Ivan Teleguz v. David Zook , 806 F.3d 803 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-9
IVAN TELEGUZ,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
No. 14-2
IVAN TELEGUZ,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, District
Judge. (7:10−cv−00254−JPJ)
Argued: September 16, 2015 Decided: November 30, 2015
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Motz joined. Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Michael Francis Williams, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant. Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Kenneth W. Allen, William P.J. Kimmitt,
KIRKLAND & ELLIS LLP, Washington, D.C.; Matthew C. Stiegler,
Philadelphia, Pennsylvania; Elizabeth J. Peiffer, VIRGINIA
CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville,
Virginia, for Appellant. Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
2
WYNN, Circuit Judge:
In 2006, a jury convicted Ivan Teleguz of capital murder
for hire of his ex-girlfriend. After making his way through the
Virginia state courts, Teleguz sought habeas corpus relief in
federal court. In 2012, this Court held that the district court
had failed to engage in a sufficient inquiry into Teleguz’s
habeas petition, particularly as it related to his gateway
innocence claim. Accordingly, we remanded for reconsideration.
Before us now is the fruit of that remand. After a
several-day evidentiary hearing, the district court made
determinations using the appropriate legal standard and
supported by the record. The district court’s denial of
Teleguz’s petition for a writ of habeas corpus therefore stands.
I.
In 2001, Stephanie Sipe was found murdered in the
Harrisonburg, Virginia apartment she shared with her infant son.
While Teleguz, Sipe’s ex-boyfriend and her son’s father, had
been a suspect, the investigation had stalled until Aleksey
Safanov, 1 imprisoned in Massachusetts on federal charges,
provided a tip to United States Marshal Michael Nelson that “he
knew of a Russian male that had his wife killed. He said that a
1
Safanov was also Teleguz’s co-defendant in a firearms
possession and sales case in which Safanov pled guilty and
Teleguz went to trial and was convicted on all counts. United
States v. Teleguz, 492 F.3d 80 (1st Cir. 2007).
3
Russian male hired a black male from Pennsylvania, Lancaster,
Pennsylvania to kill his wife.” J.A. 2828. Safanov’s tips led
to Edwin Gilkes, and U.S. Marshal Nelson passed the information
on to the Harrisonburg Police Department. Ultimately, the
investigation resulted in, among other things, a capital murder
for hire case against Teleguz.
In February 2006, a jury convicted Teleguz of murder for
hire. Teleguz v. Pearson, 689 F.3d 322, 325 (4th Cir. 2012).
Michael Hetrick, who had actually committed the killing,
testified at trial that Teleguz had paid him two thousand
dollars to slit Sipe’s throat.
Hetrick’s murder-for-hire allegations were corroborated by
both Gilkes and Safanov. Gilkes testified that he had been
present at a birthday party where Teleguz hired Hetrick to
commit the murder. Gilkes also testified that he accompanied
Hetrick to Sipe’s apartment and waited outside for Hetrick
during the murder. Gilkes further claimed that he was afraid of
Teleguz because he had heard rumors that Teleguz was a member of
the Russian mafia.
Safanov testified at Teleguz’s trial that Teleguz attempted
to hire him to murder Sipe to avoid paying child support.
Safanov also testified that Teleguz had spoken to him about the
murder after it had occurred, complaining that the man he had
hired to kill Sipe had left blood at the scene and offering
4
Safanov money to “eliminate” the killer. Teleguz, 689 F.3d at
326.
In February 2006, a Virginia jury recommended that Teleguz
be sentenced to death upon finding two statutory aggravating
factors: vileness and future dangerousness. The Supreme Court
of Virginia affirmed Teleguz’s conviction and sentence. Teleguz
v. Commonwealth, 643 S.E.2d 708 (Va. 2007). Teleguz proceeded
to file a petition for writ of habeas corpus in state court,
which the Supreme Court of Virginia dismissed. Teleguz v.
Warden of Sussex I State Prison, 688 S.E.2d 865 (Va. 2010).
Teleguz then turned to the federal courts, filing a
petition for writ of habeas corpus in the United States District
Court for the Western District of Virginia in November 2010.
Some of Teleguz’s claims had been adjudicated on the merits in
state court while others had been procedurally defaulted.
Teleguz, 689 F.3d at 326. Teleguz argued that his defaulted
claims should nevertheless be considered, primarily because he
had new, reliable evidence that he was actually innocent
(“Gateway Innocence Claim”).
In support of his Gateway Innocence Claim, Teleguz offered
what we previously described as three categories of evidence.
First, Teleguz presented affidavits of witnesses who indicated
that they had not seen him at the birthday party during which he
was alleged to have hired Hetrick to kill Sipe. Second, he
5
presented evidence to establish that a murder in Ephrata,
Pennsylvania alluded to during his trial never occurred. Third,
and most importantly, Teleguz presented affidavits in which
Gilkes and Safanov recanted testimony they offered at Teleguz’s
trial.
Gilkes claimed that he had been coerced into testifying
against Teleguz by the prosecutor, who “made clear that if [he]
did not, [he] would have been the one on death row today, not
Teleguz.” J.A. 3546. Gilkes executed affidavits in both 2008
and 2010 disavowing aspects of his trial testimony.
Similarly, Safanov, who had left the United States for
Kazakhstan and Kyrgyzstan, ostensibly submitted an affidavit.
According to that affidavit, as well as affidavits submitted by
Teleguz’s defense team, which had been in contact with someone
claiming to be Safanov, Safanov asserted that he had never
discussed Sipe’s murder with Teleguz and agreed to testify
falsely during Teleguz’s trial because both the prosecutor
pursuing Teleguz and a United States marshal told him that if he
cooperated, he would be eligible for perks including an S visa
allowing him to remain in the United States despite pending gun
charges.
In August 2011, the district court denied Teleguz habeas
relief without holding a hearing. Teleguz v. Kelly, 824 F.
Supp.2d 672 (W.D. Va. 2011). Teleguz appealed, arguing that he
6
was “entitled to an evidentiary hearing to demonstrate a
miscarriage of justice.” Petitioner’s Br. at ii. This Court
vacated and remanded for a rigorous Gateway Innocence Claim
analysis, strongly suggesting that an evidentiary hearing may be
warranted to assess the credibility of the recanting witnesses.
Teleguz, 689 F.3d 322.
On remand in district court, Teleguz changed his tune,
“arguing that an evidentiary hearing [was] unnecessary” and that
the district court should decide his Gateway Innocence Claim “on
the cold record.” Teleguz v. Pearson, No. 7:10CV00254, 2012 WL
6151984, at *2 (W.D. Va. Dec. 11, 2012). “In light of th[is
Court’s] instructions,” however, the district court found that
an evidentiary hearing was “necessary.” Id. at *3.
Accordingly, it held a several-day evidentiary hearing in
November 2013.
