Petition for Writ of Certiorari — Scott Crow, Director, Oklahoma Department of Corrections, Petitioner v. Karl Fontenot

NO. 21-_____

In the

Supreme Court of the United States

SCOTT CROW, DIRECTOR,

Petitioner,

v.

KARL FONTENOT,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN M. O’CONNOR

ATTORNEY GENERAL

CAROLINE E.J. HUNT

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4410

CAROLINE.HUNT@OAG.OK.GOV

JANUARY 3, 2022

COUNSEL FOR PETITIONER

i

QUESTION PRESENTED

In 1988, an Oklahoma jury convicted Karl

Fontenot in the abduction and killing of Denice

Haraway. The chief evidence against Fontenot was

his own confession—a confession the Oklahoma Court

of Criminal Appeals found, in affirming Fontenot’s

convictions, was corroborated in nine critical respects.

In 2016, nearly two decades after his statute of

limitations under the Antiterrorism and Effective

Death Penalty Act had expired, Fontenot filed a federal

habeas corpus petition. The State moved to dismiss as

untimely, but the district court denied the State’s

motion, finding both that Fontenot could pass through

the actual-innocence gateway and that every one of

Fontenot’s substantive claims entitled him to relief,

without allowing a merits response by the State.

The Tenth Circuit affirmed. Over a dissent, the

majority held Fontenot had made a credible showing

of actual innocence based on “new,” “reliable” evidence.

While acknowledging a circuit split on the issue, the

majority concluded that Fontenot’s evidence of alleged

innocence, despite the fact that it was largely available

at the time of trial, was nevertheless “new” within the

meaning of this Court’s actual-innocence precedents.

The question presented is whether “new” evidence,

as referred to in Schlup v. Delo, 513 U.S. 298 (1995),

and McQuiggin v. Perkins, 569 U.S. 383 (2013), means

evidence that was not available at the time of trial or,

under the broad reading adopted below, encompasses

any evidence, including evidence known by the defendant and/or available with due diligence, not presented

at trial.

ii

LIST OF PROCEEDINGS

Pontotoc County District Court

Case No. CRF-1984-143

State of Oklahoma v. Fontenot

Judgments and Sentences entered:

September 25, 1985

__________________________

Oklahoma Court of Criminal Appeals

Case No. F-1985-769

Fontenot v. State of Oklahoma

Judgment entered: August 11, 1987

_____________________

Hughes County District Court

Case No. CRF-1988-43

State of Oklahoma v. Fontenot

Judgments and Sentences entered: June 14, 1988

_____________________

Oklahoma Court of Criminal Appeals

Case No. F-1988-571

Fontenot v. State of Oklahoma

Judgment entered: June 8, 1994

_____________________

Oklahoma Court of Criminal Appeals

Case No. PC-2015-76

Fontenot v. State of Oklahoma

Judgment entered: October 29, 2015

iii

_____________________

United States District Court for the

Eastern District of Oklahoma

Case No. 16-069-JHP-KEW

Fontenot v. Allbaugh

Judgment entered: August 21, 2019

______________________

United States Court of Appeals for the Tenth Circuit

Case No. 19-7045

Fontenot v. Crow

Judgment entered: July 13, 2021

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ..................................... vii

OPINIONS AND JUDGMENTS BELOW ................. 1

STATEMENT OF JURISDICTION ........................... 2

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 3

I.

The Abduction, Rape, and Murder of

Denice Haraway .............................................. 3

II. Trials and Direct Appeal Proceedings ............. 5

III. State Post-Conviction Proceedings .................. 9

IV. Federal Habeas Corpus Proceedings ............... 9

REASONS FOR GRANTING THE PETITION ....... 15

I.

THE DECISION BELOW CONFLICTS WITH CASES

OF THIS COURT AND OTHER COURTS AND

EXACERBATES A CIRCUIT SPLIT ....................... 16

II. THE DECISION BELOW DRAMATICALLY EXPANDS

THE “NARROW” ACTUAL-INNOCENCE GATEWAY

ENVISIONED BY THIS COURT............................ 22

III. THE DECISION BELOW, IF ALLOWED TO

STAND, WILL ONLY CONTRIBUTE TO THE PROLIFERATION OF ACTUAL-INNOCENCE GATEWAY

CLAIMS ............................................................ 29

CONCLUSION.......................................................... 32

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

FEDERAL OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Tenth Circuit (July 13, 2021) ............................. 1a

Order of the United States Court of Appeals

for the Tenth Circuit Granting Motion to Stay

the Circuit Court Mandate

(October 21, 2021) .......................................... 215a

Opinion and Order of the United States District

Court for the Eastern District of Oklahoma

(August 21, 2019) .................................................. 217a

Order of the United States Court of Appeals

for the Tenth Circuit Granting Motion to Stay

the District Court Mandate

(November 4, 2019) ........................................ 494a

Opinion and Order of the United States District

Court for the Eastern District of Oklahoma

(September 30, 2019) ............................................ 496a

FEDERAL REHEARING ORDER

Order of the United States Court of Appeals for

the Tenth Circuit Denying Petition for

Rehearing (October 6, 2021) ................................. 500a

vi

TABLE OF CONTENTS – Continued

Page

STATE OF OKLAHOMA

OPINIONS AND ORDERS

Court of Criminal Appeals, State of Oklahoma,

Order Affirming Denial of Post-Conviction

Relief (October 29, 2015) ...................................... 502a

Order of the District Court of Pontotoc County,

State of Oklahoma, Post Conviction Findings

(December 31, 2014) ............................................. 508a

Opinion of the Court of Criminal Appeals,

State of Oklahoma (June 8, 1994) ........................ 512a

Opinion of the Court of Criminal Appeals,

State of Oklahoma (August 11, 1987) .................. 548a

STATE OF OKLAHOMA

REHEARING ORDER

Order Denying Petition for Rehearing and

Directing Issuance of Mandate

(September 30, 1994) ............................................ 552a

vii

TABLE OF AUTHORITIES

CASES

TABLE OF AUTHORITIES

Page

Birch v. Crow,

No. 19-CV-0276-TCK-FHM, 2020 WL

437553 (N.D. Okla. Jan. 28, 2020)..................... 30

Brady v. Maryland,

373 U.S. 83 (1963) ....................................... 12, 27

Cardwell v. Allbaugh,

No. 18-CV-0199-CVE-FHM, 2018 WL

6075480 (N.D. Okla. Nov. 20, 2018) ................. 30

Cleveland v. Bradshaw,

693 F.3d 626 (6th Cir. 2012).......................... 12, 19

Colbert v. Crow,

No. 19-CV-0108-CVE-JFJ, 2019 WL

4740236 (N.D. Okla. Sept. 27, 2019) ................ 30

Decker v. Braggs,

No. CIV-18-443-C, 2018 WL 4346707,

(W.D. Okla. Aug. 21, 2018), report and

recommendation adopted, No. CIV-18443-C, 2018 WL 4344467 (W.D. Okla.

