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Fontenot v. Allbaugh

United States District Court, E.D. Oklahoma

August 21, 2019

KARL FONTENOT, Petitioner,
v.
JOE ALLBAUGH, WARDEN, Respondent.

          OPINION AND ORDER

          James H. Payne United States District Judge.

         This matter is before the Court on Respondent's Motion to Dismiss Second Amended Habeas Corpus Petition filed pursuant to 28 U.S.C. § 2254 (Dkt.#s 123, 147).[1] Petitioner filed a response to the motion on May 14, 2019 (Dkt.# 150).

         Petitioner's case is one of three the United States District Court for the Eastern District of Oklahoma has found to involve a dream confession of dubious validity.[2] The players in this case, Pontotoc County District Attorney William Peterson, Ada Police Detective Dennis Smith, and Oklahoma State Bureau of Investigation Agent Gary Rogers, were all involved in these suspect confessions and were all involved in Petitioner's case.

         The prosecution has acknowledged that Petitioner's confession lacked any corroborating evidence. Besides the confession, there was no direct or circumstantial evidence connecting Petitioner to this crime. Further, despite three court orders, the Pontotoc County District Attorney's Office, numerous law enforcement agencies, and Respondent have repeatedly failed to disclose documents relevant to Mr. Fontenot's case for over twenty-five years. At the same time, Respondent both in state post-conviction and in these proceedings argues laches as an affirmative defense to Mr. Fontenot's assertions of actual innocence and numerous constitutional violations. The audacity of that argument in the face of newly “discovered” Ada Police Reports is astounding.

         The investigation into Mr. Fontenot's case has revealed both documents and witness statements that prove an alibi defense, and substantiate proof of the ineptness of the police investigation. The newly discovered evidence undermines the prosecutor's case and provides solid proof of Mr. Fontenot's probable innocence. “Probable innocence” is established if Mr. Fontenot presents “new facts [that] raise[] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial…” Schlup v. Delo, 513 U.S. 298, 317 (1995) (emphasis added). To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327; see also House v. Bell, 547 U.S. 518, 538 (2006)(a federal court presented with Schlup claim “must make” ‘a probabilistic determination about what reasonable, properly instructed jurors would do.'”). Once a federal court makes such a finding, a gateway claim of innocence exists removing any procedural obstacles allowing the substantive review of Mr. Fontenot's claims. See House, 547 U.S. at 536-537; Case v. Hatch, 731 F.3d 1015, 1036 (10thCir. 2013). The evidence presented in Mr. Fontenot's Second Amended Petition establishes his probable innocence and merits the removal of any procedural hurdles.

         Petitioner, a prisoner currently incarcerated at North Fork Correctional Facility in Sayre, Oklahoma, is challenging his convictions in Hughes County District Court Case No. CF-88-43 for First Degree Murder, Robbery with a Dangerous Weapon, and Kidnapping.

         He sets forth the following grounds for relief:

I. Newly discovered evidence establishes that Mr. Fontenot is innocent, satisfying the gateway requirements of Schlup v. Delo, 513 U.S. 298 (1995).
II. Mr. Fontenot's Fourteenth Amendment rights were violated when the Pontotoc County District Attorney's Office withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
III. Mr. Fontenot's Sixth and Fourteenth Amendment fundamental right to counsel was violated by the Ada Police Department's interference with attorney-client privilege.
IV. Mr. Fontenot's Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to investigate the case and present viable evidence supporting his innocence.
V. Mr. Fontenot's Sixth Amendment right to effective assistance of appellate counsel was violated when his appellate counsel failed to present viable constitutional claims in Mr. Fontenot's direct appeal proceedings.
VI. Mr. Fontenot's due process rights were violated due to police misconduct when taking a false confession and the prosecution knowingly introduced false testimony during his trial in violation of the Fifth and Fourteenth Amendment to the U.S. Constitution.
VII. The evidence was insufficient to convict Mr. Fontenot because the State failed to show the existence of the corpus delicti of the charged crimes outside of the confession and failed to establish the trustworthiness of the confession in violation of the Fourteenth Amendment.
VIII. The State's injection of inadmissible hearsay from the extrajudicial confession of Mr. Ward in Mr. Fontenot's trial violated his constitutional right of confrontation.
IX. Mr. Fontenot's Fourteenth Amendment due process rights were violated due to the police misconduct that permeated the investigation into Mrs. Haraway's disappearance.