At the hearing, Gilkes appeared but refused to testify.
And Safanov did not appear, even by deposition or phone. In
other words, neither of the recanters testified in support of
their recantations. Meanwhile, Hetrick appeared and testified
in detail and consistent with his trial testimony, i.e., that
Teleguz had hired him to kill Sipe. Prosecutor Marsha Garst,
whom Gilkes and Safanov accused of threatening them into
testifying against Teleguz, appeared and testified that those
accusations were false. And U.S. Marshal Nelson testified that
7
Safanov’s accusation that Nelson had told Safanov he could
benefit from an S visa for assisting the government was also
false.
Ultimately, in July 2014, the district court again denied
Teleguz’s petition. The district court held that it “c[ould]
not conclude that more likely than not, given the overall, newly
supplemented record, no reasonable juror would have found
Teleguz guilty beyond a reasonable doubt. As such, the
petitioner has not made a threshold showing of actual innocence
to permit review of his procedurally-defaulted claims.” Teleguz
v. Davis, No. 7:10CV00254, 2014 WL 3548982, at *20 (W.D. Va.
July 17, 2014) (quotation marks and citation omitted). The
district court also rejected Teleguz’s claim that he had made a
sufficient showing that his habeas attorneys had been deficient
in failing to pursue the Ephrata, Pennsylvania murder issue
(“Martinez Claim”). This appeal ensued. We now review the
district court’s denial of Teleguz’s habeas petition de novo.
Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009).
II.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) sharply limits federal habeas relief. Sharpe v. Bell,
593 F.3d 372, 378-79 (4th Cir. 2010). If a state court
adjudicates a petitioner’s claims on the merits, a federal court
may provide relief only if the resulting state court decision
8
“[i]s contrary to or involved an unreasonable application of
federal law” or “[i]s based on an unreasonable determination of
the facts in light of the evidence” that was before it. 28
U.S.C. § 2254(d).
Generally, a federal court may not consider claims that a
petitioner failed to raise at the time and in the manner
required under state law. House v. Bell, 547 U.S. 518, 536
(2006). Exceptions exist, however, when “the prisoner
demonstrates cause for the default and prejudice from the
asserted error.” Id.One such exception is made for cases in which a compelling
showing of actual innocence enables a federal court to consider
the merits of a petitioner’s otherwise defaulted claims. See
Schlup v. Delo, 513 U.S. 298 (1995). In such cases, new
evidence “establish[es] sufficient doubt about [a petitioner’s]
guilt to justify the conclusion that his execution would be a
miscarriage of justice unless his conviction was the product of
a fair trial.” Id. at 316 (emphasis omitted).
Another such exception exists for ineffective-assistance-
of-trial-counsel claims where “(1) the ineffective-assistance-
of-trial-counsel claim is a substantial one;” (2) the “cause”
for default “consist[s] of there being no counsel or only
ineffective counsel during the state collateral review
proceeding;” (3) “the state collateral review proceeding was the
9
initial review proceeding in respect to the ineffective-
assistance-of-trial-counsel claim;” and (4) state law requires
that an ineffective assistance claim “be raised in an initial-
review collateral proceeding.” Fowler v. Joyner, 753 F.3d 446,
461 (4th Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015)
(quotation marks and citations omitted). When these conditions
are met, the merits of an otherwise defaulted ineffective
assistance claim may be reached. Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012).
Both of these exceptions are, in essence, procedural
mechanisms. If the requisite showing is made, they allow
otherwise defaulted substantive claims to be reached on the
merits. Id.; Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th
Cir. 2004) (distinguishing between a substantive claim and a
gateway claim through which a habeas petitioner must pass to
have his substantive claims considered on the merits). Stated
differently, although a petitioner claims actual innocence, for
example, for purposes of asserting a gateway innocence claim,
such an innocence claim “does not by itself provide a basis for
relief. Instead, his claim for relief depends critically on the
validity” of his procedurally defaulted claims. Coleman v.
Hardy, 628 F.3d 314, 318 (7th Cir. 2010) (quotation marks
omitted).
10
With this legal framework in mind, we turn to Teleguz’s
Schlup and Martinez arguments.
A.
With his main argument on appeal, Teleguz challenges the
district court’s rejection of his Gateway Innocence Claim.
Teleguz contends that the district court’s analysis was unsound
and that its conclusion constitutes reversible error. With both
contentions, we disagree.
When a petitioner raises a gateway innocence claim, it
must be supported by “new reliable evidence.” Schlup, 513 U.S.
at 324 (emphasis added). However, in its consideration of a
petitioner’s Schlup gateway innocence claim, the district court
“must consider ‘all the evidence’ old and new, incriminating and
exculpatory, without regard to whether it would necessarily be
admitted under ‘rules of admissibility that would govern at
trial.’” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at327–28).
In cases with recantations, evidentiary hearings “may be
necessary to assess whether [they] are credible. . . .”
Teleguz, 689 F.3d at 331 (quotation marks and citation omitted).
Without doubt, “the district court is permitted under Schlup to
‘make some credibility assessments’ when, as here, a state court
has not evaluated the reliability of a petitioner’s ‘newly
presented evidence [that] may indeed call into question the
11
credibility of the witnesses presented at trial.’” Id. at 331-
32 (quoting Schlup, 513 U.S. at 330).
Ultimately, the district court must determine whether “it
is more likely than not that no reasonable juror would have
found [the] petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 328. Or, as this Court put it, “to satisfy
the Schlup standard, a petitioner must . . . demonstrate that
the totality of the evidence would prevent any reasonable juror
from finding him guilty beyond a reasonable doubt, such that his
incarceration is a miscarriage of justice.” Teleguz, 689 F.3d
at 329. Only then may the district court reach the merits of
the petitioner’s procedurally defaulted claims. House, 547 U.S.
at 538.
The Supreme Court has underscored that “the Schlup standard
is demanding” and permits merits review only in “extraordinary”
cases. House, 547 U.S. at 538 (quotation marks omitted). See
also McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013) (“We
stress once again that the Schlup standard is demanding. The
gateway should open only when a petition presents evidence of
innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error.”) (quotation
marks and citation omitted). At the same time, though, the
Schlup standard does not require absolute certainty about the
12
petitioner’s innocence. Rather, the petitioner must demonstrate
that more likely than not, in light of new and reliable
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt. House, 547 U.S. at 538.
Based on the record before us now, we, like the district
court, are unable to reach the conclusion that “the totality of
the evidence would prevent any reasonable juror from finding
[Teleguz] guilty beyond a reasonable doubt.” Teleguz, 689 F.3d
at 329.
1.
We focus first on the Gilkes and Safanov recantations,
which are at the heart of Teleguz’s Gateway Innocence Claim.
Gilkes recanted several key aspects of his trial testimony,
which he claimed were the products of coaching and intimidation.