Sept. 11, 2018)................................................... 30

Duncan v. Walker,

533 U.S. 167 (2001) ........................................... 31

Fontenot v. Allbaugh,

402 F. Supp. 3d 1110 (E.D. Okla. 2019) ............. 1

Fontenot v. Crow,

4 F.4th 982 (10th Cir 2021)................................. 1

Fontenot v. State,

742 P.2d 31 (Okla. Crim. App. 1987) .................. 1

viii

TABLE OF AUTHORITIES – Continued

Page

Fontenot v. State,

881 P.2d 69 (Okla. Crim. App. 1994) .................. 1

Fontenot v. State,

No. PC-2015-76

(Okla. Crim. App. Oct. 29, 2015) .......................... 2

Gomez v. Jaimet,

350 F.3d 673 (7th Cir. 2003) ............................. 19

Griffin v. Johnson,

350 F.3d 956 (9th Cir. 2003) ....................... 19, 20

Herrera v. Collins,

506 U.S. 390 (1993) ...................................... 26, 28

Hubbard v. Pinchak,

378 F.3d 333 (3d Cir. 2004) ................... 19, 22, 23

Kidd v. Norman,

651 F.3d 947 (8th Cir. 2011) ............................. 19

Macklin v. Dowling,

822 F. App’x 720 (10th Cir. 2020) ........................ 30

Malone v. Crow,

No. 20-CV-0227-GKF-JFJ, 2021 WL

957264 (N.D. Okla. Feb. 5, 2021)...................... 30

Martin v. Cortez Johnson,

No. 21-896 (U.S.) ................................................ 31

McCurley v. Crow,

No. 18-CV-0429-JHP-JFJ, 2019 WL

3237992 (N.D. Okla. July 18, 2019)..................... 30

McQuiggin v. Perkins,

569 U.S. 383 (2013) ..................................... passim

ix

TABLE OF AUTHORITIES – Continued

Page

Moody v. Dowling,

No. CIV-20-00696-JD, 2021 WL 2446738

(W.D. Okla. June 15, 2021) ................................ 30

Murray v. Carrier,

477 U.S. 478 (1986) ..................................... 16, 17

Proctor v. Whitten,

No. CIV-19-837-PRW, 2021 WL 597881

(W.D. Okla. Feb. 16, 2021) .................................. 30

Rivas v. Fischer,

687 F.3d 514 (2d Cir. 2012) .................................. 19

Rountree v. Balicki,

640 F.3d 530 (3d Cir. 2011) ............................... 28

Sawyer v. Whitley,

505 U.S. 333 (1992) ............................................ 16

Schlup v. Delo,

513 U.S. 298 (1995) ................................... passim

Serrano v. Williams,

383 F.3d 1181 (10th Cir. 2004) ........................... 9

Sharp v. Harris,

No. 19-1105 (U.S.), cert. denied,

141 S.Ct. 124 (2020) .......................................... 31

Sharp v. Smith,

No. 19-1106 (U.S.), cert. denied,

141 S.Ct. 186 (2020) ........................................... 31

Simpson v. Bear,

No. 16-CV-0153-CVE-FHM, 2017 WL

78506 (N.D. Okla. Jan. 9, 2017)........................ 30

Souter v. Jones,

395 F.3d 577 (6th Cir. 2005) ................................ 19

x

TABLE OF AUTHORITIES – Continued

Page

Teague v. Lane,

489 U.S. 288 (1989) ........................................... 31

Thompkins v. Pfister,

698 F.3d 976 (7th Cir. 2012) ............................. 28

Turnbough v. Bryant,

No. 17-CV-172-GKF-FHM, 2017 WL

5491005 (N.D. Okla. Nov. 15, 2017) .................... 30

United States v. LeRoy,

687 F.2d 610 (2d Cir. 1982) ................................. 28

United States v. O’Hara,

301 F.3d 563 (7th Cir. 2002) ............................. 28

Wright v. Quarterman,

470 F.3d 581 (5th Cir. 2006) ............................... 19

STATUTES

28 U.S.C. § 1254(1) ..................................................... 2

28 U.S.C. § 2244(d)(1) ............................................. 2, 9

28 U.S.C. § 2254(e)(1) ............................... 3, 10, 28, 29

Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA) ................... 9, 10, 11, 13, 16, 31

JUDICIAL RULES

Sup. Ct. R. 12.7 ........................................................... 6

1

In the Supreme Court of the United States

SCOTT CROW, DIRECTOR,

Petitioner,

V.

KARL FONTENOT,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS AND JUDGMENTS BELOW

The opinion of the court of appeals is published

as Fontenot v. Crow, 4 F.4th 982 (10th Cir 2021), and

is included in the Appendix at App.1a-214a. The order

denying panel and en banc rehearing is unpublished

and included below at App.500a-501a. The opinion of

the federal district court is published as Fontenot v.

Allbaugh, 402 F. Supp. 3d 1110 (E.D. Okla. 2019), and

is included below at App.217a-493a. The State court’s

opinion on direct appeal following retrial is published

as Fontenot v. State, 881 P.2d 69 (Okla. Crim. App.

1994), and is included below at App.512a-547a. The

State court’s opinion on direct appeal from the original

conviction is published as Fontenot v. State, 742 P.2d

31 (Okla. Crim. App. 1987), and is included below at

2

App.548a-551a. The State court’s opinion affirming the

denial of post-conviction relief is unpublished, may be

cited as Fontenot v. State, No. PC-2015-76 (Okla. Crim.

App. Oct. 29, 2015) (unpublished), and is included

below at App.502a-507a.

STATEMENT OF JURISDICTION

The judgment of the Tenth Circuit was entered

on July 13, 2021. App.1a. The court of appeals denied

the State’s petition for rehearing and rehearing en

banc on October 6, 2021. App.500a. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2244(d)(1)

A 1-year period of limitations shall apply to an

application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run from

the latest of—

(A) the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in

violation of the constitution or laws of the

United States is removed, if the applicant

3

was prevented from filing by such State

action;

(C) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court, if the right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of

the claim or claims presented could have been

discovered through the exercise of due diligence.

28 U.S.C. § 2254(e)(1)

In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.

STATEMENT OF THE CASE

I.

The Abduction, Rape, and Murder of Denice

Haraway

On April 28, 1984, Respondent Karl Fontenot

and his co-defendant Tommy Ward kidnapped 24-yearold Denice Haraway from her workplace, McAnally’s

convenience store in Ada, Oklahoma, and thereafter

raped and murdered her. The evening of the kidnapping, two men—one of whom was positively identified

4

as Ward—played pool at J.P.’s convenience store in

Ada, just across the road and a quarter mile from

McAnally’s, from about 7:00 p.m. until about 8:30 p.m.

App.549a. Although witnesses could not positively

identify Fontenot as Ward’s companion at J.P.’s, he

“was said to resemble the man with Ward.” App.550a.

The two men left J.P.’s at around 8:30 p.m. “Shortly

thereafter, Tommy Ward was seen leaving with Haraway from [the nearby McAnally’s].” App.549a-550a.

By October of 1984, authorities had identified

Ward as a suspect and, when questioned, Ward confessed, “inculpat[ing] Fontenot, an individual named

Odell Titsworth, and to a slighter degree, himself.”

App.549a. As a result, both Ward and Fontenot were

arrested. App.549a. On October 19, 1984, following his

arrest, Fontenot confessed to the crimes in a videotaped

statement. App.518a-519a. Fontenot’s statement was

“substantially in agreement with Ward’s except that

it more clearly inculpated Ward.” App.549a. Thus, for

purposes of examining Fontenot’s actual-innocence

claim, it is notable that his guilt of this crime has been

shown by not one, but two confessions—confessions

Oklahoma’s highest criminal appellate court has found

to be consistent.1

The men stated that Mrs. Haraway was robbed

of approximately $150, abducted, and taken to the

grounds behind a power plant in Ada where she was

raped. App.549a. Fontenot said “she was then taken

to an abandoned house behind the plant where

Titsworth stabbed her to death. She was then burned

1 While Ward’s confession inculpating Fontenot was excluded at

Fontenot’s second trial, assessment of an actual-innocence claim

“is not bound by the rules of admissibility that would govern at

trial.” Schlup, 513 U.S. at 327.

