Professional Documents
Culture Documents
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. (7:10cv00254JPJ)
Argued:
Decided:
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
had
engage
failed
habeas
to
petition,
innocence claim.
Before
us
several-day
sufficient
as
it
inquiry
related
into
to
Teleguzs
his
gateway
the
evidentiary
by
particularly
now
determinations
supported
in
using
the
fruit
of
hearing,
the
record.
that
the
appropriate
The
remand.
district
legal
district
After
court
standard
courts
denial
made
and
of
2001,
Stephanie
Sipe
was
found
murdered
in
the
suspect,
Safanov, 1
the
imprisoned
investigation
in
had
Massachusetts
stalled
on
until
federal
Aleksey
charges,
He said that a
J.A. 2828.
to
the
Harrisonburg
Police
Department.
Ultimately,
the
Michael
Hetrick,
testified
at
who
trial
had
that
actually
Teleguz
committed
had
paid
him
the
killing,
two
thousand
at
birthday
to
Sipes
party
where
Teleguz
hired
Hetrick
to
and
waited
outside
for
Hetrick
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
326.
In February 2006, a Virginia jury recommended that Teleguz
be sentenced to death upon finding two statutory aggravating
factors: vileness and future dangerousness.
Teleguz
Teleguz proceeded
the
Supreme
Court
of
Virginia
dismissed.
Teleguz
v.
then
turned
to
the
federal
courts,
filing
court
while
others
had
been
procedurally
defaulted.
new,
reliable
evidence
that
he
was
actually
innocent
Second, he
presented
evidence
to
establish
that
murder
in
Ephrata,
most
importantly,
Teleguz
presented
affidavits
Third,
in
which
J.A. 3546.
and
Safanov,
who
Kyrgyzstan,
had
left
ostensibly
the
United
submitted
an
States
for
affidavit.
to
falsely
be
Sipes
during
Safanov,
murder
Teleguzs
Safanov
with
asserted
Teleguz
trial
that
and
because
he
agreed
both
the
had
to
never
testify
prosecutor
was
entitled
to
an
evidentiary
hearing
to
demonstrate
miscarriage of justice.
vacated
and
remanded
for
rigorous
Gateway
This Court
Innocence
Claim
remand
in
district
court,
Teleguz
changed
his
tune,
In light of th[is
evidentiary
Accordingly,
it
hearing
held
was
necessary.
several-day
Id.
evidentiary
at
hearing
*3.
in
November 2013.
At the hearing, Gilkes appeared but refused to testify.
And Safanov did not appear, even by deposition or phone.
In
Gilkes
and
Safanov
accused
threatening
them
into
Safanovs
accusation
that
Nelson
had
told
Safanov
he
could
not conclude that more likely than not, given the overall, newly
supplemented
Teleguz
record,
guilty
no
beyond
reasonable
a
juror
reasonable
would
doubt.
have
As
found
such,
the
Teleguz
17,
2014)
(quotation
marks
and
citation
omitted).
The
failing
to
pursue
(Martinez Claim).
the
This
Ephrata,
appeal
Pennsylvania
ensued.
We
murder
now
issue
review
the
Sharpe v. Bell,
593
F.3d
372,
378-79
(4th
Cir.
2010).
If
state
court
28
U.S.C. 2254(d).
Generally, a federal court may not consider claims that a
petitioner
failed
to
raise
at
Exceptions
demonstrates
cause
asserted error.
time
and
in
the
manner
exist,
for
the
the
however,
default
and
when
the
prejudice
prisoner
from
the
Id.
See
Schlup
new
v.
Delo,
513
U.S.
298
(1995).
In
such
cases,
Another such exception exists for ineffective-assistanceof-trial-counsel claims where (1) the ineffective-assistanceof-trial-counsel claim is a substantial one; (2) the cause
for
default
ineffective
consist[s]
counsel
of
during
there
the
being
state
no
counsel
collateral
or
only
review
initial
review
proceeding
in
respect
to
the
ineffective-
(4th
Cir.
