Petition for Writ of Certiorari — James Saylor, Petitioner v. Taggart Boyd, Interim Warden

CASE No.

In The Supreme Court of the United States

JAMES SAYLOR,

Petitioner,

v.

TAGGART BOYD,

Respondent.

On Petition for Writ of Certiorari

to the

United States Court of Appeals

for the Eighth Circuit

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Brandon Sample

Brandon Sample PLC

P.O. BOX 250

Rutland, Vermont 05702

Tel: 802-444-4357

Fax: 802-779-9590

Email: Brandon@brandonsample.com

Counsel for Petitioner

I. TABLE OF

CONTENTS

APPENDIX A ............................................... 1A

(December 23, 2019, Order Denying 28

U.S.C. § 2254 Petition)

APPENDIX B ............................................. 12A

(June 2, 2020, Judgment Denying Certificate

of Appealability)

APPENDIX C ............................................. 14A

(August 24, 2020, Order Denying Panel

Rehearing)

1A

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

JAMES M. SAYLOR,

Petitioner,

v.

8:17CV442

JEFF WOOTEN,

Respondent.

MEMORANDUM AND ORDER

This matter is before the Court on petitioner

James M. Saylor’s (“Saylor”) Second Amended

Petition under 28 U.S.C. § 2254 for a Writ of

Habeas Corpus by a Person in State Custody

(Filing No. 40) and respondent Jeff Wooten’s

(“Wooten”) Motion for Summary Judgment (Filing

No. 46). Saylor is an inmate at the Lincoln

Correctional Center (“LCC”) within the Nebraska

Department of Correctional Services. Saylor has

identified Wooten as the Interim Warden of LCC.

For the reasons stated below, Wooten’s motion is

granted, and Saylor’s petition is denied.

2A

I. BACKGROUND1

On April 27, 1984, Saylor’s grandmother was

found dead in her home. A neighbor saw a young,

white male leave the house early that morning,

hop the fence, and run away. As the police began

to investigate, two of Saylor’s friends told the

police that before the death, Saylor told them he

had thought about killing his grandmother to get

an expected inheritance. With some coaxing from

the police, the friends agreed to wear a wire and

meet with Saylor at his mother’s home. After a few

beers,

Saylor

made

some

incriminating

statements, including that he had hired someone

to kill his grandmother.

Saylor and his alleged accomplice, Michael Sapp

(“Sapp”), were arrested and charged with firstdegree murder. Saylor moved to suppress his

statements to his friends to no avail. Before trial,

Sapp pled guilty to lesser charges. Saylor did not

reach a full plea agreement with the prosecutor

but did agree to waive his right to a jury trial and

proceed before a judge on stipulated facts in

_______________

1Unless otherwise noted, the background is drawn

from the parties’ submissions and the Nebraska

Supreme Court’s opinions in State v. Saylor, 392

N.W.2d 789, 791 (Neb. 1986) (direct appeal), and

State v. Saylor, 883 N.W.2d 334, 340 (Neb. 2016)

(post-conviction appeal).

3A

exchange for the state reducing the charge against

him to second-degree murder. The agreement also

allowed Saylor to appeal the denial of his motion

to suppress.

At trial, the judge received the recordings of

Saylor’s incriminating statements in evidence over

Saylor’s objection. The parties also stipulated that

David Kutsch, M.D. (“Dr. Kutsch”), the pathologist

who performed the autopsy, would testify the

cause of death was respiratory arrest, “most

probably” caused by smothering but possibly the

result of natural causes. Saylor was convicted and

sentenced to ten years to life.

Saylor appealed, arguing his incriminating

statements should have been suppressed. The

Nebraska Supreme Court rejected Saylor’s

arguments and affirmed his conviction on August

29, 1986. Saylor’s subsequent petition for a writ of

certiorari was denied. See Saylor v. Nebraska, 481

U.S. 1038 (1987).

On August 22, 2012, Saylor filed a pro se Verified

Motion for Postconviction Relief (Filing No. 45-3)

pursuant to Neb. Rev. Stat. § 29-3001 et seq. With

the help of counsel, he amended his motion

February 3, 2013 (Filing No. 40-2). In his amended

motion, Saylor alleged ineffective assistance of

counsel at trial and on appeal, prosecutorial

misconduct, and prejudicial conduct by the trial

judge. The district court held an evidentiary

4A

hearing that lasted several days. During the

hearing, the district court heard testimony from

Saylor, one of his attorneys,2 the prosecutor,

several of the investigators, and others, including

Michael Baden, M.D. (“Dr. Baden”) and Werner

Spitz, M.D. (“Dr. Spitz”), two forensic pathologists

Saylor hired to review the medical findings in the

case. Both opined that Saylor’s grandmother likely

died of natural causes.

