Moore v. White

1

BEVERLY MICHELLE MOORE, Petitioner, v. TAMIKA WHITE, Warden, Respondent.^[1]

No. CIV-09-985-G

United States District Court, W.D. Oklahoma

September 11, 2023

ORDER

CHARLES B. GOODWIN, United Stales District Judge

Petitioner Beverly Michelle Moore, a state prisoner appearing through counsel, filed this action seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Following extensive proceedings, including a stay pending primary determination by the state courts of issues raised herein by Petitioner the controlling pleading-Petitioner's Second Amended Petition-was filed. See Second Am. Pet. (Doc. No 226); Pet'r's Br. (Doc. No. 227). Respondent, Warden Tamika White, filed an Answer (Doc. No. 250), and Petitioner filed a Reply (Doc. No. 254).

In accordance with 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Gary M. Purcell for initial findings and recommendations. Judge Purcell issued a Supplemental Report and Recommendation (“Suppl. R. & R.,” Doc. No. 261), in which he recommended that Petitioner's request for habeas relief be conditionally granted. Respondent filed an Objection (Doc. No. 264), to which Petitioner has responded (Doc. No. 267).

Having conducted the requisite de novo review of the Supplemental R. & R., the Court finds and concludes as follows.

PROCEDURAL HISTORY

Petitioner's state- and federal-court proceedings have followed a circuitous path. See Mem. Op. & Order of Nov. 5 2014 (Cauthron, J.) at 1-4 (Doc. No. 208); R. & R. of Dec. 12, 2019 (Purcell, Mag. J.) at 4-15 (Doc. No. 244). The Court will discuss that background herein only as necessary to evaluate the currently pending Second Amended Petition.

In September of 2005, following a jury trial in the District Court of Oklahoma County, Oklahoma, Petitioner was convicted of murder in the first degree of her boyfriend's 22-month-old son, A.S., by use of unreasonable force. Petitioner was sentenced to life imprisonment without the possibility of parole. See State v. Moore, No. CF-2004-351 (Okla. Cnty. Dist. Ct.).^[2] Petitioner appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed the conviction but modified her sentence to life imprisonment with the possibility of parole. See Moore v. State, No. F-2006-63 (Okla. Crim. App.).

In September of 2008, Petitioner filed a pro se application for postconviction relief. The state trial court denied the application, and the OCCA dismissed Petitioner's appeal of that disposition for lack of jurisdiction. See Second Am. Pet. (Doc. No. 226) at 2-4.

Petitioner filed the instant habeas action on September 4, 2009. An attorney was appointed to represent Petitioner in July of 2010. Respondent challenged the timeliness of Petitioner's habeas application. The Court held that Petitioner was entitled to review of the merits of her constitutional claims because she “had made a . . . showing of the probability of actual innocence sufficient to permit her case to overcome the limitations bar.” Order of Oct. 28, 2011 (Cauthron, J.) at 2-4 (Doc. No. 139) (adopting Proposed Findings of Fact and Conclusions of Law of Sept. 7, 2011 (“Proposed FFCL,” Bacharach, Mag. J.) (Doc. No. 135)). See generally Schlup v. Delo, 513 U.S. 298, 313-29 (1995).

Respondent further argued that Petitioner had failed to exhaust available state-court remedies as required by 28 U.S.C. § 2254(b). See Limited Answer (Doc. No. 159) at 1-14. The Court determined that in light of various factors, including “the substantial newfound evidence developed in federal court regarding the Petitioner's actual innocence,” “the state courts should be given an opportunity to address this matter in the first instance.” Order of Apr. 6, 2012 (Cauthron, J.) at 2 (Doc. No. 182). The Court therefore stayed proceedings in this matter pending Petitioner's exhaustion of her claims in the state courts. See id. at 3.

On June 5, 2012, Petitioner filed a second application for postconviction relief in the state trial court. See Pet'r's Notice (Doc. No. 195) at 1. The application raised six propositions of error: (1) ineffective assistance of trial counsel for (a) failure to fully investigate the cause of death of A.S. and the timing of injuries to A.S. alleged to have been caused by Petitioner, and (b) failure to present testimony from expert witnesses as to the cause and timing of the fatal injuries; (2) ineffective assistance of trial counsel due to trial counsel suffering from conflicts of interest; (3) deprivation of due process due to the State's failure to disclose exculpatory evidence; (4) ineffective assistance of appellate counsel due to failure to argue ineffective assistance of trial counsel as to the lack of investigation of medical issues and lack of presentation of medical testimony; (5) ineffective assistance of appellate counsel arising from the failure to uncover the conflicts of interest of trial counsel and raise a corresponding claim of ineffective assistance of trial counsel; and (6) ineffective assistance of appellate counsel due to failure to uncover and seek relief on the State's violation of Brady v. Maryland, 373 U.S. 83 (1963). See Pet'r's Second Appl. Postconviction Relief (Doc. No. 234-7) at 2-8.