2014),
cert.
135
S.
Ct.
1530
(2015)
are
defaulted
met,
the
merits
of
an
otherwise
ineffective
of
mechanisms.
otherwise
merits.
these
If
exceptions
the
defaulted
are,
requisite
in
showing
substantive
essence,
claims
is
to
made,
be
procedural
they
reached
allow
on
the
Stated
validity
Hardy,
of
628
his
F.3d
procedurally
314,
318
defaulted
(7th
omitted).
10
Cir.
claims.
2010)
Coleman
(quotation
v.
marks
courts
rejection
of
his
Gateway
Innocence
Claim.
With both
contentions, we disagree.
When a petitioner raises a gateway innocence claim, it
must be supported by new reliable evidence.
at 324 (emphasis added).
under
rules
of
admissibility
that
would
govern
at
32728).
In cases with recantations, evidentiary hearings may be
necessary
to
assess
whether
[they]
are
credible.
not
presented
evaluated
evidence
the
reliability
[that]
may
of
indeed
11
a
call
petitioners
into
newly
question
the
Id. at 331-
[the]
petitioner
guilty
beyond
reasonable
doubt.
at 538.
The Supreme Court has underscored that the Schlup standard
is demanding and permits merits review only in extraordinary
cases.
See
The
petitioners innocence.
that
more
likely
than
not,
in
light
of
new
and
reliable
at 329.
1.
We
focus
first
on
the
Gilkes
and
Safanov
recantations,
recanted
several
key
aspects
of
his
trial
testimony,
in
his
post-trial
affidavits,
Gilkes
recanted,
among other things, his claim that Teleguz was present at David
Everharts birthday party, where Hetrick contended that Teleguz
had hired him to kill Sipe.
J.A. 3548.
did not, [he] would have been the one on death row today, not
Teleguz.
J.A. 3546.
J.A. 3484.
Gilkes
Teleguz
was
responsible
for
Ms.
Sipes
murder.
For
murder
Teleguzs
Teleguz
Safanov
trial
and
cooperated,
a
he
with
later
claimed
Teleguz
only
because
United
States
would
be
and
that
agreed
both
the
marshal
eligible
for
never
to
testify
discussed
prosecutor
told
perks
14
he
him
that
including
during
pursuing
if
a
he
visa
3555.
someone
Similarly,
claiming
to
be
the
recanting
Safanov
affidavit
himself
stated,
executed
among
by
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 Ivans 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
hearing.
Safanov
nor
testified
at
the
evidentiary
Gilkes
contrast,
misconductGarst,
the
Whitfield,
and
15
witnesses
accused
Nelsontestified
at
of
the
evidentiary hearing.
visited
him
in
Garsts
response
prison
at
with
the
cookies
she
evidentiary
had
for
him.
not
bake
hearing:
baked
do
J.A. 2893.
she
flatly
local
state
denied
any
such
constitutional
officer;
representation.
J.A. 2892.
instructed
Safanov
either
allegations,
I
noting
Im
make
such
cannot
or
Gilkes
to
lieeither
to
secure
J.A. 2838.
about
Safanovs
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
of
the
police
Sipe
the
tip
murder
after
information
he
relayed
that
to
the
rekindled
the
the
claims
of
prosecutorial
misconduct,
at
the
Gilkess
and
Safanovs
16
accusations
of
coaching,
intimidation,
and
misconduct.
Teleguzs
counsel
had
the
guilt
at
the
behest
of
the
prosecution.
But
the
Meanwhile,
the
government
witnesses
events
and
specifically
discredited
finding
the
Gilkess
recanting
and
Safanovs
affidavits
versions,
unreliable.
and
indeed,
determinations.
might
need
to,
make
credibility
question
trial.
the
credibility
of
the
witnesses
presented
at
credibility
assessments.).
The
17
district
court
heard
our
of
determinations
appellate
Dredging
are
deference.
