Workman v. BellWorkman v. Bell
The October 30, 1998, panel decision, as amended, affirming the District Court‘s denial of the petition for habeas corpus remains in effect. As a result of an equally divided Court, the en banc Court rejects the petitioner‘s motion to reopen. Seven judges have voted to reverse and remand the case for further proceedings for the reasons stated in an opinion written by Judge Merritt and attached hereto. Seven judges have voted against a remand for further proceedings in the District Court.
Accordingly, the stay of execution heretofore entered is dissolved.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk
MERRITT, Circuit Judge, joined by MARTIN, Chief Judge, and MOORE, DAUGHTREY, COLE, CLAY, and GILMAN, Circuit Judges. In this death penalty, habeas corpus case in which we have temporarily stayed Philip Workman‘s execution in Tennessee, Workman claims that two items of newly discovered evidence, discussed below, show that he did not kill Lt. Oliver of the Memphis Police Department during a robbery in 1981--the crime for which he was sentenced to death.1 Workman asks this court to recall
I. Appellate Jurisdiction
Before we address the substance of Workman‘s request to recall our mandate, we must address a previously-issued en banc decision of this Court on a matter of procedure, In re King, 190 F.3d 479 (6th Cir. 1999), cert. denied, 120 S.Ct. 1538 (2000). In that case, we unanimously held that “once a panel of this court grants or denies an individual permission to file a second or successive petition in the district court,
II. Recall of Mandate Based on Fraud on the Court
Next, we must address the substance of Workman‘s request that we recall our mandate and reconsider our decision denying his first petition for a writ of habeas corpus. The recent Supreme Court case Calderon v. Thompson, 523 U.S. 538 (1998), must necessarily control the case before us. In Calderon v. Thompson, the Supreme Court reviewed a decision of the Ninth Circuit, sitting en banc, which recalled the court‘s mandate, reopened a case, and subsequently
Before we reach the issue of abuse of discretion, however, we must examine whether or not the Calderon v. Thompson Court intended that a recall of a mandate based upon a potential fraud on the court below should be subject to the “second or successive petition” requirements of the Antiterrorism and Effective Death Penalty Act of 1996, found at
While the Court‘s conclusions with respect to the applicability of section 2244 to recalls of mandates was in fact dicta and not the holding of the case, it nevertheless received
Id. at 557 (citation omitted)(emphasis added). Thus, cases of fraud upon the court are excepted from the requirements of section 2244. The rationales that lie behind such an exception are persuasive. First, the requirements of section 2244 place the burden on the petitioner to prove that the outcome of his case would have been different in the face of new evidence, forcing him to prove that his first trial was fundamentally unfair. In most cases, this burden lies with the prisoner because it would have been his duty to search for and argue the evidence in his favor at the time of trial. Prisoners bear that duty in order to avoid subjecting the courts to repeated relitigation due to the submission of evidence which could have been discovered earlier. That is not the situation before us. In a case of fraud upon the court, as noted above, the legitimacy of the judgment is called into question because of the intentional wrongdoing of the prosecution, not the inaction or inefficiency of the defense. Where a prisoner can show that the state purposefully withheld exculpatory evidence, that prisoner should not be forced to bear the burden of section 2244, which is meant to protect against the prisoner himself withholding such information or intentionally prolonging the litigation.We should be clear about the circumstances we address in this case. We deal not with the recall of a mandate to correct mere clerical errors in the judgment itself, similar to those described in
Federal Rule of Criminal Procedure 36 orFederal Rule of Civil Procedure 60(a) . The State can have little interest, based on reliance or other grounds, in preserving a mandate not in accordance with the actual decision rendered by the court. This also is not a case of fraud upon the court, calling into question the very legitimacy of the judgment. Nor is this a case where the mandate is stayed underFederal Rule of Appellate Procedure 41 pending the court‘s disposition of a suggestion for rehearing en banc.