         Respondent has filed a motion to dismiss the Second Amended Petition as barred by the statute of limitations set forth in 28 U.S.C. § 2244(d), and the state bar of laches. (Dkt.# 147). Respondent also asserts the Second Amended Petition includes unexhausted claims, rendering it a mixed petition. Id. Petitioner responds he has established the actual innocence gateway removing the procedural impairments, and all of his claims should be deemed exhausted. (Dkt.# 150).

         PROCEDURAL HISTORY[3]

         On April 24, 1984, Donna Denice Haraway was last seen at McAnally's convenience store in Ada, Oklahoma. A few customers arrived to find the store empty and called emergency services. Several law enforcement agencies responded to the scene including the Ada Police Department (“APD”), and the Pontotoc County Sheriff's Office. Later, the Oklahoma State Bureau of Investigation joined the local agencies in the investigation.

         On October 12, 1984, with Mrs. Haraway still missing, the police contacted Thomas Ward in Norman, Oklahoma, and interviewed him for more than two hours. (PH Tr. 506). Mr. Ward denied any involvement or knowledge of what happened to Mrs. Haraway. (Tr. 1336). Mr. Ward returned to the Oklahoma State Bureau of Investigation to take a polygraph test the next day. After nine hours of interrogation, police videotaped Mr. Ward give a statement in which he described being with Odell Titsworth and Karl Fontenot the night of Mrs. Haraway's disappearance. Mr. Ward also stated the three robbed McAnally's, kidnapped Mrs. Haraway, raped, and stabbed her to death. Based solely on Mr. Ward's confession, police arrested Mr. Fontenot the next day. Mr. Fontenot was interrogated and confessed in similar fashion as Mr. Ward.

         Nineteen days later, the Pontotoc District Attorney's Office filed charges against Mr. Fontenot and Mr. Ward in Case No. CRF-84-183 including Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; Count III, First-Degree Rape; and Count IV, First-Degree (Malice Aforethought) Murder. (O.R. 112). On November 8, 1984, the State filed a Bill of Particulars against each defendant alleging the following aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. (O.R. 591, 592). Mr. Fontenot was appointed counsel on November 29, 1984, 42 days after his arrest. (O.R. 30).

         The Pontotoc District Court held a joint preliminary hearing on February 4, 1985. Mr. Fontenot and Ward were bound over for trial on Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; and Count IV, Murder in the First Degree. (O.R. 592-A-592-B). The magistrate found insufficient evidence to order either defendant to trial on Count III, First- Degree Rape. (P/H 1047). The State appealed to the District Court to reinstate Count III, but was overruled. (Tr. 26-27). The State appealed the ruling to the Oklahoma Court of Criminal Appeals. On September 6, 1985, while the State's appeal on the rape charge was pending, the State dismissed the rape charge and amended the Information to allege Count I, Robbery with a Dangerous Weapon; Count II, Kidnapping; and Count III, First Degree (Malice Aforethought) Murder, and proceeded to trial. (O.R. 475).

         Both Mr. Fontenot and Mr. Ward were convicted on all counts in a jury trial held on September 24, 1985. The trial court sentenced both to twenty years imprisonment on Count I, and ten years imprisonment on Count II. During the penalty phase of the trial, the jury found the existence of the three aggravating circumstances and no mitigation. Mr. Fontenot and Mr. Ward were sentenced to death. An appeal was timely filed for both men in the Oklahoma Court of Criminal Appeals.