Co.,
531
deserving
Evergreen
F.3d
302,
of
the
Intl,
308
(4th
highest
S.A.
Cir.
v.
2008)
see
no
basis
for
substituting
our
own
credibility
claimed that they lied at trial because they were instructed and
intimidated into doing so by the prosecution.
recantations
Meanwhile,
the
or
be
subject
implicated
to
prosecution
cross-examination.
witnessesGarst,
Whitfield,
Teleguzs
and
Nelsondid
counsel,
and
testify,
were
deemed
were
cross-examined
credible.
Under
by
these
Again, we see no
Gilkes
from
Lancaster,
Pennsylvania
to
Harrisonburg,
Virginia, where Sipe lived, showed them her apartment, and then
left them to establish an alibi.
apartment
and
slit
Sipes
throat
as
Teleguz
had
directed.
district
[Hetricks]
account
court
demeanor
detailed,
and
because
court
he
cooperating
testimony
with
opportunity
to
observe[]
first-hand
and
found
his
testimony,
and
his
trial
did
not
secured
or
the
consistent
highly creditable.
district
had
wholly
better
because
of
discount
deal
the
with
risks
Hetricks
the
The
testimony
government
associated
with
for
later
themselves
unreliable.
deserving
Evergreen
does
not
Id. at *16.
of
the
Intl,
render
statements
necessarily
highest
S.A.,
their
531
degree
F.3d
at
of
308
appellate
(quotation
deference,
marks
and
We
or
the
district
courts
looking
out
for
Gilkess,
counsel
under
circumstances
such
as
these.
And
In
Under
those circumstances, the district court found that Wolfe had met
the
Schlup
claims.
standard
and
Id. at 280-81.
that
he
had
presented
meritorious
Court held
that
the
district
court
abused
its
discretion
in
Id. at 289.
3.
Teleguz
also
contends
that
he
presented
substantial
Petitioners
undermines
the
Br.
at
credibility
41.
of
According
Hetricks
to
Teleguz,
story.
In
this
reality,
Teleguz
hearing.
deposed
de
bene
esse
before
the
evidentiary
J.A. 3231.
She
J.A. 3204.
Edwin
J.A. 3237. 5
The female
J.A. 3204.
Claim
purportedly
Pennsylvania
murder
occurred.
But
alluded
this
establishes
to
evidence,
during
even
that
the
Teleguzs
more
than
Ephrata,
trial
never
the
other
were
both,
knowledge.
they
J.A. 4420.
were
both
Russians
to
the
We figured
best
of
my
Id. at 4421.
Id.
in Harrisonburg, Virginia.
related
evidence
thus
cannot
support
determination
that
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
what
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
fact the victims husbands, not the defendants, and that the
blood stains on the defendants pants likely resulted from the
victims blood spilling out of vials taken into evidence and
transported in the same container, at the same time, as the
defendants
pants.
Id.
at
541-45.
25
Further,
there
existed
Id. at 548-49.
While
is
demanding
and
permits
review
only
in
the
case
wherehad
the
jury
heard
all
the
conflicting
In
sum,
the
district
court
applied
the
correct
Id.
credibility
authority
to
determinations
make.
We
must
we
had
give
indicated
those
legal
It made
it
had
determinations
the
the
F.3d
at
308
(quotation
marks
and
citation
omitted).
would
doubt. 7
have
found
Teleguz
guilty
beyond
reasonable
citation omitted).
courts
rejection
of
his
Martinez
Claim.
Teleguz
mistaken
belief
that
the
jury
had
not
been
told
that
Martinez
issue.
See
Teleguz,
2014
WL
3548982,
at
*22
to
oral
argument
in
Teleguzs
appeal
to
the
Fourth
In footnote 12 on
Martinez
issue
and
acknowledged
the
lack
of
then-extant
claims
under
certain
circumstances.