Specifically, in his post-trial affidavits, Gilkes recanted,
among other things, his claim that Teleguz was present at David
Everhart’s birthday party, where Hetrick contended that Teleguz
had hired him to kill Sipe. Further, Gilkes claimed that he
“never heard or overheard Ivan Teleguz hiring Michael Hetrick to
kill his ex-girlfriend,” J.A. 3484, and claimed that he did not
“know who hired Hetrick to kill Ms. Sipe, or if anyone hired
him.” J.A. 3548.
Gilkes claimed that he had been coerced into testifying
against Teleguz by the prosecutor, who “made clear that if [he]
13
did not, [he] would have been the one on death row today, not
Teleguz.” J.A. 3546. Per, Gilkes “[m]ost of [his] testimony
was fabricated,” id., and he “said those things because Marsha
Garst told [him] that she was only interested in information
that put this murder on Ivan Teleguz.” J.A. 3484. Gilkes
plainly stated in his affidavits that Garst and Investigator
Whitfield, the police detective on the case, told him to say
that Teleguz was responsible for Ms. Sipe’s murder. For
example, Gilkes asserted:
I said those things because Marsha Garst told me
that she was only interested in information that put
this murder on Ivan Teleguz. During at least one
interrogation of me by Marsha Garst, she directed the
investigator to turn off the tape recorder. While the
tape was off, she told me that it was Ivan Teleguz
that she was interested in. She already knew that
Michael Hetrick had done the killing because she had
his DNA at the scene. She said that any deal I got
would depend on me giving her Ivan Teleguz, and she
told me to give her as much about Ivan Teleguz as I
could.
J.A. 3484.
Likewise, Safanov later claimed that he never discussed
Sipe’s murder with Teleguz and agreed to testify during
Teleguz’s trial only because both the prosecutor pursuing
Teleguz and a United States marshal told him that if he
cooperated, he would be eligible for perks including a visa
allowing him to stay in the United States.
14
Because Safanov had left the United States, contact with
him has been only long-distance. Teleguz’s defense team had had
conversations with someone claiming to be Safanov and submitted
affidavits stating, for example:
In the first phone call, we identified ourselves
as Teleguz’s lawyers. Safanov told us that Marcia
[sic] Garst, the Commonwealth’s Attorney who
prosecuted Teleguz, guaranteed she would get Safanov
an S Visa. An S Visa would allow him to stay in the
country despite his criminal convictions. Garst
promised Safanov she would get him an S Visa, if
Safanov would help Garst get the death penalty for
Teleguz.
J.A. 3555. Similarly, the recanting affidavit executed by
someone claiming to be Safanov himself stated, among other
things:
Ivan has never told me that he had arranged to
have Stephanie Sipe killed, and my testimony at his
capital murder trial, that he did tell me this, was
false. I was pressured by Marsha Garst, the Virginia
prosecutor in Ivan’s capital case, to testify that
Ivan had arranged the murder so that Ivan would get
the death penalty. In exchange for my testimony,
Garst offered to help me in a number of ways,
including help getting a good deal on federal criminal
charges I was facing at the time.
J.A. 3595.
Neither Safanov nor Gilkes testified at the evidentiary
hearing. The district court thus noted its “limited ability to
judge their truthfulness.” Teleguz, 2014 WL 3548982, at *9.
By contrast, the government witnesses accused of
misconduct—Garst, Whitfield, and Nelson—testified at the
15
evidentiary hearing. For example, Safanov claimed Garst had
visited him in prison with cookies she had baked for him.
Garst’s response at the evidentiary hearing: “I do not bake
cookies for inmates, nor would I have done that.” J.A. 2893.
When asked if she had made Safanov any guarantees about an S
visa, she flatly denied any such allegations, noting “I’m a
local state constitutional officer; I cannot make such a
representation.” J.A. 2892. And Garst flatly denied having
instructed either Safanov or Gilkes to lie—either to secure
Teleguz’s capital conviction or for any other reason.
Similarly, when U.S. Marshal Nelson was asked, for example,
if he had spoken “with Mr. Safanov about any visa issues that he
was facing,” he flatly denied with a “No, sir.” J.A. 2838.
Nelson similarly denied having any discussions with Safanov’s
girlfriend about Safanov’s visa issues. Instead, Nelson
confirmed that he had not even known about the S visa program
for government cooperators at the pertinent time. Nelson also
made plain that he had had no involvement with the Virginia
investigation of the Sipe murder after he relayed to the
Harrisonburg police the tip information that rekindled the
stalled investigation and ultimately led to Teleguz.
Despite the claims of prosecutorial misconduct, at the
evidentiary hearing, Garst, Whitfield, and Nelson testified and
denied Gilkes’s and Safanov’s accusations of coaching,
16
intimidation, and misconduct. Teleguz’s counsel had the
opportunity to cross-examine these witnesses. And the district
court found Garst’s, Nelson’s, and Whitfield’s versions of the
pertinent events “reasonable,” and their testimony “credible.”
Teleguz, 2014 WL 3548982, at *10-11.
In other words, the district court had before it affidavits
asserting that Gilkes and Safanov had falsely testified about
Teleguz’s guilt at the behest of the prosecution. But the
recanting affiants chose not to testify and were not subject to
cross-examination. Meanwhile, the government witnesses
implicated in Gilkes’s and Safanov’s affidavits took the stand
and gave reasonable accounts that the district court believed.
The district court therefore credited the prosecution’s version
of events and discredited Gilkes’s and Safanov’s versions,
specifically finding the recanting affidavits “unreliable.”
Teleguz, 2014 WL 3548982, at *10.
When we remanded this matter for an evidentiary hearing—at
Teleguz’s express request—we made plain that the district court
could, and indeed, might need to, make credibility
determinations. Teleguz, 689 F.3d at 331. See also Schlup, 513
U.S. at 330 (“[T]he newly presented evidence may indeed call
into question the credibility of the witnesses presented at
trial. In such a case, the habeas court may have to make some
credibility assessments.”). The district court heard our
17
instructions loud and clear, held a several-day hearing, and
made the necessary credibility determinations. 2
Credibility determinations are “deserving of the highest
degree of appellate deference.” Evergreen Int’l, S.A. v.
Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008)
(quotation marks and citation omitted). See also, e.g., O’Dell
v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en banc)
(noting that “the district court’s factual findings regarding
the credibility of testimony it has actually heard are findings
subject to review only under a clearly erroneous standard”).
Indeed, the court below, and “not the reviewing court, weighs
the credibility,” and we generally “do not review credibility
determinations.” Smith v. Bank of Am., N.A., 443 F. App’x 808,
809 (4th Cir. 2011) (unpublished).
We see no basis for substituting our own credibility
determinations for the district court’s. Gilkes and Safanov
claimed that they lied at trial because they were instructed and
intimidated into doing so by the prosecution. But Gilkes and
Safanov refused to testify at the evidentiary hearing and affirm
their recantations or be subject to cross-examination.