Our task, then, is to determine whether Workman has alleged sufficient facts to support an evidentiary hearing before the district court to determine whether there was a fraud on the court below. First, Workman maintains that police coerced alleged eyewitness Davis into expanding the scope and detail of his testimony outside of what he actually witnessed at the time of Lt. Oliver‘s death. According to Davis‘s trial testimony, he actually witnessed Lt. Oliver being shot by Workman during the altercation outside of the Wendy‘s restaurant, and he viewed the entire altercation from outside of his vehicle. In addition, the sequence of events to which Davis testified made it impossible for anyone other than Workman to have shot Lt. Oliver. His testimony placed Officer Stoddard on the ground with a gunshot wound to his right arm and additionally placed Officer Parker en route to the scene from the other side of the building at the time of the injury which resulted in Oliver‘s death. According to Davis‘s recantation, which was obtained for the first time in October 1999, Davis was actually hiding in his car, unable to see either the sequence of events or to determine who actually shot Oliver, although he did recall seeing through his rear-view mirror Workman and an unidentified number of officers struggling whereafter one officer fell back and pulled his gun. At that time, Davis left the scene. Davis now asserts that he did not leave his vehicle at any time and that he did not see
Next, Workman argues that the prosecution knowingly excluded x-ray evidence, which the defense had previously requested, that detailed the nature of the gunshot wound suffered by Oliver. Only a few months ago, Workman came into possession of the x-ray which allegedly shows that Workman‘s bullet did not fragment in Oliver‘s body in order to cause the smaller exit wound. An x-ray of this type previously had been requested from the Medical Examiner‘s Office. When the prosecution made note of the existence of a chest x-ray of Lt. Oliver in one of its filings with the district court, Workman‘s defense team again approached the Medical Examiner‘s Office concerning the x-ray, and it was at that time produced. According to Workman‘s expert, this gunshot wound is more consistent with the use of a .38 caliber standard bullet, the type that the officers were carrying, and not a hollow-point .45 caliber bullet like the type Workman fired. The expert has indicated that hollow-point bullets normally expand upon entering the body, creating an exit
The elements of a “fraud upon the court” are numerous. Fraud on the court is conduct: 1) on the part of an officer of the court; 2) that is directed to the judicial machinery itself; 3) that is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; 4) that is a positive averment or a concealment when one is under a duty to disclose; 5) that deceives the court. See Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993). In other words, an officer of the court must have intentionally or recklessly failed to disclose information to the court that would have the result of deceiving it. We believe that the prisoner has shown us sufficient facts to create a material dispute of fact on this issue. The prosecution finally produced an x-ray which had not been disclosed to the defendant either by the prosecution or by the arm of the government from which it was requested, the Medical Examiner‘s Office. Both the district court‘s summary judgment determination and this panel‘s review of that decision focused on the lack of an x-ray which could prove or disprove the theory that Workman‘s bullet simply disintegrated upon entering Oliver‘s body. Not only did the panel ask about the existence of an x-ray at oral argument, but it specifically commented that the lack of an x-ray influenced its decision in its written disposition. In addition, there is a material dispute of fact, based on the accusations of Harold Davis, concerning whether the prosecution coerced him into perjuring himself during the course of Workman‘s trial. Based on these facts, the prisoner is entitled to a full evidentiary hearing to determine whether or not a fraud was committed on the district court or the panel below.
In addition to addressing the issue of fraud upon the court, the district court should also address Workman‘s new evidence independent of the allegation of fraud. Whether or not an intentional or reckless fraud was committed, Workman may still satisfy the less-stringent requirements of Brady v. Maryland, 373 U.S. 83 (1963).
In assessing the new evidence independently, the district court must find that the evidence meets the following standard: “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence . . . [and] the underlying claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense . . . .”