         During the pendency of the appeal, a man found a skull in Hughes County, Oklahoma, which initiated a search of the area. Eighteen months after Mrs. Haraway's disappearance, her skeletal remains were recovered after several searches of the area. The medical examiner found a bullet hole in the back of her skull was the only evidence of a probable cause of death. (N/T 6/9/1988 at 130). The medical examiner also found no evidence of any stabbing or burning of the remains. (N/T 6/14/1988 at 134, 136). The Oklahoma Court of Criminal Appeals reversed both the conviction and sentence over Bruton violations in Fontenot v. State, 742 P.2d 31 (Okla. 1987); See Bruton v. United States, 391 U.S. 123 (1968).

         Following remand, Mr. Fontenot was tried in Hughes County, Oklahoma, after a change of venue motion was granted by the trial court. On June 7, 1988, the State filed an Amended Information alleging Counts I, II, and III, Robbery with a Dangerous Weapon, Kidnapping and Murder in the First Degree (malice aforethought), respectively, adding to Count IV the cause of death by gunshot. (O.R.II 76.) Another preliminary hearing was not held. Mr. Fontenot's jury trial started on June 7, 1988, in Hughes County District Court. (N/T 6/6/1988 at 1). On June 14, 1988, Mr. Fontenot was convicted on all counts. (N/T 7/8/1988 at 104; O.R. II at 165, 166, 167). The jury assessed punishments of twenty (20) and ten (10) years imprisonment on Counts I and II respectively. (O.R.II at 65, 166). Following the penalty phase, the jury found the existence of the three alleged aggravating circumstances and on June 14, 1988, set Mr. Fontenot's punishment at death. (O.R II at 168, 169). Judgment and sentence in accordance with the jury's verdicts were imposed on July 8, 1988. Mr. Fontenot filed a timely notice of appeal to the Oklahoma Court of Criminal Appeals.

         Mr. Ward was tried in Pottawattamie County on the same charges almost a year after Mr. Fontenot was convicted. Before the same trial court, Mr. Ward's trial began on May 31, 1989, and concluded on June 16, 1989. The jury found Mr. Ward guilty on all charges. However, the jury imposed a sentence of life imprisonment with the possibility of parole.

         On June 8, 1994, the Oklahoma Court of Criminal Appeals affirmed Mr. Fontenot's convictions, but overturned his death sentence due to a life without the possibility of parole jury instruction being omitted during the penalty phase. Fontenot v. State, 881 P.2d 69 (Okla. 1994). The Court remanded Mr. Fontenot's case for resentencing. Mr. Fontenot was subsequently sentenced to life imprisonment without the possibility of parole.

         An Application for Post-Conviction Relief was filed in the District Court of Pontotoc County on July 24, 2013. After requesting additional time to respond, the State filed its response on September 17, 2014. Without an evidentiary hearing, the district court issued its post-conviction findings on December 31, 2014, denying relief based on the Respondent's assertion of Laches. Mr. Fontenot timely filed an appeal to the Oklahoma Court of Criminal Appeals on March 2, 2015. He raised all claims from his state post-conviction proceedings and challenged the laches decision. On November 2, 2015, the Oklahoma Court of Criminal Appeals affirmed the state post-conviction court's order denying relief finding the application was barred by laches. Mr. Fontenot filed a Petition for Writ of Habeas Corpus seeking relief from his state court convictions. (Dkt.# 4).

         Since Mr. Fontenot filed his initial Petition, he has engaged in discovery, served several subpoenas, and conducted depositions. The Court authorized discovery, including production and review of the Pontotoc County District Attorney's files. (Dkt.# 24, 44). During the process, Mr. Fontenot's counsel served a subpoena on the Ada Police Department and in response their organization stated no documents existed. Within the District Attorney's files, counsel discovered reports never disclosed to prior defense counsel. Based upon that discovery, Mr. Fontenot's counsel was allowed to file an Amended Petition. (Dkt.# 77).

         Shockingly, thereafter, additional documents were produced by Respondent and the Ada Police Department, but not to Mr. Fontenot. Pursuant to Thomas Ward's subpoena during state post-conviction proceedings, Respondent received Ada Police Reports. These documents were not immediately turned over to Mr. Fontenot's counsel. Once Mr. Fontenot's counsel discovered this, they requested the records which were subsequently disclosed. Based upon these events, this Court permitted Mr. Fontenot to file the instant Second Amended Petition. (Dkt.# 123).