5

along with the house.” App.549a. However, “[w]hen

Haraway’s remains were found[, subsequent to the

confessions], there was no evidence of charring or of

stab wounds, and there was a single bullet wound to

the skull.” App.549a. In any event, it is clear that both

Fontenot and Ward, while admitting their involvement

in the kidnapping and murder, manufactured details

in an attempt to lessen their own culpability. Chiefly,

“[i]n each [of] Ward’s and Fontenot’s statements, the

instigator and ringleader in the criminal acts was said

to be Titsworth. However, Titsworth was eliminated as

a suspect within a few days of his arrest because of

clear proof the police had that he had not been an

accomplice.” App.549a.

II. Trials and Direct Appeal Proceedings

In 1985, Fontenot and Ward were tried together

in Pontotoc County District Court Case No. CRF-1984183. Both co-defendants were convicted of first degree

murder and sentenced to death. Thereafter, the Oklahoma Court of Criminal Appeals (“OCCA”) reversed

Fontenot’s conviction, holding that the erroneous

admission of co-defendant Ward’s statement was not

harmless. App.550a-551a.

In the meantime, in January 1986, almost twentyone months after Mrs. Haraway disappeared, her

remains were discovered in “hilly, rough brushland”

in an area “30 miles east of Ada.” App.23a.

In 1988, Fontenot was retried in Hughes County

District Court Case No. CRF-1988-43, after a change

of venue. He was again convicted of first degree murder

and sentenced to death. He was also again convicted

of robbery with a dangerous weapon, and kidnapping,

and was sentenced to ten and twenty years on those

counts, respectively. App.513a.

6

On June 8, 1994, the OCCA affirmed Fontenot’s

convictions and non-capital sentences, while remanding

his death sentence for resentencing due to instructional

error. App.513a, 545a. In that direct appeal, Fontenot

challenged the voluntariness of his confession, the

corroboration of his confession, the sufficiency of the

evidence, and the effectiveness of his counsel. The

OCCA found that Fontenot’s confession to murder was

voluntary and corroborated in nine separate ways.

First, the OCCA found it significant that Fontenot

made two extrajudicial, post-crime statements in addition to confessing to the police.2, 3 He told a friend,

Gordon Calhoun, that he knew facts about the Haraway abduction—specifically the perpetrator’s identity.

2 While the OCCA focused on admissions which Fontenot made

to people other than the police, and the OCCA was specifically

examining testimony from Fontenot’s second trial, it is worth

noting for purposes of his actual innocence claim that he made

other very incriminating admissions in the presence of law

enforcement after his confession (P/H Tr. V 1012-1015). At preliminary hearing, Detective Dennis Smith testified that sometime

during a court appearance in November 1984, following his arrest,

Fontenot made a statement, not in response to questioning, that

he was guilty of “robbery, rape, kidnapping and abducting.”

(P/H Tr. V 1014). When Detective Smith was asked what he

understood Fontenot to mean by the term “abducting,” Detective

Smith replied, “I took it to mean that abducting to him meant

having sex with a dead person.” (P/H Tr. V 1014). Thus, in addition

to Fontenot’s confession, the record is replete with instances

where he made incriminating admissions both to law enforcement

and lay witnesses which are inconsistent with his present claim

of actual innocence.

3 Citations to the designated record on appeal to the Tenth Circuit

will be referred to as (ROA, Vol. ___). The trial transcript will

be referred to as (Tr. [vol.] ___) and the preliminary hearing

transcript will be referred to as (P/H Tr. [vol.] ___). These

records are available below. See Sup. Ct. R. 12.7.

7

And while he was awaiting trial in the county jail, a

fellow inmate, Leonard Martin, overheard him saying,

“I knew we’d get caught.” App.523a-524a.

Second, consistent with Fontenot’s account of the

abduction, the OCCA found that three witnesses, David

Timmons, Linny Timmons, and Gene Whelchel, “saw

Mrs. [Haraway] leaving the convenience store with a

man on the day she disappeared. They saw this man

take her to an old, gray primered Chevy pick-up, which

Fontenot had described. They saw her enter from the

passenger side, with the man following—just as Fontenot had described.” App.524a.

Third, an insurance agent, Wayne Gridner, testified he insured a gray primered Chevy for its owner,

Ward’s brother (Joel Ward). A witness who knew both

co-defendants, J.T. McConnell, testified they were

friends and saw them riding around together in the

Chevy pickup. App.524a-525a.

Fourth, one witness, Jim Moyer, who entered

McAnally’s just before the abduction testified that he

saw two men generally matching Fontenot’s and Ward’s

descriptions inside the store. The two men were driving

an old, gray primered pickup. One of them acted as if

he wanted the witness to leave. App.525a.

Fifth, another witness, Karen Wise, who worked

just a quarter mile down the road at another convenience store testified about having seen two men

matching Ward’s and Fontenot’s descriptions in her

store earlier on the evening of the abduction. She described the truck they drove as red and gray primered.

They were watching her and she felt uncomfortable.

They left around 8:30 or 9:00 p.m. and headed towards

McAnally’s. App.525a.

8

Sixth, the manager of McAnally’s, Monroe

Atkinson, testified that $167 was taken from the store.

Fontenot stated in his confession that they had taken

about $150 during the robbery. App.525a.

Seventh, the blouse Mrs. Haraway wore on the

evening of her abduction buttoned up the front and

had lace around the collar and cuffs. Fontenot said in

his confession that she had worn a blouse with ruffles

around the sleeves and elastic in the sleeves. App.525a.

Eighth, the shoes found with Mrs. Haraway’s

remains were soft-soled, canvas shoes. Mrs. Haraway’s

husband characterized these shoes as “tennis” shoes.

However, Fontenot gave a more accurate description

of the shoes, specifically describing them as “soft-soled”

shoes and stating they were not tennis shoes. The

OCCA found it significant that “[d]uring oral argument

. . . [Fontenot’s] appellate counsel stated that information about Mrs. Haraway’s shoes had not been made

public prior to his confession.” App.525a-526a.

Ninth, and most generally, there was considerable

testimony describing Mrs. Haraway’s life: her somewhat

recent marriage to Steve Haraway; her eager anticipation of a teaching degree; her overall happiness and

contentment; and her dedication to her job responsibilities. This corroborated Fontenot’s statement that

Mrs. Haraway did not willingly leave McAnally’s but

was abducted. App.526a.

The resentencing trial ordered by the appellate

court never took place because, on September 18, 1995,

Fontenot entered into a negotiated settlement in which

he waived his right to jury re-sentencing in exchange

for the prosecutor’s recommendation of a sentence of

life imprisonment without parole. App.47a.

9

III. State Post-Conviction Proceedings

Sixteen years later, on July 24, 2013, Fontenot

filed an Application for Post-Conviction Relief in Pontotoc County, followed by an Amended Brief in Support

of Application for Post-Conviction Relief. App.48a. The

State answered Fontenot’s post-conviction application

on September 17, 2013. App.509a. On December 31,

2014, Fontenot’s post-conviction application was denied

by the state district court. App.508a-511a.

Fontenot appealed the denial of post-conviction

relief to the OCCA, in OCCA Case No. PC-2015-76.

App.502a. On October 29, 2015, the OCCA entered

an Order Affirming Denial of Post-Conviction Relief,

agreeing with the state district court that all of Fontenot’s post-conviction claims were barred by laches,

as he could have raised the claims years earlier. App.