Meanwhile, the implicated prosecution witnesses—Garst,
2 Nowhere in our prior opinion did we “order,” Petitioner’s
Br. at 28, the district court to make a finding on remand
regarding whether the circumstances surrounding the Gilkes and
Safanov recantations were the result of coercion, bribery, or
misdealing.
18
Whitfield, and Nelson—did testify, were cross-examined by
Teleguz’s counsel, and were deemed credible. Under these
circumstances, we uphold the district court’s determination that
the recanting affidavits did not constitute the “reliable” new
evidence that Schlup requires. Schlup, 513 U.S. at 324. 3
2.
In contrast to Gilkes and Safanov, Hetrick testified at the
evidentiary hearing. Teleguz argues that the district court
erred in finding Hetrick’s testimony credible. Again, we see no
basis for disturbing the district court’s determination. 4
At trial and at the evidentiary hearing, Hetrick testified
that Teleguz agreed to pay him two thousand dollars to kill
Sipe, who had taken money and drugs from Teleguz and sought
child support for their infant son. Teleguz later drove Hetrick
and Gilkes from Lancaster, Pennsylvania to Harrisonburg,
Virginia, where Sipe lived, showed them her apartment, and then
left them to establish an alibi. Hetrick gained entry into the
3The district court also noted inconsistencies and gaps in
the recanting affidavits. That discussion is, however,
tangential to the larger thrust, i.e., the prosecutorial
intimidation and influence, which is thus our focus.
4 Teleguz plainly overreaches in trying to suggest that in
stating “having observed his demeanor and testimony first-hand,
I believe that Hetrick’s evidence alone was sufficient to have
convinced the jury of Teleguz’s guilt,” Teleguz, 2014 WL
3548982, at *17, the district court thereby “rejected” the state
court’s statement that “to return a guilty verdict, the jury had
to believe the testimony of Safanov, Gilkes, and Hetrick.”
Petitioner’s Br. at 30-32.
19
apartment and slit Sipe’s throat as Teleguz had directed.
However, Sipe fought back and, in the struggle, Hetrick wounded
his hand with his own knife. Afterwards, while cleaning his
wound, he discovered the couple’s infant son in the bathtub.
Hetrick turned off the bathtub water and left.
The district court had the opportunity to “observe[]
[Hetrick’s] demeanor and testimony first-hand” and found his
account detailed, consistent with his trial testimony, and
“highly creditable.” Teleguz, 2014 WL 3548982, at *17. The
district court did not wholly discount Hetrick’s testimony
because he secured a better deal with the government for
cooperating or because of the risks associated with later
changing his account. Instead, the district court noted, for
example, that “[l]eniency for government cooperators is common,
and absent evidence of other misconduct, their motivation to
help themselves does not render their statements necessarily
unreliable.” Id. at *16. Again, credibility determinations are
“deserving of the highest degree of appellate deference,”
Evergreen Int’l, S.A., 531 F.3d at 308 (quotation marks and
citation omitted), and we see no basis for swapping the district
court’s credibility determination out in favor of our own.
Teleguz attempts to make much of the fact that the district
court, at the warden’s request, appointed Hetrick—and Gilkes—
independent counsel for purposes of the evidentiary hearing. We
20
refuse Teleguz’s invitation to read impropriety into either the
warden’s or the district court’s looking out for Gilkes’s,
Hetrick’s, or anyone’s, rights and interests by appointing them
independent counsel under circumstances such as these. And
while the language the warden’s counsel used in the motions to
appoint independent counsel was, no doubt, stark, the warden’s
counsel was stating a seemingly obvious truth: that testifying
at an evidentiary hearing in a manner that contradicted how they
testified at trial could have serious legal consequences such as
perjury or broken plea agreements for Gilkes, Safanov, Hetrick,
or any witness.
Further, Teleguz heavily relies on Wolfe v. Clarke, 718
F.3d 277 (4th Cir. 2013), cert. denied, 134 S. Ct. 1281 (2014).
But we fail to see how Wolfe advances the ball for Teleguz. In
Wolfe, the prosecution illicitly threatened a recanting witness
whose recantation had already been deemed candid and persuasive
at an evidentiary hearing to impact how he would testify at
Wolfe’s retrial. Indeed, the Wolfe proceedings were riddled
with grave prosecutorial misconduct such as interview recordings
that authorities refused to hand over and joint meetings with
key witnesses to choreograph and coordinate testimony. Under
those circumstances, the district court found that Wolfe had met
the Schlup standard and that he had presented meritorious
claims. Id. at 280-81. Yet even in the face of all that, this
21
Court held that the district court abused its discretion in
barring the government from retrying Wolfe, stating “[w]e are
confident that the retrial will be properly handled, and, if
convictions result, that the appellate courts will perform their
duties.” Id. at 289.
3.
Teleguz also contends that he “presented substantial
evidence that he was not even present at the birthday party”
where, according to Hetrick’s and Gilkes’s trial testimony and
Hetrick’s hearing testimony, Teleguz had hired Hetrick to kill
Sipe. Petitioner’s Br. at 41. According to Teleguz, this
undermines the credibility of Hetrick’s story. In reality,
however, the evidence presents a much more mixed picture as to
whether Teleguz attended the birthday party.
Teleguz submitted several affidavits in which individuals
stated that they had not seen Teleguz at the birthday party.
Importantly, two such affidavits belonged to the party hosts,
whom Teleguz deposed de bene esse before the evidentiary
hearing. The female host—Latesha Everhart, who is also Gilkes’s
sister—testified at deposition that her husband was so drunk the
night of the party that he would not have been in a position to
know who was there.
Further, and crucially, Everhart testified that “half of
the stuff in [her affidavit] isn’t true.” J.A. 3231. She
22
stated that Teleguz “could have been there.” J.A. 3204. “Edwin
[Gilkes] could have let him in upstairs without coming through
the front door.” J.A. 3237. 5 In other words, the party hosts
had no idea whether Teleguz was at the party or not. The female
host thus expressly disavowed the statement in her affidavit
that “Ivan Teleguz was definitely not at my husband[’s] birthday
party.” J.A. 3204. What’s more, she raised serious questions
about the integrity of the affidavits. 6
In light of the open question the affidavits present as to
whether Teleguz had attended the birthday party, we share the
district court’s reluctance to find this evidence to be the kind
of “reliable” new evidence needed to meet the demanding Schlup
standard. Schlup, 513 U.S. at 324
4.
The last category of evidence supporting Teleguz’s Gateway
Innocence Claim purportedly establishes that the Ephrata,
Pennsylvania murder alluded to during Teleguz’s trial never
occurred. But this evidence, even more than the other
5 Gilkes independently confirmed that, to enter his room, he
would “go up through the back of the house through the fire
escapes and come in through a window.” J.A. 4372.