One testified that neither smothering nor a

chronic lung condition could be eliminated as the

cause of death, but that lung disease was more

likely given her medical history and the

surrounding circumstances. The other agreed with

Dr. Kutch’s 1984 deposition testimony that

whether death resulted from natural causes or

smothering was “indeterminate.” Drs. Baden and

Spitz also questioned some of Dr. Kutch’s other

methods and findings. The district court also took

evidence that Saylor attempted to solicit the

murders of his former friends to prevent the use of

his recorded statements to them.

The district court denied relief, finding that any

evidence of prejudice was overwhelmed by Saylor’s

admission that he hired someone to kill his

_______________

2The other had died.

5A

grandmother and the evidence that he tried to

solicit the murder of two witnesses against him.

The district court also noted Sapp “was waiting in

the wings to testify against [Saylor].”

Saylor again appealed to the Nebraska Supreme

Court, raising more than eleven assignments of

error. See Saylor, 883 N.W.2d at 340. The Supreme

Court again affirmed, concluding, among other

things, that “Saylor’s counsel was not ineffective

by agreeing to a stipulated trial in an attempt to

reduce the first degree murder charge” and that

Saylor’s assigned errors relating to prejudice

lacked merit. Id.at 348-50. On October 2, 2017, the

United States Supreme Court denied Saylor’s

petition for a writ of certiorari. See Saylor v.

Nebraska, 583 U.S. ___, 138 S. Ct. 167, reh’g

denied, 583 U.S. ___, 138 S. Ct. 571 (2017).

On November 15, 2017, Saylor filed a pro se

Petition for a Writ of Habeas Corpus in this Court.

After a couple of amendments and changes of

counsel, Saylor filed the present Second Amended

Petition. On April 18, 2019, Saylor moved (Filing

No. 43) for an order directing Wooten to show

cause why his petition should not be granted. After

conducting a preliminary review, the magistrate

judge assigned to this case issued an Order (Filing

No. 44) granting Saylor’s motion and ordering

Wooten to “answer or otherwise respond to

Saylor’s Second Amended Petition.”

6A

On September 27, 2019, Wooten moved for

summary judgment. Saylor opposes that motion.

II. DISCUSSION

A. Propriety of a Motion for Summary

Judgment

In opposing Wooten’s motion, Saylor first argues

“a motion for summary judgment is not

[procedurally]

proper

in

a

§

2254

proceeding.”Saylor further contends that because

the motion is not a proper answer, the Court

should deem the allegations in Saylor’s petition as

admitted. Neither point is convincing. The

magistrate judge ordered Wooten to “answer or

otherwise respond” to the petition. He did that by

filing a motion for summary judgment. Rule 12 of

the Rules Governing § 2254 Cases in the United

States District Courts provides that the Federal

Rules of Civil Procedure “may be applied to a” §

2254 proceeding “to the extent that they are not

inconsistent with any statutory provisions or these

rules.” And the Eighth Circuit and this Court

routinely consider motions for summary judgment

pursuant to Federal Rule of Civil Procedure 56 in

appropriate habeas cases. See, e.g., Risdal v.

Mathes, 340 F.3d 508, 510 (8th Cir. 2003); Haynes

v. Hansen, No. 8:19CV87, 2019 WL 2582559, at *1

(D. Neb. June 24, 2019). The court therefore rejects

Saylor’s assertion that a motion for summary

judgment is categorically improper. What’s more,

Saylor has not shown that a motion for summary

7A

judgment is somehow improper or unworkable

under either the habeas rules or the particular

facts of this case. To the contrary, the Court finds

the record in this case is sufficient to allow the

Court to properly evaluate the pertinent issues the

parties

raise—Wooten’s

statute-of-limitation

argument and Saylor’s gateway actual-innocence

claim.

B. Actual-Innocence Exception

Saylor’s petition is governed by the Antiterrorism

and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. 104–132, 110 Stat. 1214

(1996). The thrust of Wooten’s motion is that

Saylor’s petition is “wildly” outside AEDPA’s oneyear statute of limitation for such petitions. See 28

U.S.C. § 2244(d)(1). Saylor acknowledges his

petition is “otherwise untimely” but asserts an

exception applies because he can make a gateway

actual-innocence claim as recognized by the

Supreme Court in McQuiggin v. Perkins, 569 U.S.

383, 386 (2013). In McQuiggin, the Supreme Court

held “that actual innocence, if proved, serves as a

gateway through which a petitioner may pass,”

despite “expiration of the statute of limitations.”

Id. But “tenable actual-innocence pleas are rare,”

id., and an “[u]nexplained delay in presenting new

evidence” can weaken the petitioner’s claim, id. at

399.To succeed, Saylor must persuade this

“[C]ourt, that, in light of the new evidence, no

juror, acting reasonably, would have voted to find

him guilty beyond a reasonable doubt.” Id.at 386

8A

(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

In other words, Saylor “must show that it is more

likely than not that no reasonable juror would

have convicted him in the light of the new

evidence.” Schlup, 513 U.S. at 327; accord McCoy

v. Norris, 125 F.3d 1186, 1191 (8th Cir. 1997)

(applying the same standard to a case tried to a

judge). Saylor does not meet this demanding

standard. As he did in state court, Saylor cites as

grounds for post-conviction relief the “new”

opinion testimony from Drs. Baden and Spitz that

Saylor’s grandmother more likely died of natural

causes than from smothering. Agreeing with the

state post-conviction court that Dr. Kutch’s

stipulation testimony was “weak and inconsistent”

and asserting “the case against [him] was always

circumstantial,” Saylor contends “all [he] needed

was one juror to accept Dr. Baden and/or Spitz’s

proposed testimony.” As Saylor sees it, “had the

testimony of Drs. Baden and Spitz been available

at the time of [his] trial, it is more likely than not

that at least one juror would have treated Dr.