502a-507a.

IV. Federal Habeas Corpus Proceedings

Because Fontenot’s conviction became final prior

to the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), his statute of

limitations to file a petition for writ of habeas corpus

expired on the one-year anniversary of that statute,

April 25, 1997. 28 U.S.C. § 2244(d)(1); see Serrano v.

Williams, 383 F.3d 1181, 1183 (10th Cir. 2004).

On February 24, 2016, almost nineteen years after

the expiration of the statute of limitations, Fontenot

filed his petition for writ of habeas corpus in the District

Court for the Eastern District of Oklahoma. App.53a.

As a result of ex parte discovery orders, Fontenot was

subsequently allowed to amend his habeas petition

twice, ultimately filing his operative second amended

habeas petition on March 15, 2019. App.56a. The State

moved to dismiss on grounds that the habeas petition

10

was time-barred under the AEDPA and, alternatively,

because a number of its claims were either unexhausted

or procedurally barred based on the independent and

adequate bar of laches applied by the OCCA. App.59a.

On August 21, 2019, the federal district court

denied the State’s motion to dismiss, finding Fontenot

made a sufficient showing of actual innocence under

Schlup v. Delo, and McQuiggin v. Perkins, to overcome

his untimely filing. App.217a-493a. Notably, in so concluding, the federal district court did not mention, and

certainly did not find to be rebutted, the OCCA’s “nine

points of corroboration” findings with regard to Fontenot’s confession. This omission is significant given

the statutorily mandated presumption of correctness

that should have attended these findings, see 28 U.S.C.

§ 2254(e)(1) (“[A] determination of a factual issue made

by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”), and the practical reality that a confession is

powerful evidence against actual innocence. Compounding this error, the federal district court then—contrary

to well-settled practice throughout Oklahoma’s federal

courts—proceeded to consideration of Fontenot’s constitutional grounds for relief without calling for a merits

response by the State. App.208a-209a (Eid, J., dissenting) (“The district court abused its discretion by failing

to ‘follow[] the traditional procedure of allowing

Respondent to file a merits response after denying a

procedural motion to dismiss.’ Aplt. Br. at 46. Indeed,

Oklahoma district courts routinely allow habeas

respondents such as the State in this case to file

answers after denying their pre-answer motions to

dismiss.”). Next, considering Fontenot’s claims of error

without the benefit of a response in opposition, the

11

federal district court unsurprisingly found merit with

each and every one of Fontenot’s claims. The court

granted a conditional writ, noting that a writ of

habeas corpus would issue “unless within one hundred

twenty (120) days of the entry of this Order the State

grants Respondent a new trial or, in the alternative,

orders his permanent release from custody.” App.493a.4

The State’s appeal to the Tenth Circuit challenged

the myriad ways in which the district court showed

apparent favoritism to Fontenot and disregarded both

AEDPA and common practice in its proceedings, as it

would be expected to do when considering any other

federal habeas corpus petition brought by any other

state inmate. Despite this clear showing that habeas

corpus relief was granted based upon a wholly deficient fact-finding process, the Tenth Circuit majority,

over one well-reasoned dissent, affirmed the district

court’s finding that Fontenot presented a claim of

actual innocence sufficient to overcome the untimeliness and procedural bars, in particular laches, that

would have otherwise precluded review of his habeas

claims. App.2a. Without reaching Fontenot’s other

claims, the majority agreed with the district court that

4 The federal district court resisted the State’s timely and proper

efforts to obtain a stay of its Opinion and Judgment, pending

appellate review. It denied both a stay of Fontenot’s release as

well as a stay of the 120-day period for re-trial which it had

imposed. By Order of November 4, 2019, however, the Tenth

Circuit Court of Appeals stayed the Judgment to the extent it

ordered that a re-trial must take place within 120 days. On

December 19, 2019, Fontenot was released from the custody of

the Department of Corrections, pending the outcome of appellate proceedings in this case. Following its affirmance of the

grant of habeas relief, the Tenth Circuit Court of Appeals

granted the State’s unopposed motion for stay pending the

filing of the instant Petition for Writ of Certiorari.

12

he was entitled to habeas relief based on a violation

of Brady v. Maryland, 373 U.S. 83 (1963). App.2a.

In relevant part, the majority rejected the State’s

threshold argument against Fontenot’s actual-innocence

claim. Specifically, the State asserted that much of

Fontenot’s proffered evidence of alleged innocence was

not “new” within the meaning of Schlup because it

had been available to the defense since the 1980s and,

thus, at the time of Fontenot’s trials. App.98a. The

majority correctly recognized that, pursuant to Schlup,

“[t]o be credible, a claim of actual innocence requires

a petitioner to present ‘new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that

was not presented at trial.’” App.91a (quoting Schlup,

513 U.S. at 324). The majority noted that Schlup

“did not precisely define what it meant by ‘new reliable evidence that was not presented at trial,’”

App.91a (quoting Schlup, 513 U.S. at 324) (alteration

adopted), and “[a]s a result, ‘there is a circuit split

about whether the new evidence required under

Schlup includes only newly discovered evidence that

was not available at the time of trial, or broadly

encompasses all evidence that was not presented to

the fact-finder during the trial, i.e., newly presented

evidence.’” App.91a (quoting Cleveland v. Bradshaw,

693 F.3d at 633 (6th Cir. 2012)) (internal quotation

marks omitted). Recognizing that “[t]his case require[d]

[it] to pick a side,” the majority “adopt[ed] the ‘newly

presented’ view of Schlup evidence over the ‘newly

discovered through diligence’ view,” and therefore

rejected the State’s position that any evidence not

presented at trial was not “new” if it was available at

the time of trial. App.93a.

13

The majority then proceeded to consider the “six

categories of new evidence in support of [Fontenot’s]

actual innocence gateway assertion,” “contrasting the

evidence put on at the 1988 new trial with that which

is newly presented” and ultimately finding that four

categories of evidence were particularly compelling and

weighty. App.98a. The majority recognized that Perkins

required consideration of Fontenot’s lack of diligence

and conceded that he “waited two decades. . . to first

bring his claims in state court, which cuts against

allowing the innocence gateway to open.” App.142a.

However, the majority determined that the eleventhhour nature of Fontenot’s evidence was not fatal in

light of the alleged overall strength of his evidence and

weakness of the State’s case against him. App.143a.

In sum, the majority held that the district court was

correct to conclude that, in light of all of the evidence,

it was more likely than not that no reasonable juror

viewing the record as a whole would lack reasonable

doubt. App.143a.

Judge Eid dissented, disagreeing in pertinent

part that Fontenot had presented a compelling case

of actual innocence sufficient to overcome the AEDPA

time-bar. She observed that, while the majority acknowledged this Court’s principles limiting actualinnocence claims, it “fail[ed] to apply them in practice.”

App.203a. “Instead of viewing the relevant evidence

as a reasonable juror would, the majority views it in

the light most favorable to Fontenot.” App.203a. The

majority further overemphasized allegedly new evidence that was actually “cumulative” to that presented

at trial, and “repeatedly dr[ew] inferences in support

of Fontenot’s innocence without considering whether

a reasonable juror would draw the opposite inference.”

App.204a. Judge Eid also reasoned that, contrary to

14

Schlup’s suggestion that “a petitioner must present

new evidence that is consequential,” Fontenot and the

majority had, “[i]nstead of pointing to some paramount piece of consequential new evidence, . . . relie[d]

on many small pieces—each with a problem of its

own.” App.205a-206a (citing Schlup, 513 U.S. at 324).