         STATEMENT OF FACTS

         On April 28, 1984, Donna Denice Haraway was employed as a convenience store clerk at McAnally's gas station and store in Ada, Oklahoma. Testimony presented at both of Mr. Fontenot's trials explained that Mrs. Haraway walked out of the store with a white male. They both got into a pickup truck and drove away. What exactly happened to Mrs. Haraway in the days and months after her disappearance remained a mystery until her remains were found in Gerty, Oklahoma, more than a year and a half after her disappearance. (Dkt.#123, Ex.# 44). Police found her skeletal remains spread across a large area that required several searches to locate. Id. The Oklahoma Medical Examiner's Office determined the cause of death was a gunshot wound to her head. Marks found on her ribs were found to be caused by animals instead of stab wounds. Id.

         APD Detective Dennis Smith, and OSBI Agent Gary Rogers headed the investigation into Mrs. Haraway's disappearance. Along with these two officers, APD Detective Mike Baskins handled key parts of the investigation, and was responsible for the McAnally's crime scene. From the period of late April until October 1984, OSBI and APD investigated many alternate suspects and leads. Sometime in late September or October, Detectives Smith and Baskins interviewed Jeff Miller who provided information gleaned from other individuals that implicated Thomas Ward and Karl Fontenot. Based on this uncorroborated conversation, police sought out Thomas Ward and then, Mr. Fontenot as their suspects.

         The case against Mr. Fontenot rests primarily on his confession given in October 1984. In his confession, Mr. Fontenot states that he, along with Odell Titsworth, and Tommy Ward robbed McAnally's, kidnapped and murdered Mrs. Haraway before burning her body. After extensive investigation into various areas around Pontotoc County, Oklahoma, the OSBI and APD were unable to locate Mrs. Haraway's remains or any physical evidence corroborating Mr. Fontenot's confession. In fact, not one detail of Mr. Fontenot's confession could ever be corroborated with any evidence in the case.

         Along with the confessions, the Pontotoc County District Attorney's case included three witnesses who arrived at McAnally's after Mrs. Haraway's disappearance. These three men testified as to what they witnessed upon arriving at the store. The witnesses said a man and a woman exited the front door and got in a pickup that was parked about 10 feet away, parallel to the door, facing east. (N/T 6/10/1988 at 60). The man had one arm around her waist. (N/T 6/9/1988 at 66) The pickup was light-colored, "late model, late '60s, early '70s," with an intact tailgate, "greenish, gray" with primered spots and "gray primer." (N/T 6/10/1988 at 40-41, 47, 59). Not realizing anything was amiss, one of the witnesses entered the store finding it empty. Soon afterwards, witnesses called the Ada police after finding the cash register open and all of Mrs. Haraway's belongings, including her purse and school books, still in the store.

         While attempting to secure McAnally's, law enforcement received reports of two men who had been at a nearby convenience store earlier in the evening. Karen Wise, the convenience store clerk at J.P. 's Pak-To-Go (“J.P.'s”), a half mile west of McAnally's, and James Paschal, a customer at J.P. 's, told police of two men who were in the store between 7 p.m. and 8:30 p.m. Ms. Wise said the men made her nervous. Both Ms. Wise and Mr. Paschal described the pickup seen with the men at J.P. 's as a "red primered truck ... mostly red primer ... [with] grey primered spots," and an "older model" Chevrolet of uniform color with a tailgate that was either missing or painted a different color. (N/T 6/9/1988 at 193, 214, 225).