We believe Workman has raised facts sufficient to make a prima facie showing that a reasonable jury would not have found him guilty, or alternatively would not have sentenced him to death, if the new evidence is proven and believed. First, the evidence that Davis was asked to alter his testimony before the jury is especially important given Davis‘s status as the only witness to testify that he actually saw Workman shoot Oliver. His recantation might have had a significant impact on the jury. Without Davis‘s testimony, the only witness who would have testified that he saw Oliver fall and simultaneously saw Workman with a gun in his hand was Officer Parker, whose testimony is made less credible due to the fact that he himself could possibly have fired the shot that killed Oliver, albeit unintentionally. In addition, the extraordinary story of coercion which Davis claims to have endured brings our attention to the possible efforts of the prosecution to alter the jury‘s perception of what actually transpired that night in 1981. If Davis‘s accusations are true, then certainly the prosecution must have had little faith that the testimony of the other witnesses could persuade a
The same is true of the alleged prosecutorial suppression of the x-ray which arguably shows that a bullet of the type carried by the other police officers, and not by Workman, actually killed Lt. Oliver. This physical evidence, if proven and believed, is certainly sufficient to make a prima facie showing that “no reasonable factfinder would have found [Workman] guilty of the underlying offense.”
We emphasize that we are not a trial court, and we have not been given the opportunity to actually review and weigh the evidence which our hypothetical reasonable jury would have reviewed. For that reason, there is no evidence before us concerning the percentage of instances that a hollow-point bullet would fail to act in the anticipated manner and expand upon hitting the victim. The very reason for allowing an evidentiary hearing on this matter is for the district court to resume its position as factfinder and examine that evidence. Nor are we making any findings with respect to the allegations of prosecutorial misconduct beyond recognizing that they are substantial enough to make out a prima facie case as noted above.
SILER, Circuit Judge, joined by NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, and BATCHELDER, Circuit Judges. The petition for a writ of habeas corpus was denied by a panel of this court in Workman v. Bell, 178 F.3d 759 (6th Cir. 1998), cert. denied, 120 S. Ct. 264 (1999). Thereafter, in March 2000, Workman filed a motion for leave to file the second habeas corpus petition and a motion for a declaration that
The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
Workman‘s request was not to recall the mandate, but was a motion to reopen. If a motion to reopen is the equivalent of a motion to recall the mandate, such a motion “on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of [28 U.S.C.] § 2244(b).” Calderon v. Thompson, 523 U.S. 538, 553 (1998).
Appellate courts agree that a post-judgment motion under
Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997), citing In re Sapp, 118 F.3d 460 (6th Cir. 1997). Admittedly, the decision in Calderon, 523 U.S. at 557, left open the question of whether a petitioner may raise the very limited issue of a fraud upon the court. The other opinion says that there is a difference between fraud upon the court and newly-discovered evidence, but the alleged fraud upon the court here is based upon newly-discovered evidence, that is, the discovery of the X-ray of the victim‘s body and a recanted statement by an eyewitness, Harold Davis. The evidence may be considered newly discovered to Workman, but for reasons stated hereinafter, I suggest that the X-ray adds nothing to the evidence in this case. Therefore, it is not material and the alleged perjured testimony by Davis has already been the subject of a ruling in the first petition.
X-RAY EVIDENCE
The X-ray of Lt. Oliver was subpoenaed, not at the trial, but only for the district court habeas corpus proceeding. It was also subpoenaed from the Shelby County Medical Examiner, not requested of the prosecution. It was not produced, probably by inadvertence. For purposes of this decision, however, we must assume it was withheld intentionally. The attorney for the State did not have the X-ray at the trial, so far as the record shows. It was in the custody of the Shelby County Medical Examiner. What does it show? It shows that the bullet which killed Oliver likely went through the body intact. Without other evidence, one cannot even know the locations of the entry hole and the exit wound. By other evidence, however, both sides agree that the entry hole was on the left chest and the exit was on the right back.
But the trial court and the habeas corpus court already knew that from the evidence. Even Dr. Sperry‘s original affidavit executed on March 4, 2000, stated that although he had then reviewed the X-ray,
It is significant that he struck out the statement obviously furnished by petitioner‘s counsel that suggested the conclusion came from X-ray evidence. This affidavit is consistent with an affidavit dated September 12, 1995, which was presented to the district court hearing the habeas corpus petition when Dr. Sperry stated therein that “Exhibits C and D [autopsy protocol and picture] indicate that the bullet that created the illustrated bullet wounds exited the decedent‘s body, and in doing so, created an exit wound smaller than the entry wound.” Moreover, the autopsy report did not reveal the existence of any bullet fragments in Oliver‘s body. Thus, the X-ray has proven nothing that the original autopsy and photographs failed to show. The X-ray does not show wounds, but only shows that the bullet did not fragment in Oliver‘s body.