6 Everhart testified in her deposition that a young woman
visited her, wrote some things down, and left. Several weeks
later, Everhart was asked to sign a paper, presumably the
affidavit, but never given her own copy. Everhart was asked:
“Do you have any reason to think that the affidavit you signed
was altered or changed?” J.A. 3230-31. And she responded in
the affirmative: “Yeah, I do . . . . Because half of the stuff
in there isn’t true.” Id. at 3231.
23
categories already discussed, fails to add the requisite heft to
Teleguz’s Gateway Innocence Claim.
Gilkes’s specific testimony about the Ephrata, Pennsylvania
murder was that “down in Ephrata one day . . . a couple of []
Russians on Main Street were outside the parking lot of the rec
center. There was two men that got out of the car. We figured
they were both, they were both Russians to the best of my
knowledge.” J.A. 4420. Gilkes continued that “the one walked
up and said that . . . if his boys didn’t have the money at a
certain time that in a couple of days that some of them would be
killed.” Id. at 4421. Gilkes testified that Teleguz did not
make that statement but “was present during the statement.” Id.
Gilkes reported that someone was later killed, “a week, three
days to a week after that in Ephrata Street, on Main Street.”
Id. at 4422. In other words, Gilkes plainly did not testify
that Teleguz had killed anyone in Ephrata, Pennsylvania.
During the evidentiary hearing, Teleguz presented evidence
that no murder had ever occurred outside the recreation center
in Ephrata, Pennsylvania (though other evidence indicated that a
murder in which Teleguz may have been involved had occurred in a
nearby town). He thus suggested that the jury was misled into
believing that he had been behind a phantom murder.
We fail to see how the Ephrata, Pennsylvania murder issue
could show that Teleguz was actually innocent of Sipe’s murder
24
in Harrisonburg, Virginia. The Ephrata, Pennsylvania murder-
related evidence thus cannot support a determination that
Teleguz had met the “demanding” Schlup standard. House, 547
U.S. at 538.
5.
Even in the face of the broadened record, we cannot say
that this is the “rare” and “extraordinary” case in which it is
more likely than not that no reasonable jury would have
convicted Teleguz as the jury did here. House, 547 U.S. at 538,
554. A brief overview of a case in which the Supreme Court
found the gateway innocence standard to be met is instructive
regarding what a sufficiently strong gateway innocence case
looks like and why the mixed picture here does not meet the
standard.
In House, the defendant was convicted and sentenced to
death in large part based on forensic evidence, specifically
semen found on the victim’s nightgown and underwear, and blood
stains found on the defendant’s pants. House, 547 U.S. at 540-
41. Later DNA analysis, however, showed that the semen was in
fact the victim’s husband’s, not the defendant’s, and that the
blood stains on the defendant’s pants likely resulted from the
victim’s blood spilling out of vials taken into evidence and
transported in the same container, at the same time, as the
defendant’s pants. Id. at 541-45. Further, there existed
25
evidence that the victim’s husband physically abused her, that
she had reported shortly before her death that she was afraid of
her husband and wanted to leave him, and even that her husband
had later confessed to having killed her. Id. at 548-49. While
the Supreme Court stressed that “it bears repeating that the
Schlup standard is demanding and permits review only in the
‘extraordinary,’ case,” id. at 538, it deemed House to be that
“rare case where—had the jury heard all the conflicting
testimony—it is more likely than not that no reasonable juror
viewing the record as a whole would lack reasonable doubt.” Id.
at 554. This case, while perhaps troubling, is no House.
In sum, the district court applied the correct legal
framework to the totality of the evidence before it. It made
the credibility determinations we had indicated it had the
authority to make. We must give those determinations “the
highest degree of appellate deference,” Evergreen Int’l, S.A.,
531 F.3d at 308 (quotation marks and citation omitted).
Particularly in light of those credibility determinations, we,
like the district court, “cannot conclude that more likely than
not, given the overall, newly supplemented record, no reasonable
juror would have found Teleguz guilty beyond a reasonable
doubt.” 7 Teleguz, 2014 WL 3548982, at *20 (quotation marks and
7
Teleguz seizes on the district court’s use of the word “I”
to suggest that the court failed to consider how a jury would
26
citation omitted). And because the Gateway Innocence Claim was
Teleguz’s hook for moving past procedural default, we refrain
from addressing the underlying, defaulted claims.
B.
With his second argument on appeal, Teleguz challenges the
district court’s rejection of his Martinez Claim. Teleguz
contends that the district court’s analysis was fatally flawed
by a mistaken belief that the jury had not been told that
Teleguz had been involved in the Ephrata, Pennsylvania murder.
We see no such fatal flaw.
As an initial matter, we note that the district court erred
to the extent it suggested that Teleguz had failed to preserve
the Martinez issue. See Teleguz, 2014 WL 3548982, at *22
(“Martinez was decided by the Supreme Court on March 20, 2012,
prior to oral argument in Teleguz’s appeal to the Fourth
Circuit, but was not raised there . . . .”). In footnote 12 on
pages 23 to 24 of his pre-remand opening brief, Teleguz raised
the Martinez issue and acknowledged the lack of then-extant
react to the newly supplemented evidentiary record. We reject a
myopic focus on the pronouns used but instead look to what the
district court actually did. Without doubt, the district court
held that it was not “more likely than not, given the overall,
newly supplemented record, [that] no reasonable juror would have
found Teleguz guilty beyond a reasonable doubt.” Teleguz, 2014
WL 3548982, at *20. Teleguz’s assertion that the district court
“never answered” the “essential question” of whether “reasonable
jurors . . . would still find guilt beyond a reasonable doubt,”
Petitioner’s Br. at 26, is thus plainly incorrect.
27
legal support but expressly noted the argument for preservation
purposes. We therefore move to the merits, which the district
court also addressed.
Like Schlup, Martinez is an exception that enables habeas
petitioners to obtain merits review of otherwise procedurally
defaulted claims under certain circumstances. Specifically,
Martinez claims may be reviewed only if, among other things,
“the ineffective-assistance-of-trial-counsel claim is a
substantial one,” and the cause behind the default was “no
counsel or only ineffective counsel” during the collateral
review proceedings. Fowler, 753 F.3d at 461 (quotation marks
and citations omitted).
Regarding the requirement that there be a “substantial”
claim, the Supreme Court held that a prisoner must “demonstrate
that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Martinez, 132
S. Ct. at 1318. Relatedly, to show ineffective assistance, “the
petitioner must make a ‘substantial’ showing with respect to
both counsel’s competency (first-prong Strickland) and prejudice
(second-prong Strickland).” Brian R. Means, Federal Habeas
Manual § 9B:62 (citing Clabourne v. Ryan, 745 F.3d 362, 376 (9th
Cir. 2014)).