         Ms. Wise positively identified Mr. Ward as one of the men she saw in J.P.'s. Id. at 185; (State's Exhibit #s 5 and 51). The second man seen by Ms. Wise at J.P. 's was 6 feet to 6 feet and 2 inches tall, white male, sandy brown hair. (State's Exhibit # 5). However, Mr. Fontenot's height is 5'9.” Neither Ms. Wise nor Mr. Paschal identified Mr. Fontenot as the second man. Ms. Wise testified that the second man she had seen on April 28, 1984, had lighter hair than Mr. Fontenot and that Mr. Fontenot was shorter than the man she had seen. (N/T 6/9/1988 at 194-195). Ms. Wise also testified that she had seen a man staring at her apartment while Mr. Fontenot was incarcerated, and she believed this man resembled the second man at J.P. 's with Mr. Ward. (P/H 1063, N/T 6/9/1988 at 197-199). Ms. Wise said this same man was a spectator at the preliminary hearing. (PH Tr. 161; F-85-769; Tr. 968-969, 981-982, 984-985; N/T 6/9/1988 at 200-202).

         Several other witnesses testified about pickup trucks seen that night having a similar description as the one seen at McAnally's and J.P.'s. However, the crux of the District Attorney's case rested on the confession and an identification by Jim Moyer, a customer in McAnally's that night.

         Based on this testimony, Mr. Fontenot was convicted in both trials and sentenced to death. His death sentence was overturned after the second trial resulting in a re-sentencing to life without the possibility of parole.[4]

         Disturbingly, the recent discovery of Ada Police Department reports contain evidence that may have changed the trial of Mr. Fontenot dramatically, including confidential letters written by Mr. Fontenot to his trial attorney, George Butner. In these letters, he provides names of people to corroborate his alibi. Additionally, he recanted his confession and detailed police attempts to make him confess while in custody. Other newly discovered exculpatory reports include a previously undisclosed handwritten report taken from Gene Whelchel about his description of the men he had seen in McAnally's. (Dkt.# 123, Ex.# 96). The report was made on April 30, 1984, two days after Mrs. Haraway went missing. It provides extremely detailed descriptions of the men, down to Suspect #2 having muscular arms, a narrow waist, and larger shoulders. He describes acne scars on Suspect #2. He describes Suspect #1 as a “neat looking guy” with an athletic build and probably right handed. These details were never provided to defense counsel and would have been essential in cross examining Mr. Whelchel and other witnesses.

         Also, recently provided to defense counsel was an interview with James Boardman, an employee with the Ada newspaper. (Dkt.# 123, Ex.# 93). Mr. Boardman was in McAnally's store at 5 p.m. on April 28, 1984, and encountered two men that in his opinion were “acting funny.” He saw Mrs. Haraway there. Ada police officers went back to Mr. Boardman after Mr. Fontenot was arrested in October 1984 and he could not identify Mr. Fontenot as one of the men he saw. Additionally, two witnesses whose names were written on the McAnally's register tape, provided almost the exact information to the Ada Police that they did to post conviction investigators when they provided their affidavits. (Dkt.# 123, Ex.# 94).

         I. MR. FONTENOT QUALIFIES FOR SUNBTANTIVE REVIEW UNDER BOTH THE ACTUAL INNOCENCE AND CAUSE AND PREJUDICE EXCEPTIONS

         A. Statute of Limitations

         Respondent alleges the Second Amended Petition is barred by the statute of limitations, pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. Section 2244(d). According to 28 U.S.C. § 2244(d)(1) a state petitioner challenging his felony conviction must file his Petition for Writ of Habeas Corpus prior to the lapse of the one-year statute of limitations. However, the U.S. Supreme Court has found this statute of limitations may be waived upon a credible finding of actual innocence. McQuiggin v. Perkins, 569 U.S.383, 133 S.Ct. 1924, 1935, 185 L.Ed.2d 1019 (2013).