Baden and Spitz’s testimony as reasonable doubt

of Saylor’s guilt.” Saylor misunderstands the

standard for an actual-innocence claim. To prove

his claim, Saylor need not merely prove that one

juror might have had a reasonable doubt based on

his new evidence, he must persuade the Court

“that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty

beyond a reasonable doubt.” McQuiggin, 569 U.S.

at 386 (emphasis added) (quoting Schlup, 513 U.S.

298, 329 (1995)). He has not done that. The Court

9A

is simply not persuaded that Saylor’s proffered

medical evidence—which does not definitively rule

out smothering as the cause of death—was so

strong or decisive as to make it unreasonable for a

judge conducting a trial on stipulated facts to rely

on Saylor’s incriminating statements and the

mountain of other compelling evidence against

him and find him guilty of second-degree murder.

See McCoy, 125 F.3d at 1191-92 (concluding the

petitioner could not “make his way through the

actual innocence gateway” because even if “new,”

his “evidence would not have affected [the

judge’s]credibility determination, or his [guilty]

verdict”). It is not unreasonable to think Saylor’s

conviction had far more to do with his own

startling admissions and conduct and the other

corroborating evidence of murder than with any

indeterminacy in the medical evidence. See

id.Because Saylor’s “new” evidence is insufficient

under the circumstances of this case “to show that,

had it been presented at trial, no reasonable

[factfinder] would have convicted [him],” his

petition is denied.3 McQuiggin, 569 U.S. at 401.

_______________

3 Saylor also makes a brief legal argument based

on the corpus delecti rule as described in State v.

Plastow, 873 N.W.2d 222, 226 (S.D. 2015). His

reliance on Plastowis misplaced. Although Saylor

cites Plastow as establishing Nebraska law at the

time of his conviction, the case was actually

decided by the South Dakota Supreme Court on

10A

C. Certificate of Appealability

“[A] state prisoner seeking a writ of habeas corpus

has no absolute entitlement to appeal a district

court’s denial of his petition.” Miller-El v. Cockrell,

537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253).

Before he can take an appeal, the petitioner must

have a certificate of appealability (“COA”). Id.at

336; Fed. R. App. P. 22(b). “When the district court

denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the

prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states

a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable

whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S.

_______________

3 now-discarded principles of South Dakota law.

Id. at 229-31. At any rate, “‘actual innocence’

means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S.

614, 623 (1998); see also Embrey v. Hershberger,

131 F.3d 739, 741 (8th Cir. 1997) (en banc) (“[I]n

noncapital cases the concept of actual innocence is

‘easy to grasp’ because ‘it simply means the person

didn’t commit the crime.’” (quoting United States

v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993))).

11A

473, 484 (2000). Having carefully reviewed the

record in this case, the Court concludes Saylor has

not made that showing. No COA will issue. Based

on the foregoing, IT IS ORDERED:

1. Respondent Jeff Wooten’s Motion for Summary

Judgment (Filing No. 46) is granted.

2. Petitioner James M. Saylor’s Second Amended

Petition under 28 U.S.C. § 2254 for a Writ of

Habeas Corpus by a Person in State Custody

(Filing No. 40) is denied.

3. This case is dismissed with prejudice.

4. No certificate of appealability shall issue.

5. A separate judgment shall be entered in this

case. Dated this 23rd day of December 2019.

BY THE COURT:

Robert F. Rossiter, Jr.

United States District Judge

12A

APPENDIX B

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

20-1133

James Saylor

Plaintiff – Appellant

v.

Taggart Boyd

Defendant – Appellee

Appeal from U.S. District Court for the District of

Nebraska - Omaha(8:17-cv-00442-RFR)

JUDGMENT

Before COLLOTON, KELLY, and STRAS, Circuit

Judges. This appeal comes before the court on

appellant's application for a certificate of

appealability. The court has carefully reviewed

the original file of the district court, and the

application for a certificate of appealability is

denied. The appeal is dismissed.

June 02, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

13A

/s/ Michael E. Gans

14A

APPENDIX C

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

20-1133

James Saylor

Plaintiff – Appellant

v.

Taggart Boyd

Defendant – Appellee

Appeal from U.S. District Court for the District of

Nebraska - Omaha(8:17-cv-00442-RFR)

ORDER

The petition for rehearing by the panel is denied.

August 24, 2020

/s/ Michael E. Gans