While perhaps “the majority [found] the case against

Fontenot to be so weak and insignificant that the

slightest new piece of evidence—no matter how peripheral, cumulative, or remote in time—would have

changed the outcome,” the majority improperly “fail[ed]

to give sufficient weight to the fact that Fontenot

confessed.” App.206a.

The Tenth Circuit denied panel and en banc rehearing. App.500a-501a. Judge Eid would have granted

panel rehearing. App.500a.

15

REASONS FOR GRANTING THE PETITION

Although this case is factually intense, it presents

a compelling and appropriate case for certiorari review

because the majority’s error in considering Fontenot’s

evidence of alleged innocence is, at bottom, actually

quite simple and apparent. In short, the majority

improperly found Fontenot had opened the actualinnocence gateway based on evidence that was not

actually “new” within the meaning of Schlup v. Delo,

and McQuiggin v. Perkins. Certiorari review is warranted for three reasons.

First, the majority’s definition of what constitutes

“new,” and for that matter “reliable,” evidence pursuant

to Schlup and Perkins both misunderstands those

decisions and conflicts with decisions of other federal

appellate courts, thereby deepening a circuit split.

Second, the majority’s definition dramatically expands

the extraordinarily narrow gateway envisioned by

this Court in Schlup and Perkins, as exemplified by

its determination that Fontenot’s presentation of old,

cumulative, and tangential evidence—including evidence either known by the defense or available to it

with due diligence at the time of trial—was sufficient to

show actual innocence. Third, this expanded definition

will further strain the taxed and limited resources of

federal district courts, which are already frequently

faced with adjudicating claims of actual innocence when

dismissing time-barred habeas petitions.

Respectfully, this Court should grant certiorari

review.

16

I.

THE DECISION BELOW CONFLICTS WITH CASES OF

THIS COURT AND OTHER COURTS AND EXACERBATES A CIRCUIT SPLIT.

The Court should grant review because the

majority’s dramatic expansion of the definition of

“new” evidence under the meaning of Schlup and

Perkins conflicts both with those decisions and with

cases from other circuits, exacerbating a split on this

issue.

In Perkins, 569 U.S. at 390-94, a sharply divided

5-4 decision, this Court held that a credible showing

of “actual innocence” may open a gateway for review

of a habeas petition that is time-barred under AEDPA.

To understand the confusion generated among lower

courts by Perkins, and the flood of litigation it has

produced for lower federal courts considering the

dismissal of time-barred habeas petitions, it is necessary to review this Court’s path to that decision.

Perkins’s predecessor was Schlup, itself also a 5-4

decision. In Schlup, this Court held that a habeas

petitioner seeking to overcome a procedural bar

through a showing of actual innocence need only meet

the Carrier5 standard, in contrast to the “more stringent” Sawyer6 standard. Schlup, 513 U.S. at 326-27.

Thus, a petitioner “must show that it is more likely

than not” as per Carrier, as opposed to “by clear and

convincing evidence” as articulated in Sawyer, “that

no reasonable juror would have convicted him in the

light of. . . new evidence.” Id. at 323, 329.

Schlup did not define what constitutes “new”

evidence. But this Court did state—in response to

5 Murray v. Carrier, 477 U.S. 478 (1986).

6 Sawyer v. Whitley, 505 U.S. 333 (1992).

17

concerns raised by the dissenters that its standard was

overly generous—that, “[t]o be credible, . . . [a] petitioner [must] support his allegations of constitutional error

with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence—that was not presented

at trial.” Id. at 324. This Court observed that “such

evidence is obviously unavailable in the vast majority

of cases,” so such claims of actual innocence would

be “rarely successful,” with most capable of “summar[y]

reject[ion].” Id.

In dissent, then-Chief Justice Rehnquist lamented

“the watered down and confusing version of Carrier

which [was] served up by the Court,” accurately predicting that it would “create confusion in the lower

courts.” Schlup, 513 U.S. at 334, 339 (Rehnquist,

C.J., dissenting). “[I]n light of the dissenting opinions,”

which included a second dissenting opinion authored

by Justice Scalia, Justice O’Connor wrote separately

to explain her understanding of what the majority

had, and had not, decided. Schlup, 513 U.S. at 332

(O’Connor, J., concurring). Importantly, the very first

thing Justice O’Connor clarified is that the Court

“[held] that . . . a petitioner who cannot demonstrate

cause and prejudice ‘must show that it is more likely

than not that no reasonable juror would have convicted

him’ in light of newly discovered evidence of innocence.”

Id. (emphasis added).

In Perkins, as indicated above, this Court expanded

Schlup to time-barred habeas petitions. This Court

“caution[ed], however, that tenable actual-innocence

gateway pleas are rare: ‘[A] petitioner does not meet

the threshold requirement unless he persuades the

district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find

18

him guilty beyond a reasonable doubt.’” Perkins, 569

U.S. at 386 (quoting Schlup, 513 U.S. at 329). Furthermore, while due diligence is not a threshold requirement, “the timing of the petition is a factor bearing

on the reliability of the evidence purporting to show

actual innocence.” Id. at 386-87, 399 (quotation marks

omitted).

The dissenting opinion, authored by Justice Scalia,

pointed out that Perkins made the unprecedented move

of applying the judicially created actual-innocence

exception, beyond simply to “judge-made, prudential

barriers to habeas relief,” to “a categorical statutory

bar to relief.” Perkins, 569 U.S. at 402 (Scalia, J.,

dissenting). In any event, be that as it may, the

dissenters again predicted the floodgates that would

open: “From now on, each time an untimely petitioner

claims innocence—and how many prisoners asking to

be let out of jail do not?—the district court will be

obligated to expend limited judicial resources wading

into the murky merits of the petitioner’s innocence

claim.” Id. at 411. At least in Oklahoma’s experience,

this has proved to be true, as shown infra, Part III.

Thus, given the relatively light standard applied

by Schlup/Perkins, if the standard is to have any

teeth at all, and vindicate this Court’s promise that

it applies only in rare cases, then such limiting effect

must come through that which this Court left largely

undefined—what constitutes “new,” “reliable” evidence.

Given the lack of clarity from this Court, confusion

has abounded in the lower courts on this matter, as

the dissenters feared, resulting in a circuit split. As

the court below recognized, this split has centered on

whether “new” evidence means “newly discovered” or

“newly presented.” App.91a-92a.

19

More specifically, does Schlup require “newly discovered evidence that was not available at the time of

trial, or [does it] broadly encompass[] all evidence that

was not presented to the fact-finder during trial, i.e.,

newly presented evidence”? Cleveland v. Bradshaw,

693 F.3d 626, 633 (6th Cir. 2012). The Second, Sixth,

Seventh, and Ninth Circuits, joined by the Tenth

Circuit in the present case, have interpreted Schlup

to mean evidence is “new” so long as the evidence was

not presented at trial. App.92a-93a; Gomez v. Jaimet,

350 F.3d 673, 679-680 (7th Cir. 2003); Rivas v. Fischer,

687 F.3d 514, 543 (2d Cir. 2012); Souter v. Jones, 395

F.3d 577, 595 n. 9 (6th Cir. 2005); Griffin v. Johnson,

350 F.3d 956, 961-63 (9th Cir. 2003). The Third and

Eighth Circuits, on the other hand, have held “that

evidence is ‘new’ only if it was not available at the

time of trial through the exercise of due diligence.”

