “continues counsel habeas and Willis’s State’s Davis’s falsity of to the ing as Circuit.” in addition, the dis- and controversial’ ‘open In lacking. testimony is And Part In Granting (Dist. basis Order as a Ct.’s rely on court trict Application Petitioner’s relief Part In Denying denying Workman’s at Appealability court Of Indeed, the district For Certificate judgment. from Anderson, Fed.Appx. con- opposite to Buell come (quoting to appears of this Cir.2002)). “Peti- (6th Because statement of its light clusion alle- stated with court district replete clarity, are claims of fraud lack tioner’s the sworn Petitioner’s analyze corroborated “forced it gations, rele- subject with claim witness Davis —a fraud-uрon-the-court testimony of precedent knowledge concerning in circuit ambiguity personal persisting vant — evidence, solicitation manufacturing extent and what governing witnesses intimidation or misconduct fraud perjury, alleged the shoot- investigating state’s to the imputed officers can police officials On (Dist. Order Ct.’s the fed- Oliver.” of Lt. when attorneys habeas For Motion (Dist. First Amended Ct.’s alleged.” eral added). 17) (emphasis Mo- Relief Amended Equitable First On Workman’s Order aon rely 15-16). chooses majority That Relief at Equitable For tion or by the pressed conclusion Buell, where drew district me as strikes district by the adopted our even- characterized Boggs Judge Chief curious. in Workman opinions banc en ly divided majority’s to the event, contrary any In setting Cir.2000), Work merit ultimate reasoning, stringent” a “more a “broader” forth wheth with do nothing to has claims man’s must petitioner a habeas what standard See warranted. is stay of execution er a evidentiary hear- to entitled be to show (6th Cir. 371, 373 Bell, 405 F.3d v. Alley alleging 60(b) motion Rule ing on (“Per concurring) banc) (Cole, (en J. procured was judgment habeas true, are of fraud allegations Alley’s haps view, “broader” Under fraud. through it will obviously they are perhaps not— State’s misconduct of allegations to consider to the district up be ha- entitle sufficient are counsel trial fraud if 60(b) and determine motion Rule hearing evidentiary to an petitioner beas entitle occurred.”). Workman’s actually habeas federal State’s whether on whether on turns instead stay to a ment Under fraud. of the awаre was counsel argu in success a likelihood shown has view, allegations stringent” “more evidentiary to an entitled is during state- officials against fraud in This claims. fraud his prove hearing to attributed be cannot proceedings allegedly depends turn Al- counsel. habeas federal ‍‌‌​‌‌​​‌​‌‌‌​​​‌​‌‌​‌‌​‌​‌​​​​​​‌​‌​‌​​​‌​‌​​​‌​‍State’s officials of State conduct fraudulent adopted here the district though imputed can be Workman’s ac- view, it nonetheless stringent” “more believe I counsel. habeas federal State’s ‘broader’ “[u]nder knowledged necessary made has stated perhaps has ... Petitioner standard succeed likely to that he showing deserving a claim inquiry. (Dist. further inquiry.” Ct.’s Order On the U.S. Supreme intervenes, Work- Workman’s First Amended Motion For man’s will not be. Equitable 16). Relief at The situation is even morе troubling I would grant therefore Workman’s mo- when one considers that the Johnson panel tion for a stay due to the prevailing uncer- very could well resolve the ambiguity sur- tainty about the applicable standard for rounding legal what applies standard determining whether allegations entitle Johnson’s and Workman’s claims of fraud him to an evidentiary hearing. But fur- and hold that Johnson is entitled to an ther consideration remains. evidentiary hearing on that basis. If that occurs, a

A manifest panel of Court, miscarriage justice comprised of will ensue: Johnson get Chief will Judge Boggs his hearing, Judges Norris and hearing that Clay recently too granted would get, a stay but of execution for the fact that he will Johnson Bell, already No. 05-6925, been under, as executed. I simply the district cannot court put it, “similar conclude that circum- (Dist. inconsistency in stances.” Ct.’s administration Order Denying Mo- the death penalty tion Stay permissible, For Of 1). especially Execution at fn. where it can so easily Johnson stood in the eliminated. procedural same pos- ture as this case at the time stay there For reasons, these I believe that Work- was granted. After federal review of man is entitled to a stay of execution, and Johnson’s petition had run its I therefore respectfully dissent. course, Johnson filed a Rule in the district court on the grounds that

the district court’s denial of his habeas petition procured by fraud. The dis- trict court denied both Johnson’s Rule

60(b) motion and his motion for a stay. Moreover, Johnson’s allegations of fraud are similаr to that Johnson Thomas CRESS, Petitioner-Appellant, alleged ‍‌‌​‌‌​​‌​‌‌‌​​​‌​‌‌​‌‌​‌​‌​​​​​​‌​‌​‌​​​‌​‌​​​‌​‍that the State’s habeas counsel filed false documents in the district court and allowed a witness to testify Carmen falsely PALMER, Warden, Riverside

trial. here, As the district court in John- Correctional Facility, Respondent- (the son same district court that has pre- Appellee. sided over case), noted that No. 05-1798. the resolution of “whether the ‘broader’ or ‘more stringent’ standard United [for States Court reviewing of Appeals, claims of State officials] Sixth applies Circuit. could be determinative of whether Peti- Argued: March 2007.

tioner is entitled to an evidentiary hearing on his Decided and Filed: fraud-upon-the-court ‍‌‌​‌‌​​‌​‌‌‌​​​‌​‌‌​‌‌​‌​‌​​​​​​‌​‌​‌​​​‌​‌​​​‌​‍April 5, 2007. claim.” John- son v. No. 97-3052, Order Denying

Motion For Stay Pending Appeal, dated

Oct. 2006, at 5. The only conceivable difference between Johnson and Workman then Johnson’s execution has been

stayed, but unless the en banc Court or

Case Details

Case Name: Philip Ray Workman v. Ricky Bell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 7, 2007

Citation: 484 F.3d 837

Docket Number: 06-6451, 07-5031

Court Abbreviation: 6th Cir.