28
As to the specific elements of the ineffective assistance
claim, a petitioner must make a substantial showing of
incompetency, i.e., “that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed . . . by
the Sixth Amendment.” DeCastro v. Branker, 642 F.3d 442, 450
(4th Cir. 2011) (quotation marks and citation omitted).
Further, the petitioner must make a substantial showing that
“counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable,” i.e., that
there was “a substantial, not just conceivable, likelihood of a
different result.” Id. (quotation marks and citations omitted).
Teleguz faults his state habeas counsel for failing to
investigate and raise an ineffective assistance of trial counsel
claim relating to the Ephrata, Pennsylvania murder allegations
not just at the guilt phase but also at the penalty phase.
According to Teleguz, “the jury was told that Teleguz was ‘at
the recreation center in this small town and that Ivan Teleguz
and two other people came in, walked up to some guy, blew him
away and told you they’ll be back for the other two.’”
Petitioner’s Br. at 59 (citing J.A. 4403).
In reality, however, the jury was not “told” that Teleguz
“blew” anyone “away,” but rather that Gilkes did not recall
having made any such statement and that he saw no such thing.
Specifically, on cross-examination, Gilkes was asked, “Do you
29
remember telling the investigators that you were at the
recreation center in this small town and that Ivan Teleguz and
two other people came in, walked up to some guy, blew him away
and told you they’ll be back for the other two?” J.A. 4403.
Gilkes responded, “No, I don’t recall it.” Id. When asked
again, “You don’t recall saying that?” Gilkes again plainly
stated “No.” Id.On redirect, Gilkes clarified: “[D]own in Ephrata one day .
. . a couple of [] Russians on Main Street were outside the
parking lot of the rec center. There was two men that got out
of the car. We figured they were both, they were both Russians
to the best of my knowledge.” J.A. 4420. Gilkes continued that
“the one walked up and said that . . . if his boys didn’t have
the money at a certain time that in a couple of days that some
of them would be killed.” Id. at 4421. Gilkes testified that
Teleguz did not make that statement but “was present during the
statement.” Id. Gilkes reported that someone was later killed,
“a week, three days to a week after that in Ephrata Street.”
Id. at 4422. But Gilkes did not state or suggest that he
witnessed that murder or knew who had committed that murder—and
he certainly did not testify, nor did any other trial witness,
that Teleguz “blew someone away” in Ephrata, Pennsylvania.
The alleged Ephrata, Pennsylvania murder resurfaced during
the prosecution’s closing argument at sentencing. The
30
prosecutor stated “you heard the background of the defendant,
how Gilkes told you about this issue in Ephrata, how they had
this situation with the Russian folks approaching and posturing
about killing someone, and someone ends up dead.” J.A. 5209.
Again, no one argued, much less presented evidence, that Teleguz
“blew someone away” outside the Ephrata, Pennsylvania recreation
center. Teleguz’s suggestion that the jury was informed that
“Teleguz was responsible for another murder” is, therefore,
inaccurate. Petitioner’s Br. at 60.
Because the jury heard evidence that at best shows that
Teleguz was present when another individual threatened to murder
someone outside the recreation center in Ephrata, Pennsylvania
and that a murder did occur about a week later, and because the
lone comment on the issue at sentencing, in the form of closing
arguments, referenced “Russian folks” and did not state that
Teleguz had murdered anyone in Ephrata, Pennsylvania, it comes
as no surprise that habeas counsel failed to make the
ineffective assistance claim that Teleguz now presses—one based
on “a misconception of the evidence.” Teleguz, 2014 WL 3548982,
at *24. 8
8 Our own characterization of the evidence in our earlier
opinion was also not as tightly tethered to the actual record as
it could have been. But the trial transcript, quoted
extensively above but not in our prior opinion, speaks for
itself.
31
Moreover, had counsel fully pursued the Ephrata,
Pennsylvania murder issue, they may well have decided to let
things lie—because evidence presented at the hearing suggested
that a murder with a connection to the Ephrata recreation center
had in fact taken place and that Teleguz may have been involved.
A Pennsylvania State Police “master trooper” who investigated
Russian organized crime in Lancaster County testified that a man
of Russian dissent named Yvegeniy Belyy was murdered in
Elizabeth Township, Pennsylvania in April 2001. J.A. 2852.
While investigating the Belyy murder, the Pennsylvania State
Police interviewed “various individuals who talked about a fight
or embarrassment at the Ephrata Rec Center or in that vicinity.”
Id. at 2855. The master trooper testified that “Ivan Teleguz
first came to light in the [Belyy] homicide investigation.” Id.
at 2854. Record evidence also suggests that Teleguz may have
been the source of the firearm for the Belyy murder (see, e.g.,
J.A. 3814)—a fact consistent with Teleguz’s having been “an
eager vendor of deadly weapons.” Teleguz, 492 F.3d at 85.
A brief overview of a case in which the Supreme Court found
prejudice is instructive as to why the record does not support
finding prejudice here. In Wiggins v. Smith, 539 U.S. 510(2003), the defendant was convicted of murder and sentenced to
death. Wiggins’s sentencing jury heard only one significant
mitigating factor-that Wiggins had no prior convictions. Id. at
32
537. But “mitigating evidence counsel failed to discover and
present in this case [was] powerful.” Id. at 535. The evidence
showed that “Wiggins experienced severe privation and abuse in
the first six years of his life while in the custody of his
alcoholic, absentee mother. He suffered physical torment,
sexual molestation, and repeated rape during his subsequent
years in foster care. [And] [t]he time Wiggins spent homeless,
along with his diminished mental capacities, further augment his
mitigation case.” Id. Given this “powerful” evidence, the
Supreme Court concluded that, “[h]ad the jury been able to place
petitioner’s excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one
juror would have struck a different balance.” Id. at 537.
Accordingly, the Supreme Court found the high prejudice bar to
have been met. Without doubt, this case is no Wiggins.
Finally, completely independent of anything having to do
with the Ephrata, Pennsylvania murder issue, the jury
recommended that Teleguz be sentenced to death based on finding
vileness beyond a reasonable doubt. Teleguz, 643 S.E.2d at 723
(“In this case, the Commonwealth presented evidence on both the
vileness and future dangerousness aggravators. The jury found
both aggravators were proven beyond a reasonable doubt.”).
Evidence supporting that finding included: Teleguz’s having
“planned the murder to avoid his responsibility of supporting
33
his child;” Teleguz’s having directed that “the murder be
committed in the apartment without regard to the well-being of
his child who would likely be present;” and Teleguz’s having
specified “the actual manner of the murder—cutting the victim’s
throat,” with physical attributes including “a deep stab wound
to Sipe’s neck which resulted in massive external and internal
bleeding, causing Sipe to drown in her own blood.” Id. at 724.
In light of the independent, additional statutory aggravator of
vileness, Teleguz’s death sentence would stand regardless of his
Martinez claim.