         Further, numerous jurisdictions, including the Tenth Circuit Court of Appeals have found that to prevent a manifest injustice of continuing to incarcerate one who is actually innocent, a number of procedural defects will be waived. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)(allowing successive petitions with rejected constitutional claims); McClesky v. Zant, 499 U.S. 467, 494-495 (1991)(excusing “abusive petition” exception in federal habeas); Keeney v. Tamayo-Reyes, 504 U.S. 1, 11- 12(1992)(actual innocence trumps failure to develop facts in state court); Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010)(actual innocence is an exception to procedural barriers in a petitioner's case including statute of limitations); see also Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (allowing actual innocence cases to receive substantive review despite being time-barred); Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005); San Martin v. McNeil, 633 F.3d 1257, 1267-68 (11th Cir. 2011); Jones v. State, 591 So.2d 911, 915-16 (Fla. 1991) (permitting actual innocence based on new evidence in a writ of error coram nobis); In re Clark, 855 P.2d 729, 760 (Cal. 1993)(claims of factual innocence based on newly discovered evidence permitted at any time regardless of delay or failure to raise claim previously); Summerville v. Warden, 229 Conn. 397, 244 (Conn. 1994)(allowing state habeas corpus petition on newly discovered evidence of innocence even with other procedural problems); People v. Washington, 171 Ill.2d 475, 489 (Ill. 1996)(procedural due process allows newly discovered evidence of innocence at any time); Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996)(permitting a claim of actual innocence action in the interest justice); State ex rel Amrine v. Roper, 102 S.W.3d 541, 547 (Mo. 2003)(permitting actual innocence to be raised in state habeas corpus proceedings outside of the normal post-conviction avenue); State v. Armstrong, 2005 WI 119 (WI 2005)(state supreme court could use its inherent power to remedy a miscarriage of justice); Montoya v. Ulibarri, 142 N.M. 89, 97 (N.M. 2007)(allowing actual innocence claims in state habeas petition as an act of fundamental fairness). While Mr. Fontenot is filing his habeas corpus petition beyond the one-year statute of limitations, he claims he is actually innocent of his convictions and the failure to file timely was through no fault of his own.[5]

         An unexplained delay in presenting new evidence may bear on a determination of whether a petitioner has made the requisite showing to overcome the statute of limitations. However, in the instant case Mr. Fontenot did not “sit on” newly discovered evidence for over twenty years before raising these claims in state post-conviction or federal habeas corpus as the State suggests. See infra at 62-118. While records were disclosed to the Oklahoma Indigent Defense Services (OIDS) at some point after the December 1992 Oklahoma Court of Criminal Appeals (“OCCA”) order, there is no evidence that Mr. Fontenot personally knew of their existence. Further, he had no means by which he could have developed these records had he known. He could not investigate them, find witnesses mentioned in them, obtain affidavits and supporting evidence, and submit it all to a court. Given that Mr. Fontenot is learning disabled, it makes the possibility of this occurring even more remote, if not impossible.

         Further, these records were not disclosed until after his second direct appeal was almost finished. His appellate counsel's opening brief had been filed and there was no means for further factual development at that point. When the OCCA affirmed his conviction, but overturned his sentence, there was no means to develop these documents to challenge the underlying conviction. Attorney Mark Barrett, who represented Thomas Ward, Mr. Fontenot's co-defendant, removed Mr. Fontenot's files, including the OSBI reports from the OIDS office without any authorization or release from Mr. Fontenot. Mr. Barrett claims to have been representing both Mr. Ward and Mr. Fontenot, but only filed a state post-conviction brief for Mr. Ward in October 2017. Mr. Barrett never filed a state application for Mr. Fontenot. Mr. Barrett's representation of both Mr. Ward and Mr. Fontenot represents a conflict which Mr. Fontenot raised, and Respondent questioned, during post-conviction proceedings. Those questions remained unresolved at the time of the state court's order denying the post conviction application.

         Respondent also argues that Mr. Fontenot's filing of a “Reply and Motion for Summary Judgment” precludes any additional factual development in the instant federal habeas corpus proceedings. (Dkt.# 148). However, a summary judgment motion is not a waiver of any further factual development, it is a pleading that alleges there are certain issues that can be decided based on the known evidence at the time. Fed.R.Civ.P. 56. When facts are unavailable to a non-movant, the court may “allow time to obtain affidavits or declarations or to take discovery.” Fed.R.Civ.P. 56(d). Further, if a court denies the motion, it does not necessarily end the litigation. Instead, the case may continue with further factual development, including a possible evidentiary hearing, or trial. Fed.R.Civ.P. 56(g). Similarly, in post-conviction proceedings, a summary judgment motion does not preclude any further factual development. It merely suggests to the state court that there are certain issues that may be decided based on the evidence before the court at that point in time.