Specifically,
ineffective-assistance-of-trial-counsel
substantial
one,
counsel
only
or
and
the
cause
ineffective
review proceedings.
behind
counsel
claim
is
the
default
was
no
during
the
collateral
the
requirement
that
there
be
substantial
the
underlying
ineffective-assistance-of-trial-counsel
Martinez, 132
Strickland).
Brian
R.
Means,
Federal
Habeas
Manual 9B:62 (citing Clabourne v. Ryan, 745 F.3d 362, 376 (9th
Cir. 2014)).
28
petitioner
must
make
substantial
showing
of
Cir.
2011)
(quotation
marks
and
citation
omitted).
faults
his
state
habeas
counsel
for
failing
to
and
told
you
theyll
be
back
for
the
other
two.
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 theyll be back for the other two?
J.A. 4403.
When asked
again,
You
dont
stated No.
recall
saying
that?
Id.
Gilkes
again
plainly
Id.
J.A. 4420.
the one walked up and said that . . . if his boys didnt have
the money at a certain time that in a couple of days that some
of them would be killed.
Id. at 4421.
Teleguz did not make that statement but was present during the
statement.
Id.
4422.
But
Gilkes
did
not
state
or
suggest
that
he
prosecutions
closing
argument
30
at
sentencing.
The
J.A. 5209.
Teleguz
was
inaccurate.
responsible
for
another
murder
is,
therefore,
no
surprise
that
habeas
counsel
failed
to
make
the
at *24. 8
31
Moreover,
had
counsel
fully
pursued
the
Ephrata,
Russian
Elizabeth
While
dissent
Township,
investigating
named
Yvegeniy
Pennsylvania
the
Belyy
in
Belyy
April
murder,
the
was
2001.
murdered
in
J.A.
2852.
Pennsylvania
State
Id.
been the source of the firearm for the Belyy murder (see, e.g.,
J.A.
3814)a
fact
consistent
with
Teleguzs
having
been
an
prejudice
here.
In
Wiggins
v.
Smith,
539
U.S.
510
Id. at
537.
Id. at 535.
The evidence
absentee
mother.
molestation,
and
He
repeated
suffered
rape
physical
during
his
torment,
subsequent
case.
Id.
Given
this
powerful
evidence,
the
Supreme Court concluded that, [h]ad the jury been able to place
petitioners excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one
juror
would
have
struck
different
balance.
Id.
at
537.
the
Ephrata,
Pennsylvania
murder
issue,
the
jury
aggravators
Evidence
were
supporting
proven
that
beyond
finding
reasonable
included:
doubt.).
Teleguzs
having
his
child;
Teleguzs
having
directed
that
the
murder
be
Id. at 724.
34
failed
to
support
his
gateway
innocence
claim
with
Because
his
state
habeas
counsel
was
ineffective.
would
Accordingly, I concur
In February 2006,
Gilkes, Hetrick,
payment
corroborating
soon
thereafter.
testimony,
Gilkes
36
In
addition
testified,
during
to
offering
the
guilt
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.
with
other
Teleguz
told
the
two
men
that
someone
J.A. 4421.
would
be
Gilkes then
murder,
as
Gilkes
described
it,
never
occurred.
before
pursuing
federal
habeas
relief
in
the
United
In
during
penalty
address
the
prosecutions
namely,
his
involvement
in
phase
evidence
the
because
of
alleged
future
they
failed
to
dangerousness
Ephrata
murder.
The
Teleguz v.
Kelly,
17,
824
F.
Supp.
2d
672,
723
37
(W.D.
Va.
July
2014).
Relevant
here,
the
district
court
determined
that
his
Id. at 695.
at
the
district
court,
and
in
an
effort
to
district
encompass
court
the
concluded
Ephrata
that,
murder
while
claim,
our
remand
Teleguzs
did
state
not
habeas
professional
of
trial
assistance,
claim
was
not
and
his
substantial.
ineffective
Teleguz
v.
present
evidence
that
the
38
alleged
Ephrata
murder
never
occurred.
of
counsel.
any
purported
error
on
the
part
of
state
habeas
While
core,
is
whether
Teleguz
should
be
afforded
further
review
district
courts
decision
not
to
Rules
Governing
petitioner
to
show
opportunity
for
Taylor,
F.3d
162
satisfies
Section
good
good
2254
cause
discovery.