In sum, on the record as it exists—as opposed to how it has
been mischaracterized—we must reject Teleguz’s suggestion that
“false evidence that Teleguz was responsible for another murder
was the most powerful imaginable aggravating evidence” and thus
also his contention that there exists a “reasonable probability
that disproving that evidence would have changed the outcome.”
Petitioner’s Br. at 65 (quotation marks and citation omitted).
Instead, Teleguz has failed to “demonstrate that the claim”—
grounded in a misconception of the trial transcript—“has some
merit.” Martinez, 132 S. Ct. at 1318. And he has likewise
failed to make a substantial showing that his “counsel’s errors
were so serious as to deprive [him] of a fair trial, a trial
34
whose result is reliable.” DeCastro, 642 F.3d at 450 (quotation
marks and citation omitted). 9
III.
For these reasons, we affirm the district court’s dismissal
of Teleguz’s petition.
AFFIRMED
9 While Teleguz argues that the district court should have
allowed additional discovery and presentation on this claim, the
record is replete with evidence about the Ephrata, Pennsylvania
murder issue. Further, the “record refutes the applicant’s
factual allegations.” Schriro v. Landrigan, 550 U.S. 465, 474
(2007). We thus reject this argument.
35
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
I agree with my friends in the majority that Ivan Teleguz
has failed to support his gateway innocence claim with
sufficient evidence as required under Schlup v. Delo, 513 U.S.
298 (1995). I also agree that Teleguz preserved his ineffective
assistance of counsel claim asserted under Martinez v. Ryan, 132
S. Ct. 1309 (2012). But I disagree, respectfully, with the
conclusion that Teleguz has failed to satisfy Martinez. Because
the district court prevented Teleguz from engaging in discovery
on his Martinez claim, the record is too sparse to determine
whether his state habeas counsel was ineffective. I would
remand the case to the district court for further evidentiary
development of Teleguz’s Martinez claim. Accordingly, I concur
in part and dissent in part.
I.
In 2001, Teleguz hired Edwin Gilkes and Michael Hetrick to
kill Stephanie Sipe, Teleguz’s ex-girlfriend. In February 2006,
a jury convicted Teleguz of murder for hire. Gilkes, Hetrick,
and Aleksey Safanov, a third prosecution witness, each testified
at trial that he was approached by Teleguz and offered money to
kill Sipe. Hetrick testified that he committed the murder and
received payment soon thereafter. In addition to offering
corroborating testimony, Gilkes testified, during the guilt
36
phase of the trial, that he once saw Teleguz and another man
approach two men in a parking lot outside a recreation center in
Ephrata, Pennsylvania. Gilkes testified that the man standing
with Teleguz told the other two men that someone “would be
killed” if certain debts went unpaid. J.A. 4421. Gilkes then
testified that someone was in fact killed a few days later on
Main Street in Ephrata. It has since been established that the
Ephrata murder, as Gilkes described it, never occurred.
Although prosecutors did not use the Ephrata murder testimony
against Teleguz during the guilt phase, they used the testimony
during the penalty phase of the trial to establish Teleguz’s
future dangerousness, one of two potential aggravating factors
that might justify a death sentence.
Following trial, Teleguz exhausted claims for state habeas
relief before pursuing federal habeas relief in the United
States District Court for the Western District of Virginia. In
an amended petition for writ of habeas corpus at the district
court, Teleguz asserted, among other things, a Schlup gateway
innocence claim. He also argued that his trial counsel was
ineffective during the penalty phase because they failed to
address the prosecution’s evidence of future dangerousness——
namely, his involvement in the alleged Ephrata murder. The
district court denied Teleguz’s amended petition. Teleguz v.
Kelly, 824 F. Supp. 2d 672, 723 (W.D. Va. July 17, 2014).
37
Relevant here, the district court determined that his
ineffective assistance of trial counsel claim was procedurally
barred because he had failed to raise it during the state habeas
proceedings. Id. at 695. Teleguz appealed, and we remanded the
proceedings for further analysis of his Schlup gateway innocence
claim. Teleguz v. Pearson, 689 F.3d 322, 330 (4th Cir. 2012).
On remand at the district court, and in an effort to
resurrect his procedurally defaulted ineffective assistance of
trial counsel claim, Teleguz raised a claim under Martinez that
his state habeas counsel provided ineffective assistance because
they, too, failed to investigate the alleged Ephrata murder.
The district court concluded that, while our remand did not
encompass the Ephrata murder claim, Teleguz’s state habeas
counsel “was not so deficient as to fall below the wide range of
reasonable professional assistance,” and his ineffective
assistance of trial claim was not substantial. Teleguz v.
Davis, No. 7:10CV00254, 2014 WL 3548982, at *25 (W.D. Va. July
17, 2014). The district court denied both Teleguz’s Martinez
claim and his request for additional discovery on the issue.
Id. at *25–26.
II.
On appeal, Teleguz argues under Martinez that his state
habeas counsel was ineffective in their failure to investigate
and present evidence that the alleged Ephrata murder never
38
occurred. The majority concludes that state habeas counsel was
effective and that Teleguz cannot demonstrate prejudice as a
result of any purported error on the part of state habeas
counsel. It is here where the majority and I disagree. While
the majority concludes that Teleguz loses on a merits review of
his Martinez claim, I conclude there is insufficient evidence in
the record to make a choice either way. The contention here, at
its core, is whether Teleguz should be afforded further
discovery on his Martinez claim so that there can be a more
substantial evidentiary basis to resolve the issue.
We review a district court’s decision not to grant
discovery on a habeas claim for abuse of discretion. Stephens
v. Branker, 570 F.3d 198, 207 (4th Cir. 2009). “‘Rule 6(a) of
the Rules Governing Section 2254 Cases requires a habeas
petitioner to show good cause before he is afforded an
opportunity for discovery.’” Id. (quoting Quesinberry v.
Taylor, 162 F.3d 273, 279 (4th Cir. 1998)). A petitioner
satisfies good cause “if the petitioner makes a specific
allegation that shows reason to believe that the petitioner may
be able to demonstrate that he is entitled to relief.”
Quesinberry, 162 F.3d at 279.
Before turning to whether Teleguz has demonstrated good
cause, a description of the Martinez standard is appropriate.
One avenue for a habeas court to review a procedurally defaulted
39
claim exists where the petitioner can demonstrate both cause for
the default and prejudice as a result of the default. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991). In states like
Virginia, where claims of ineffective assistance of trial
counsel must be raised in initial post-conviction proceedings,
see Lenz v. Commonwealth, 544 S.E.2d 299, 304 (Va. 2001),
Martinez permits a petitioner to establish cause if the
petitioner either lacked state habeas counsel or, under the
standard established in Strickland v. Washington, 466 U.S. 668(1984), state habeas counsel was ineffective, Martinez, 132 S.