         In this case, it appears there was there was never any waiver of additional factual development beyond the motion for summary judgment. At the last hearing in state court, both parties sought additional factual development beyond the motion based on two grounds: a prior discovery agreement and a potential evidentiary hearing for both sides. (Dkt.# 105, Ex.# 1, Minute order). After that, Respondent had actually requested more time for discovery and in an Agreed Motion for Extension of Time asked for an extension to respond. (Dkt.# 105, Ex.# 2, Agreed Motion).

         Further, the Post Conviction Findings issued by the state court do not reach the substantive merits or address the facts of an of Mr. Fontenot's claims. (Dkt.# 99, Ex.# 8). The Court simply found: “Claim of actual innocence, ineffective assistance of counsel, prosecutorial misconduct and Brady violation could have been submitted much earlier…[s]imply, too much time has elapsed due to Petitioner's own inaction.” Id. Discovery was ongoing when the trial court's post conviction findings were entered. However, neither Mr. Fontenot, nor the Court were aware of the lack of full disclosure by the Pontotoc County District Attorney's Office that demonstrated Mr. Fontenot did not unduly delay asserting his constitutional claims. Further, there was no review of whether or not Mr. Fontenot's actual innocence in and of itself merited relief under state law. In fact, following the filings cited above, “there were no further hearings before the state court abruptly filed the two-page order denying relief on New Year's Eve 2014, the day before the state judge retired.” (Dkt.# 105, at 4). Because the state court never ruled on the motion for summary judgment, the State's reliance on it is misplaced.

         Mr. Fontenot's actual innocence is discussed infra pp. 17-48.

         B. Procedural Default

         Respondent also argues that the petition is procedurally barred by the OCCA's application of laches. Courts may not consider claims that have been procedurally defaulted on adequate and independent state procedural grounds “unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011). Specifically, Respondent contends that because the Oklahoma Courts found Mr. Fontenot had “forfeited [the] right [to have his post-conviction claims heard] through his own inaction” he should be procedurally barred from pursuing them now. (Dkt.# 148, Exhibit # 10, at 3-4)(emphasis added).

         Mr. Fontenot, however, again contends that all procedural bars have been removed because his case fits within the “actual innocence” gateway exception that would permit federal habeas review of his alleged procedurally defaulted claims, and his alleged “Brady error” serves as the “cause and prejudice” sufficient to serve the same function. Mr. Fontenot also contends Respondent cannot assert laches as an affirmative defense for undue delay when their own actions continue to subvert his ability to litigate his claims in a timely manner.

         Like the time bar applied in statute of limitation cases, in general, absent a showing of cause and prejudice, a habeas court will not entertain a claim that has been defaulted in state court because of a procedural state court bar. See Dretke v. Haley, 541 U.S. 386, 388 (2004). However, there are several narrow, but critical, exceptions to this general rule. First, the Court requires that the rule must be adequate and independent - that is, it was firmly established, regularly followed, and consistently applied at the time of the alleged default. Ford v. Georgia, 498 U.S. 411 (1991). Second, there is “a narrow exception to the general rule when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense.” Id.; see Schlup v. Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518 (2006). Third, there is an exception in claims of Brady error, where the elements of the substantive claim itself mirror the cause and prejudice inquiry and proof of one is necessarily proof of the other. See Banks v. Dretke, 540 U.S. 668 (2004). Mr. Fontenot qualifies for substantive review under both the actual innocence and the cause and prejudice exceptions.