Kidd v. Norman, 651 F.3d 947, 952 (8th Cir. 2011);

see Hubbard v. Pinchak, 378 F.3d 333, 341 (3d Cir.

2004) (evidence is not “new” if “it was available at

trial”); see also Wright v. Quarterman, 470 F.3d 581,

590-91 (5th Cir. 2006) (noting the circuit split but

finding it unnecessary to weigh in).

In this instance, the minority side of the split

actually has the better view. This Court should grant

certiorari review to hold that “new” evidence, for purposes of Perkins, means newly discovered or newly

available, as opposed to newly presented, evidence.

To begin with, this Court has arguably already

said as much. As quoted above, this Court said that a

petitioner must present “new reliable evidence . . . that

was not presented at trial.” Schlup, 513 U.S. at 324.

Either this sentence is redundant, or “new” must mean

something beyond “not presented at trial,” contrary

to the view taken by the majority below. Indeed, as the

20

Ninth Circuit previously recognized, Justice O’Connor’s

concurring opinion expressly employed the term “newly

discovered” evidence. Griffin, 350 F.3d at 962 (citing

Schlup, 513 U.S. at 332 (O’Connor, J., concurring)).

Given that Justice O’Connor wrote to explain what she

“underst[oo]d the Court to decide,” Schlup, 513 U.S. at

332 (O’Connor, J., concurring), her concurring opinion

offers powerful evidence of what the majority’s undefined use of the term “new” evidence meant, see Griffin,

350 F.3d at 962 (recognizing the significance of Justice

O’Connor’s view that “new” evidence means “newly

discovered” evidence but finding the court was bound

by prior panels’ holdings that “actual innocence claims

require only ‘newly presented’ evidence”).

Furthermore, the reasoning of the contrary view

adopted below collapses under scrutiny. The majority

primarily reasoned that, under Perkins, “a petitioner

who establishes actual innocence need not make a

showing of diligence in order to get his otherwise timebarred substantive claims heard,” and thus “[t]hose

courts that categorically reject actual-innocence claims

unless the petitioner shows he could not have discovered the new evidence through the exercise of diligence

prior to trial seem to be in conflict with Perkins.”

App.93a (citing Perkins, 569 U.S. at 399). Respectfully,

the majority misread Perkins’s discussion of delay and

diligence.

The referenced discussion in Perkins occurred in

the context of rejecting the State’s argument that a

habeas petitioner might “lie in wait and use stale evidence to collaterally attack his conviction,” delaying, for

instance, until an elderly witness has passed away to

bring forth new evidence. Perkins, 569 U.S. at 399400. This Court dismissed that concern, reasoning

that “[u]nexplained delay in presenting new evidence

21

bears on the determination whether the petitioner

has made the requisite showing.” Id. at 399 (emphasis

added). This Court reiterated its position from Schlup

that “‘a court may consider how the timing of the

submission and the likely credibility of a petitioner’s

affiants bear on the probable reliability of evidence of

actual innocence.’” Id. (quoting Schlup, 513 U.S. at 332)

(alterations adopted, emphasis added). Accordingly,

“[c]onsidering a petitioner’s diligence, not discretely, but

as part of the assessment whether actual innocence

has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward

delay in proffering new evidence.” Id. (emphasis added).

Thus, as these quotations make clear, Perkins

was referring to diligence and delay in the presentation

of evidence, not defining what makes evidence new or

suggesting that diligence may not be considered in

that definition. Indeed, the State’s reading of Perkins

makes sense when one considers the newly proffered

evidence this Court was considering—Perkins was

convicted in 1993, filed his federal habeas petition in

2008, and claimed actual innocence based on affidavits

prepared in 1997, 1998, and 2002, respectively. Perkins,

569 U.S. at 387-90. Thus, these affidavits were plainly

new since trial but were not new as of the time they

were presented in federal court. As such, the controversy about diligence in that case centered on Perkins’s

diligence, or lack thereof, in bringing his evidence to

federal court, not on whether the evidence was available at the time of trial. In sum, what Perkins said

was that courts may not consider as dispositive lack

of diligence or undue delay in bringing new evidence

of innocence to federal court, but the majority below

gleaned from that the quite distinct proposition that

22

evidence is new even if it could have been discovered

at the time of trial with diligence.

In sum, the position of the majority below, and its

sister circuits on that side of the split, is contrary to

this Court’s precedents. Certiorari review is warranted.

II. THE DECISION BELOW DRAMATICALLY EXPANDS

THE “NARROW” ACTUAL-INNOCENCE GATEWAY

ENVISIONED BY THIS COURT.

Although this Court has attempted to limit the

actual-innocence gateway to a narrow class of extraordinary cases in Schlup and Perkins, the “newly

presented” definition of new evidence adopted by the

court below and some of its sister circuits threatens

to open the floodgates on such claims. For instance,

any habeas petitioner who decided against testifying at

trial could newly proffer proposed testimony to support

a gateway claim of actual innocence in federal court,

and such testimony would be considered “new” under

the majority’s rule. Such an absurd result is avoided

by the contrary rule adopted by a minority of circuits.

See Hubbard, 378 F.3d at 340 (“A defendant’s own

late-proffered testimony is not ‘new’ because it was

available at trial. Hubbard merely chose not to present

it to the jury. That choice does not open the gateway.”).

Downplaying such concern, the majority here

reasoned that “the fact that new reliable evidence of

innocence ‘is obviously unavailable in the vast majority

of cases,’ such that ‘claims of actual innocence are rarely

successful,’ mitigates any concern that the ‘newly presented’ view will lead to a multiplication of unmeritorious claims.” App.94a (quoting Schlup, 513 U.S. at 324).

But this is no answer. For starters, this assurance in

Schlup was predicated on its cabining actual-innocence

claims to instances where habeas petitioners present

23

new evidence; as shown above, the majority below has

effectively read the word “new” out of the Schlup/

Perkins rule, which dramatically expands the class

of actual-innocence claims that will require review.

In addition, screening evidence for whether it is

“reliable” and/or whether it could reasonably have

changed the outcome of the trial is a far more onerous

task than asking simply whether evidence is “new.”

Thus, even if a federal court employing an expansive

definition of “new” nevertheless ultimately concludes

that a petitioner’s evidence is not reliable and/or does

not show it is more likely than not that any reasonable

juror would not have voted to convict him, the federal

court—as well as the State—will have expended

considerable time and energy examining the proffered

evidence as well as all of the trial evidence in determining whether the petitioner has made the requisite

showing. This is clearly contrary to this Court’s premise in creating the actual-innocence gateway that,

whatever is meant by “new reliable evidence,” “such

evidence is obviously unavailable in the vast majority

of cases,” so these claims will be, “in virtually every

case,” “summarily rejected.” Schlup, 513 U.S. at 324

(quotation marks omitted, emphasis added).

The evisceration of the “narrow” gateway occasioned by the expansive definition of “new” evidence

adopted by the court below and some of its sister

circuits is nowhere better illustrated than in this very

case. The Tenth Circuit majority’s generous view of

what constitutes “new”—and, indeed, even what constitutes “reliable”—evidence appears to have few limits.

At bottom, the majority’s overly expansive interpretation of Schlup improperly allows an “actual innocence”

claim to do “nothing more than . . . repackag[e]. . .

the record as presented at trial,” Hubbard, 378 F.3d

24

at 341, which should, under a proper reading of this

Court’s precedents, be viewed as simply a rehashing of old evidence and insufficient to open the actualinnocence gateway.