Ct. at 1318. A petitioner may establish prejudice if “the
underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.” Id. at 1318-19.
Strickland instructs that counsel’s performance is
deficient if it (1) falls below an objective standard of
reasonableness, and (2) the deficiencies prejudiced the defense
such that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 688, 692,
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
40
A.
The current record is insufficient to determine with
confidence whether Teleguz’s state habeas counsel’s performance
fell below an objective standard of reasonableness, and Teleguz
has at least shown good cause for more discovery. The district
court interpreted our remand order as limiting evidentiary
development to the Schlup actual innocence claim. As a result,
the district court precluded Teleguz from engaging in any
additional discovery related to his Martinez claim. See
Teleguz, 2014 WL 3548982, at *26.
At the start of the Schlup evidentiary hearing on remand,
Teleguz’s federal habeas counsel told the district court that
they intended to present evidence on the Martinez issue. The
district court responded that it was “disinclined to allow the
petitioner to expand the scope of the hearing,” but it would
withhold final judgment on the issue until the presentation of
Martinez evidence actually occurred. J.A. 2458. The district
court allowed Teleguz to examine Jennifer Givens, one of his
state habeas attorneys, in support of his Martinez claim.
Givens was the only witness who offered testimony directly on
the Martinez issue during the evidentiary hearing.
Givens readily admitted that neither she nor any member of
her state habeas counsel team investigated the claim that
Teleguz had been involved in a murder in Ephrata. She provided
41
no excuse for her error, noting that, “we clearly missed the
issue” and that she would be “hard pressed to come up with a
worse one than this because evidence that my client would have
been involved in another alleged murder that was presented at
the guilt and the penalty phase of a capital murder trial was
unbelievably prejudicial.” J.A. 2952.
Givens’s revelation is significant in light of evidence
that Teleguz’s connection with an earlier Pennsylvania murder
may not be as strong as originally conveyed. A Pennsylvania
State Police law enforcement officer testified during the
evidentiary hearing that a victim was murdered a short distance
from Ephrata in Elizabeth Township, Pennsylvania, and that the
murder was connected to purported organized criminal activity at
the Ephrata recreational center. But the officer also testified
that several people, not just Teleguz, were connected to
activity at the Ephrata recreational center. Although Teleguz
first came to law enforcement’s attention during the Elizabeth
Township murder investigation, the officer established that
another individual was convicted for the murder. Teleguz was
not present at the scene of the murder, and he was neither
charged nor arrested in connection with the crime.
While Strickland does not impose upon counsel an obligation
to “pursue an investigation that would be fruitless, much less
one that might be harmful to the defense,” see Harrington v.
42
Richter, 562 U.S. 86, 108 (2011), counsel must exercise
“reasonable professional judgment” and “a particular decision
not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference
to counsel’s judgments,” Strickland, 466 U.S. at 691. A single
error, if “sufficiently egregious and prejudicial” can support
an ineffective assistance claim, but the error must be measured
against counsel’s overall performance. Richter, 562 U.S. at
111. The record, as it currently stands, demonstrates only a
single error on the part of state habeas counsel. Yet, in my
view, given the testimony from Givens and the law enforcement
officer, the error is significant enough to warrant further
factual development.
B.
At this juncture, the record more clearly shows that
Teleguz was prejudiced by the failure of counsel to investigate
the alleged Ephrata murder. The district court assumed for the
sake of argument that the performance of state habeas counsel
was deficient, and concluded that, under prong two of
Strickland, the deficiencies of counsel were not so prejudicial
as to create a reasonable likelihood that the outcome of the
case would have been different. The district court reasoned
that any investigation by trial or state habeas counsel into the
Ephrata murder claim would have concluded that Gilkes’s
43
testimony was likely based upon a rumor that Teleguz was
complicit in the Elizabeth Township murder. Teleguz, 2014 WL
3548982, at *25. The Warden adds that the sentencing outcome of
the state trial could not have been different absent counsel’s
error because the jury sentenced Teleguz to death on two
independent aggravating factors——vileness and future
dangerousness. Absent the introduction of false evidence
relating to future dangerousness, the Warden argues, the
vileness factor would still stand. The majority relies on such
reasoning, in part. I believe this approach overlooks important
countervailing interests in a sober assessment of prejudice
under the circumstances presented here.
An error of a constitutional magnitude occurs where a jury
considers “as aggravation properly admitted evidence that should
not have weighed in favor of the death penalty” and “where the
jury could not have given aggravating weight to the same facts
and circumstances under the rubric of some other, valid
sentencing factor.” Brown v. Sanders, 546 U.S. 212, 221 (2005)
(emphasis omitted). Here, the evidence of the alleged Ephrata
murder went only to future dangerousness, not vileness.
Vileness requires the jury to find that the defendant’s “conduct
in committing the offense for which he stands was outrageously
or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind or an aggravated battery to the
44
victim.” Va. Code. Ann. § 19.2-264.2 (West 2015). Thus,
evidence of an alleged prior crime would not be relevant for
vileness, the only other aggravating sentencing factor the jury
considered during the penalty phase, yet the jury may have
improperly considered evidence of that alleged prior crime in
weighing the propriety of the death penalty.
Essential to this conclusion is the idea that two
independent aggravating factors equal more than just multiple
legs to stand on if one breaks. The stakes here are high and
the jury was tasked with a nuanced moral judgment; prejudice is
inherent when an invalid aggravating factor is considered in
combination with a valid one. However “vile” and therefore
deserving of capital punishment the murder of Stephanie Sipe was
under controlling Virginia law, the jury knew that the actual
killer got a pass from the Commonwealth. Trial counsel’s
introduction of evidence of a murder in Ephrata, the
circumstances of which are now known to be less straightforward
than was suggested at trial, could very well have “skew[ed]”
Teleguz’s sentence toward the ultimate one. Brown, 546 U.S. at
221. For the prosecution, who portrayed Teleguz as a man who
“solves problems” with murder, J.A. 5209, the implication was
not just that Teleguz had previously been involved in taking a
life, but also that he associated with unsavory characters who
45
also take lives. The Ephrata murder reference during the
penalty phase most certainly had its desired effect.
Furthermore, trial counsel’s error was significant.
Teleguz’s own counsel was the first to alert the jury that
Teleguz may have been involved in a prior murder, even though
the district court barred the prosecution from referencing the
alleged murder during the guilt phase. The door thus opened,
the prosecution then seized on the evidence during the penalty
phase.
III.
Given the “‘heightened need for fairness in the
administration of death,’” Teleguz should be provided an
opportunity to develop fully the claims upon which he may be
afforded habeas relief. Teleguz, 689 F.3d at 331 (quoting
Callins v. Collins, 510 U.S. 1141, 1149 (1994)). I would find
the district court’s decision to preclude evidentiary
development of Teleguz’s Martinez claim an abuse of discretion,
and I would remand for further proceedings.
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