273,
cause
279
if
before
Id.
(4th
the
Cases
is
(quoting
Cir.
habeas
afforded
an
Quesinberry
v.
1998)).
petitioner
Stephens
Rule 6(a) of
requires
he
grant
makes
petitioner
a
specific
able
to
demonstrate
that
he
is
entitled
to
relief.
turning
to
whether
Teleguz
has
demonstrated
good
claim exists where the petitioner can demonstrate both cause for
the default and prejudice as a result of the default.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Virginia,
where
claims
of
ineffective
See
In states like
assistance
of
trial
Lenz
Martinez
v.
Commonwealth,
permits
petitioner
either
544
S.E.2d
petitioner
lacked
state
to
299,
304
establish
habeas
(Va.
cause
counsel
or,
2001),
if
the
under
the
at
1318.
underlying
petitioner
may
establish
ineffective-assistance-of-trial-counsel
substantial
one,
which
is
to
say
that
prejudice
if
instructs
it
(1)
falls
that
below
the
claim
the
is
prisoner
must
Id. at 1318-19.
counsels
an
if
performance
objective
standard
is
of
that
there
is
reasonable
probability
that,
but
for
40
Id. at 694.
A.
The
current
record
is
insufficient
to
determine
with
interpreted
our
remand
order
as
The district
limiting
district
additional
court
precluded
discovery
related
Teleguz
to
his
from
evidentiary
As a result,
engaging
Martinez
in
claim.
any
See
The
J.A. 2458.
The district
habeas
attorneys,
in
support
of
his
Martinez
claim.
state
habeas
counsel
team
investigated
the
claim
that
She provided
revelation
J.A. 2952.
is
significant
in
light
of
evidence
Police
law
enforcement
officer
A Pennsylvania
testified
during
the
several
people,
not
just
were
connected
to
Although Teleguz
murder
investigation,
the
officer
established
that
Teleguz was
Richter,
562
reasonable
U.S.
86,
professional
108
(2011),
judgment
and
counsel
a
must
particular
exercise
decision
A single
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
deficient,
and
concluded
that,
under
prong
two
of
murder
claim
would
have
43
concluded
that
Gilkess
testimony
was
likely
based
upon
rumor
that
Teleguz
was
Teleguz, 2014 WL
the state trial could not have been different absent counsels
error
because
independent
the
sentenced
aggravating
dangerousness.
relating
jury
to
Absent
future
countervailing
to
death
factorsvileness
the
introduction
dangerousness,
Teleguz
the
of
on
two
and
future
false
evidence
Warden
argues,
the
interests
in
sober
assessment
of
prejudice
circumstances
under
the
rubric
of
some
other,
valid
sentencing factor.
(emphasis omitted).
murder
went
only
to
future
dangerousness,
not
vileness.
wantonly
torture,
vile,
depravity
horrible
or
of
or
mind
44
inhuman
an
in
that
aggravated
it
battery
involved
to
the
victim.
Va.
Code.
Ann.
19.2-264.2
(West
2015).
Thus,
during
the
penalty
phase,
yet
the
jury
may
have
to
this
conclusion
is
the
idea
that
two
with
valid
one.
However
vile
and
therefore
got
introduction
pass
of
from
evidence
the
of
Commonwealth.
a
murder
in
Trial
counsels
Ephrata,
the
45
also
take
lives.
The
Ephrata
murder
reference
during
the
own
trial
counsel
counsels
was
the
error
first
to
was
alert
significant.
the
jury
that
the
administration
heightened
of
death,
need
for
Teleguz
fairness
should
be
in
provided
the
an
habeas
relief.
Teleguz,
689
F.3d
at
district
courts
decision
to
preclude
331
(quoting
I would find
evidentiary
46