The majority opinion found that Fontenot made a

credible showing of actual innocence based on essentially four categories of “new,” “reliable” evidence that

were entitled to substantial weight. App.98a-132a. The

first category was evidence “tending to establish

Mr. Fontenot’s alibi of being at [a] keg party at Gordon

Calhoun’s apartment on the night of [the kidnapping].”

App.50a. In particular, the majority found to be persuasive affidavits of witnesses who allegedly saw Fontenot

at the party, Ward’s statement to police that he and

Fontenot were in attendance, and a letter Fontenot

wrote to his attorney in 1985 detailing his alibi and

listing various individuals who were at the keg party.

App.55a, 99a-104a. But this evidence cannot possibly

be considered “new” within the meaning of Schlup.

Information regarding Fontenot’s own “alibi” was

clearly something within his knowledge, and indeed

the party factored into his confession (P/H Tr. III 664,

Tr. V 969). In fact, Fontenot would have had better

access to the witnesses who might have been present

at that party than the State would have had. Nor is

the alibi evidence “reliable” or convincing evidence of

innocence. As Judge Eid reasoned, “a reasonable juror

could conclude that Fontenot could have attended the

party and committed the crimes. In fact, in his confession, he discusses being at a party before leaving to

kidnap the victim. . . . And his co-defendant [Ward]

was found to have been at both” the party and

McAnally’s. App.205a (Eid, J., dissenting).

As to the second category, the majority credited

as “new” and “reliable” evidence that, prior to her

25

abduction, Mrs. Haraway had been receiving anonymous, obscene phone calls at McAnally’s. App.104a108a. But while these phone calls were not mentioned

at trial, such evidence is again not new within the

meaning of Schlup because trial counsel knew about

these phone calls at the time of Fontenot’s second trial.

(ROA, Vol. II, 260). Yet, the majority placed great

emphasis on the calls, going so far as to find that

prank calls with “heavy breathing” somehow pointed

to a different perpetrator with a different motive than

Fontenot. App.14a, 106a. Given that Fontenot admitted to kidnapping and raping the victim, it is difficult

to imagine how an obscene phone call points to any

different motive than Fontenot had, contrary to the

majority’s finding that a motive “was entirely lacking

with respect to the potential involvement of Mr. Fontenot.” App.106a.7 Further, as Judge Eid reasoned, “a

reasonable juror presented with information about

suspicious calls . . . would most likely [have] deem[ed]

the calls irrelevant to the case” or would “view the

calls in light of the other evidence against Fontenot

and infer that he was the caller.” App.205a (Eid, J.,

dissenting).

As to the third category, the majority then devoted

a lengthy discussion to, and placed great weight on,

two affidavits by eyewitnesses, James Moyer and Karen

Wise, that were written nearly three decades after their

original testimony. App.109a-127a. Mr. Moyer, who

entered McAnally’s just before the abduction, originally

7 Indeed, the majority repeatedly suggested that Fontenot lacked

motive, emphasizing that there was “no evidence . . . that he

had ever been in McAnally’s or had ever even seen Ms. Haraway

before the evening of the crime.” App.106a. By this logic, however, no man would ever rape and murder a woman he does not

know, and yet stranger sexual violence is very real.

26

testified that he saw two men generally matching

Fontenot’s and Ward’s descriptions inside the store.

App.525a. In a 2012 affidavit, however, “Mr. Moyer

assert[ed] he is ‘confid[e]nt that Karl Fontenot was not

the man I saw at McAnally’s.’” App.111a. As the State

argued below, and Judge Eid found, this evidence was

not truly new: “[t]he jury already had serious cause

to deemphasize Moyer’s identification of Fontenot

at trial because it was riddled with hedging and

admissions of uncertainty.” App.204a (Eid, J., dissenting). Indeed, in touting the alleged reliability of Mr.

Moyer’s affidavit, the majority stated that the affidavit

“align[ed] with candid statements he made prior to

both trials.” App.114a-115a. But this of course proves

the State’s point—this evidence is not actually “new”

within the meaning of Schlup.

And Ms. Wise—who had testified at trial that

Ward and a man matching Fontenot’s description came

into the convenience store where she worked down the

road from McAnally’s—provided an affidavit that did

not “directly recant anything about Fontenot.” App.

204a (Eid, J., dissenting). Rather, she essentially added

to her testimony, claiming there were two additional

men in her store that night who made her nervous.

App.125a. Even if this evidence is “new,” it is not

remotely helpful, as it does absolutely nothing to

advance Fontenot’s claim of innocence. Moreover, Mr.

Moyer’s and Ms. Wise’s affidavits, prepared some thirty

years after the events in question, are extraordinarily

unreliable. As Judge Eid noted, in light of this timing,

“a reasonable juror would tend to discount the two

affidavits.” App.204a (Eid, J., dissenting). See Herrera

v. Collins, 506 U.S. 390, 403, 406 (1993) (“[T]he passage of time only diminishes the reliability of criminal

adjudications. . . . [T]he question of guilt or innocence

27

. . . becomes more uncertain with time for evidentiary

reasons.”).

Fourth and lastly, as to the category containing

the medical examiner’s file, the majority found to be

significant and persuasive a 1986 letter from a forensic

anthropologist consultant stating the consultant’s opinion that Mrs. Haraway’s remains showed signs, by

virtue of marks on her pelvis, that she had given birth

to at least one child. App.283a. The majority reasoned

that this letter showed that, because there is no indication Mrs. Haraway was pregnant at the time of her

abduction, “she must have been killed some months

after April 28[, 1984]. . . . Due to his incarceration

from late October 1984 onward, this would make Mr.

Fontenot’s involvement in the crime highly improbable.” App.132a. Again, however, anything within the

medical examiner’s file was available to Fontenot at

the time of his retrial and therefore not “new.”

In sum, had the majority not adopted its overly

expansive reading of Schlup, which considered as

“new” evidence that frequently is, and indeed in this

case was, available at the time of trial (i.e., evidence

that the defense either could have discovered or was

aware of and considered, but chose against, presenting),

the majority would never have been able to find the

actual-innocence gateway satisfied.8 Compounding

8 The majority’s overly expansive definition also tainted its

Brady analysis and exacerbated a second circuit split, leading it

ultimately to affirm the grant of habeas relief to Fontenot. Specifically, the majority held that Brady can be violated even

where the evidence in question was otherwise available to the

defense, while acknowledging a circuit split on the issue: “It is

true that many of our sister circuits deem evidence ‘suppressed’

under Brady only if ‘the evidence was not otherwise available to

the defendant through the exercise of reasonable diligence.’ In

these circuits, ‘[e]vidence is not “suppressed” if the defendant either

28

this error, as Judge Eid recognized, the majority’s

evaluation of the evidence as a whole gave short shrift

to the fact that Fontenot confessed. App.206a. While

the majority focused on claimed weaknesses in the

confession—inconsistencies with the physical evidence

and Fontenot’s later recantation—the majority all but

ignored the OCCA’s presumptively correct findings that

Fontenot’s confession was corroborated in nine separate ways. See 28 U.S.C. § 2254(e)(1).9 From there,

knew or should have known of the essential facts permitting

him to take advantage of any exculpatory evidence.’” App.163a

(quoting United States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002);

United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (emphasis

added, citation omitted)). Contrary to these circuits, the majority

concluded that the fact that defense counsel knew about or should

have known about the information at issue “is irrelevant to whether

the prosecution had an obligation to disclose the information.”

App.164a (quotation marks omitted). In any event, the majority

should never have even reached this issue and should instead have

concluded that the actual-innocence gateway was not available

to Fontenot.