The trial court rejected the State's assertion of procedural bar, and, by agreement of the parties, bifurcated its determination of Petitioner's postconviction claims into two parts. The trial court would first consider whether defense counsel rendered deficient performance or labored under a conflict of interest. If the trial court found that defense counsel's performance was deficient or subject to a conflict of interest, the trial court would then separately consider whether that performance had resulted in prejudice to Petitioner, as well as Petitioner's Brady claim and ineffective assistance of appellate counsel claims. See J. Statement of Proc. Hist. (Doc. No. 234-9) at 8.

Regarding the first determination, the trial court conducted an evidentiary hearing on various dates between December 2014 and August 2015. See id. at 9. The state-court docket reflects that the complete hearing transcript was filed in August 2016, and each party submitted proposed findings of fact and conclusions of law to the trial court on January 17, 2017. See State v. Moore, No. CF-2004-351 (Okla. Cnty. Dist. Ct.).

On March 23, 2018, Petitioner filed a Motion to Lift Stay (Doc. No. 213) in this Court, arguing that the exhaustion requirement should be excused and that federal habeas proceedings should resume due to both exceptional circumstances and the “ongoing and lengthy delays in state court proceedings.” Id. at 6. Four days later, the state trial court issued an order denying relief on Petitioner's Second Application for Postconviction Relief. See Trial Ct. Order of Mar. 27, 2018 (Doc. No. 227-2). Petitioner appealed the denial to the OCCA. The appellate court did not address the merits of Petitioner's claims but affirmed on the basis that Petitioner's claims were procedurally barred. See OCCA Order of Oct. 12, 2018 (Doc. No. 227-1), Moore v. State, No. PC-2018-403 (Okla. Crim. App.).

This Court then lifted the stay that had been imposed in this matter and permitted Petitioner to file an amended pleading. On April 19, 2019, Petitioner filed the verified Second Amended Petition. Petitioner presents six grounds for relief, urging the same propositions of error as were argued to the state courts in her Second Application for Postconviction Relief. See Second Am. Pet. at 7-14. In Ground One, Petitioner argues that she was deprived of her Sixth Amendment right to effective assistance of trial counsel based upon counsel's: “a) failure to fully investigate the cause of death and the timing of injuries attribute[d] to Petitioner, including the failure to timely consult with and retain expert witnesses, and b) failure to present testimony from the expert witnesses as to the cause and timing of the fatal injuries.” Id. at 7. According to Petitioner, “Trial Counsel was aware that there were reasons to question the cause and timing of the child's death but failed to reasonably investigate those issues, failed to timely consult with and retain appropriate experts[,] and failed to present expert testimony at trial, which resulted in Petitioner's conviction.” Id.; see also Pet'r's Br. at 55-72.

Respondent initially responded to the Second Amended Petition by asserting that Petitioner's claims were unexhausted, untimely, or procedurally barred. See Initial Answer (Doc. No. 234) at 39-117; 28 U.S.C. §§ 2244(d), 2254(b). Rejecting these arguments, Judge Purcell recommended that Petitioner's claims be permitted to proceed on their merits due to Petitioner having made a sufficient showing of actual innocence. See R. & R. of Dec. 12, 2019, at 9-10, 16-21. Neither party objected to this aspect of the R. & R., which was accepted and adopted by the undersigned. See Order of May 14, 2020 (Goodwin, J.) at 2-3 (Doc. No. 248); see also id. at 3 n.2.

Judge Purcell also recommended, and the Court agreed, that Respondent be permitted to file an answer addressing the merits of the federal habeas claims presented in the Second Amended Petition. See id. at 5. Respondent then filed an Answer (Doc. No. 250), and Petitioner filed a Reply (Doc. No. 254). Upon due consideration, Judge Purcell issued the Supplemental R. & R. (Doc. No. 261) now under review. In his 90-page Supplemental R. & R., Judge Purcell provided background information and procedural history for the matter. See id. at 1-18. Judge Purcell then addressed Ground One of the Second Amended Petition in detail, ultimately finding that Petitioner had shown a deprivation of her right to effective assistance of trial counsel and recommending that the petition be granted on that basis. See...