Dr. Sperry filed another affidavit on April 1, 2000, in which he amplified upon his previous affidavit by saying:
That x-ray establishes that the bullet that killed the victim did not fragment inside the victim‘s body. That x-ray establishes that the bullet that killed the victim emerged from his body intact. Because the x-ray establishes that the bullet that killed the victim did not fragment, and because the x-ray establishes that the bullet that killed the victim emerged from his body intact, I believe to a reasonable degree of medical certainty that the bullet that killed the victim was not a .45 silver-tip hollow-point bullet.
Although he added language to his previous affidavit, he came to the same earlier conclusion prior to looking at the additional X-ray evidence.
The other opinion suggests:
Not only did the panel [of this court] ask about the existence of an x-ray at oral argument, but it specifically commented that the lack of an x-ray influenced its decision in its written disposition.
It suggests later:
The panel of our court that originally heard this appeal did not know of the existence of an x-ray showing Oliver‘s wounds. It speculated that in the absence of an x-ray which would disprove the theory that only a fragment of the .45-caliber bullet exited Oliver‘s body, thus creating the smaller exit wound, there was no reason to conclude that Workman‘s bullet didn‘t actually cause Oliver‘s mortal wound.
Admittedly, the original panel of this court did not know of any X-ray evidence, and such a statement was speculation. However, the lack of X-ray evidence was not mentioned in the opinion and the lack of the X-ray had no bearing on the ultimate conclusion by the panel. The other opinion erroneously cites the original decision, Workman v. Bell, 160 F.3d 276 (6th Cir. 1998), which was superseded, upon a petition for rehearing, by the decision which is now before the court, Workman v. Bell, 178 F.3d 759 (6th Cir. 1998). Our court did not “talk out of the other side of our mouths,” as suggested by the other opinion. It was dictum when the court
TESTIMONY OF HAROLD DAVIS
The petitioner now asserts that the prosecution used perjured testimony at the time of the original trial. This issue was previously raised in his first petition. See id. at 766. Obviously, he did not have the recanted testimony when the first petition was filed, because he was unable to convince the court that the testimony of Davis was false, except to show that no one had seen him at the scene of the crime. However, Davis now admits he was at the scene. Before the first habeas petition was filed, Workman‘s counsel had already made contact with Davis, who had denied that his testimony was coerced or false. In addition, it is noteworthy that the recantation statement filed in this court is not under oath, unlike his testimony at trial, and is in contradiction to the other statement filed by Vivian Porter that Davis was with her the night Oliver was shot, at an entirely different location. His recanted statement admits that he was at the Wendy‘s
FRAUD ON THE COURT
I agree that this en banc court can consider the petition under the theory of a “fraud upon the court,” as explained in Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir. 1993). See Calderon, 523 U.S. at 557. One of the elements of fraud upon the court is that the conduct must be by an officer of the court. If there was fraud on the court for failure to produce the X-ray before the district court, the act was not by an officer of the court, but by the Shelby County Medical Examiner. In addition, the X-ray was not material to the issues, as shown by the first affidavit by Dr. Sperry. Fraud upon the court primarily turns upon whether it was perpetrated by an attorney, Demjanjuk, 10 F.3d at 352, and nothing in this record demonstrates the Attorney General knew of the X-ray at the district court proceeding.
If there was any fraud on the court with regard to the testimony of Davis, that would have been a fraud upon the state court, and should be presented to that court, not to our court. At argument, counsel for the petitioner admitted that if there was a fraud involving the testimony of Davis, it would have been a fraud on the state court only. However, he emphasized that it should be considered as corroboration of fraud upon the federal court by the failure to produce the X-ray. Nevertheless, there is no fraud upon our court under the criteria set out in Demjanjuk which would authorize this extraordinary relief requested.