9 The majority found that Fontenot met his burden to overcome

only one of these nine presumptively correct points of corroboration under § 2254(e)(1): Mr. Moyer’s belief that he saw a man

who matched Fontenot’s description at McAnally’s the night of

the abduction. App.50a, 112a, 117a, 525a. Beyond the eight points

left unrebutted, this application of § 2254(e)(1) by the majority

was again error. Due to the passage of time alone—thirty years—

Mr. Moyer’s eleventh-hour statement that he is now certain it

was not Fontenot does not clearly and convincingly overcome

his original, already-equivocal identification of Fontenot at

trial. See 28 U.S.C. § 2254(e)(1); see also, e.g., Thompkins v.

Pfister, 698 F.3d 976, 985 (7th Cir. 2012) (identifying conflicting

evidence is insufficient to overcome § 2254(e)(1)’s presumption

of correctness by clear and convincing evidence); Rountree v.

Balicki, 640 F.3d 530, 543 (3d Cir. 2011) (same); cf. Herrera, 506

U.S. at 418-19 (finding to be unpersuasive affidavits containing

statements that contradicted trial testimony offered just ten

years after trial).

29

“[t]he majority’s under-appreciation of the impact that

Fontenot’s confession would have on a reasonable juror

then lead[] it to over-appreciate the value of the new

evidence he presents.” App.206a. At bottom, the

proffered evidence given the greatest weight by the

majority was not actually “new” within the meaning of

Schlup, and it certainly was not sufficient to overcome

Fontenot’s graphic confession to the murder of Mrs.

Haraway, made over a year before her body was found

—a confession which two juries reviewed and found

credible in spite of the fact that Fontenot put on a

zealous defense at both trials. App.516a-530a.

For all these reasons, the majority’s application

of Schlup in this case both led to an erroneous result

and threatens to eviscerate the “narrow” actualinnocence gateway this Court has attempted to erect.

III. THE DECISION BELOW, IF ALLOWED TO STAND,

WILL ONLY CONTRIBUTE TO THE PROLIFERATION

OF ACTUAL-INNOCENCE GATEWAY CLAIMS.

As indicated above, and predicted by the dissenting

justices in Schlup and Perkins, the extraordinarily

“narrow” actual-innocence gateway this Court

attempted to craft has turned out to be anything but.

In particular, the State of Oklahoma, and the federal

district courts in which it routinely litigates habeas

cases, is frequently confronted with innocence gateway

claims in an attempt to overcome time-barred § 2254

petitions. The expansive definition of “new” and “reliable” evidence adopted by the majority here will only

exacerbate that problem.

Even prior to the majority’s opinion, the State

and Oklahoma’s federal district courts were forced to

routinely address claims of actual innocence, meaning

already limited State and judicial resources must be

30

spent in merits review of evidence in old cases despite

a clear statutory time-bar. See, e.g., Macklin v. Dowling,

822 F. App’x 720, 721-22 (10th Cir. 2020) (unpublished);

Moody v. Dowling, No. CIV-20-00696-JD, 2021 WL

2446738, at *5 (W.D. Okla. June 15, 2021); Proctor v.

Whitten, No. CIV-19-837-PRW, 2021 WL 597881, at *2

(W.D. Okla. Feb. 16, 2021); Malone v. Crow, No. 20-CV0227-GKF-JFJ, 2021 WL 957264, at *3 & n. 4 (N.D.

Okla. Feb. 5, 2021); Birch v. Crow, No. 19-CV-0276TCK-FHM, 2020 WL 437553, at *8-9 (N.D. Okla. Jan.

28, 2020); Colbert v. Crow, No. 19-CV-0108-CVE-JFJ,

2019 WL 4740236, at *3 (N.D. Okla. Sept. 27, 2019);

McCurley v. Crow, No. 18-CV-0429-JHP-JFJ, 2019 WL

3237992, at *5-6 (N.D. Okla. July 18, 2019); Cardwell

v. Allbaugh, No. 18-CV-0199-CVE-FHM, 2018 WL

6075480, at *6-8 (N.D. Okla. Nov. 20, 2018); Decker

v. Braggs, No. CIV-18-443-C, 2018 WL 4346707, at

*4-5 (W.D. Okla. Aug. 21, 2018), report and recommendation adopted, No. CIV-18-443-C, 2018 WL 4344467

(W.D. Okla. Sept. 11, 2018); Turnbough v. Bryant,

No. 17-CV-172-GKF-FHM, 2017 WL 5491005, at *3-7

(N.D. Okla. Nov. 15, 2017); Simpson v. Bear, No. 16-CV0153-CVE-FHM, 2017 WL 78506, at *4 (N.D. Okla.

Jan. 9, 2017).

As Justice Scalia accurately predicted, time-barred

habeas petitioners very often claim actual innocence,

meaning that, even if few of them ultimately pass

through the Schlup/Perkins gateway, the district court

is nevertheless “obligated to expend limited judicial

resources wading into the murky merits of the petitioner’s innocence claim.” Perkins, 569 U.S. at 411

(Scalia, J., dissenting). This situation clearly belies this

Court’s promise that Schlup-satisfying evidence “is

obviously unavailable in the vast majority of cases,”

so these claims may be, “in virtually every case,”

31

“summarily rejected.” Schlup, 513 U.S. at 324 (quotation

marks omitted, emphasis added). This further frustrates Congress’s purpose in enacting the statute of

limitations in AEDPA to, inter alia, promote finality

and reduce collateral review. See Duncan v. Walker,

533 U.S. 167, 178 (2001). The majority’s expansive

interpretation of Schlup’s “new” evidence requirement

(and, indeed, the low bar the majority set for what

constitutes “reliable” and “compelling” evidence of

innocence) will only exacerbate this problem.

Nor is the Tenth Circuit’s frustration of AEDPA’s

goals limited to this case. Indeed, the State of Oklahoma

has argued, and is arguing, that the Tenth Circuit has

not faithfully applied AEDPA in other cases. See, e.g.,

Martin v. Cortez Johnson, Petition for Writ of Certiorari, No. 21-896 (U.S.) (pending) (arguing the Tenth

Circuit improperly stripped the OCCA’s opinion of

deference based on an argument never made in state

court); Sharp v. Harris, Petition for Writ of Certiorari,

No. 19-1105 (U.S.), cert. denied, 141 S.Ct. 124 (2020)

(arguing that the Tenth Circuit found the OCCA’s

entire decision unreasonable in light of an isolated

factual finding, resulting in a remand for an evidentiary hearing); Sharp v. Smith, Petition for Writ of

Certiorari, No. 19-1106 (U.S.), cert. denied, 141 S.Ct.

186 (2020) (arguing that the Tenth Circuit improperly

granted habeas relief after, among other things, sua

sponte finding that the OCCA failed to make a merits

adjudication because its analysis was allegedly too

cursory and applying certain Supreme Court law

retroactively despite a clear Teague10 bar). This Court’s

intervention, to ensure fidelity to the limitations of

AEDPA and this Court’s precedents, is warranted.

10 Teague v. Lane, 489 U.S. 288 (1989).

32

CONCLUSION

The petition for writ of certiorari should be

granted.

JOHN M. O’CONNOR

ATTORNEY GENERAL

CAROLINE E.J. HUNT

ASSISTANT ATTORNEYS GENERAL

COUNSEL OF RECORD

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 N.E. TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4410

CAROLINE.HUNT@OAG.OK.GOV

COUNSEL FOR PETITIONER

JANUARY 3, 2022