NEWLY-DISCOVERED EVIDENCE
The other opinion favors a remand not only to decide the issue of fraud upon the court based upon the failure to produce the X-ray at the habeas corpus hearing and the use of
Although the other opinion states in footnote 4, “[W]e are not reviewing an application for permission to file a second petition or a panel‘s decision to permit or deny such a request,” that is exactly what it is doing. The criteria for reviewing the claim under newly-discovered evidence is set out in
The other opinion also suggests that the district court should have an evidentiary hearing on the issue of whether a reasonable jury would have come to a different conclusion if it had this evidence before it. This also is a claim under
Stoddard was shot by Workman and did not fire his weapon. That was further corroborated by the police report which indicated that after the shooting, another officer took custody of Stoddard‘s weapon and found it to be loaded with six live rounds. Unless he reloaded after having been wounded, there is no likelihood that he fired his handgun. Parker also denied firing any weapon, although a police document indicates that Parker had a shotgun and Steve Craig said that after Oliver was shot, Parker shot at Workman with the shotgun. That evidence was resolved in the prior decision of this court when we said there, “Even Dr. Sperry does not theorize that Lt. Oliver was killed with buckshot.” Workman, 178 F.3d at 768.
The other opinion says:
Without Davis‘s testimony, the only witness who would have testified that he saw Oliver fall and simultaneously saw Workman with a gun in his hand was Officer Parker, whose testimony is made less credible due to the fact that he himself could possibly have fired the shot that killed Oliver, albeit unintentionally.
However, there is no testimony in the record, nor has the petitioner produced any during the almost 19 years since the events occurred, that any other person there besides Workman and Oliver fired a handgun.
For all these reasons, I would deny the petition for rehearing en banc and affirm the decision of the prior panel of this court and the district court in denying the writ.
Notes
Moody v. State, 46 Tenn. 299 (S.Ct. 1869). It seems, then, that Tennessee courts require that in order for a defendant to be convicted of felony murder for a murder which he did not himself commit, the person who committed the murder must have had at least the intent required of the defendant, which is the intent to commit the underlying felony. This would not be an unreasonable rule.It must be a killing in the pursuit of an unlawful act that all were engaged in; and in carrying out the original design, if any one of the party kill any one that oppose them, it would be murder in all the rest of the company that come with the intent to do that unlawful act, though there was no express intention to kill any person in the first enterprise; because, the law presumes they come to make good their designs against all opposition.
We do not believe that the decision of a jury which was instructed to determine that Workman actually caused the death of Lt. Oliver by his own hand can be salvaged under these circumstances if Workman is able to show that withheld evidence could have convinced a jury that Oliver was killed by “friendly fire.” Alternatively, it is obvious that if the jury had harbored doubts about whether Workman‘s bullet killed Lt. Oliver, then that jury would have had a considerably more difficult time sentencing Workman to death, and perhaps would not have done so. Therefore, we conclude that it is our duty at this stage of the proceedings to determine whether or not Workman has alleged evidence which would tend to show that his bullet did not kill Lt. Oliver, and that such evidence, if the standards outlined in the rest of this opinion are met, would suffice to justify at the least a new sentencing hearing if not a new trial in this case.
We are not reviewing an application for permission to file a second petition or a panel‘s decision to permit or deny such a request. In order to do complete justice in this death penalty case it is necessary to direct the district court to review the new facts both under a “fraud on the court” standard and independently under a newly discovered evidence standard. To prohibit such a review could otherwise lead to the execution of a person who did not in fact commit the murder for which he is sentenced to death.
We interpret literally the statute depriving an en banc court or the Supreme Court of jurisdiction to review the grant or denial of permission to file a successive petition. That is, in order for an en banc court or the Supreme Court to be deprived of jurisdiction, it must literally be reviewing “the grant or denial of an authorization by a court of appeals to file a second or successive application,” not a request to recall the court‘s mandate and reopen the case.