         C. Actual Innocence

         As explained above, Mr. Fontenot's actual innocence can equitably toll the AEDPA's statute of limitations. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar…[or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The purpose of the procedural actual innocence standard is to prevent a manifest injustice of the continued incarceration of one who is actually innocent. When asserting actual innocence in federal habeas corpus, a petitioner must present newly discovered evidence that a jury did not consider during their deliberations. See Schlup, 513 U.S. at 327. Specifically, newly discovered evidence consisting of “trustworthy eyewitness accounts” and “critical physical evidence” provide the factual basis for the gateway claim. Schlup v. Delo, 513 U.S. 298, 324 (1995); see also Cummings v. Sirmons, 506 F.3d 1211, 1223-1224 (10th Cir. 2007); O'Boyle v. Ortiz, 242 Fed.Appx. 529, 530-531 (10th Cir. 2007)(discussing that petitioner must demonstrate the newly discovered evidence was not available at trial); Sistrunk v. Armenakis, 292 F.3d 669, 673 n. 4 (9th Cir. 2002); Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997). Once an actual innocence gateway is established, any procedural defects in Mr. Fontenot's constitutional claims are removed permitting this Court to evaluate each claim on its merits. See Schlup, 513 at 315. The significance of the evidence presented below casts grave doubt on the validity of Mr. Fontenot's convictions.

         Once the factual grounds of actual innocence are present, a federal court's review must assess whether “the petitioner [has shown] that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup 513 at 327; see also House v. Bell, 547 U.S. 518, 528 (2006). The Supreme Court instructs federal courts to examine the strength of the prosecution's case at trial when weighing the significance of all newly discovered evidence. See House, 547 U.S. at 539-553 (assessing newly discovered evidence within the state's theory of the case at trial). The State's theory of the case shows what evidence is significant to the jury's determination of guilt. More importantly, the state's theory of the case demonstrates the strength of the case against a defendant.

         The Pontotoc County District Attorney's Office tried Mr. Fontenot twice for the robbery, kidnapping, and murder of Donna Denice Haraway. In both trials, the prosecution's case against Mr. Fontenot rested on his confession regarding the robbery of McAnally's, the kidnapping of Mrs. Haraway from the store, and her subsequent murder. (N/T 6/14/1988 at 34-36). During trial, the prosecution acknowledged the plethora of inconsistencies between his confession and all the other evidence found in the case. A key discrepancy was Mr. Titsworth's non-involvement in the crime, although he was identified by both Mr. Ward and Mr. Fontenot in their confessions as being present during the alleged murder:

Well, what does Officer Rogers, and Officer Smith, and Officer Baskins say? It is not unusual to have them tell you part lies. I ask you to consider ladies and gentlemen, first of all, Odell Titsorth[sic] was not there. Therefore, part of the story had to be a lie. Anytime he said Odell Titsworth [sic] did anything, the rest of the story had to be a lie, because Tommy and him, one of them had to do it, what Odell, what they said Odell did. So, of course, it is going to appear there are some lies, and some mistruths and it is not going to match exactly to the facts as told by the Defendant.

(N/T 6/14/1988 at 94). Evidence showed Mr. Fontenot was unable to describe, or identify Mr. Titsworth when asked to do so by law enforcement. (J/T at 2074-75; P/H 968, 994-95). Both Ada Police Detectives Smith and Baskins admitted that nothing in Mr. Fontenot's confession was corroborated by their investigation. (P/H 546-547; N/T 6/10/1988 at 178-179). Once Mrs. Haraway's remains were found, the medical examiner's report further disproved the confession by showing the cause of death to be a gunshot wound to the head and refuting that there were any knife-marks on her ribs. (Dkt.# 123, Ex.# 46).

         In addition to the confession, the prosecution relied on two witnesses who identified Mr. Fontenot as being both at McAnally's and hanging around J.P.'s convenience store. (N/T 6/14/1988 at 21, 70-71). Those witnesses were James “Jim” Moyer (see infra at 33-37) and Karen Wise (see infra at 37-40). This was the crux of the evidence brought against Mr. Fontenot to obtain his conviction.

         The remainder of the evidence presented against Mr. Fontenot focused on his guilt by association with his co-defendant, Tommy Ward. Much of the prosecution's opening statement, closing argument, and rebuttal focused on Mr. Fontenot's guilt by association with his co-defendant. (N/T 6/8/1988 at 31-35; N/T 6/14/1988 at 17-19, 35-36, 70, 79). Instead of direct evidence inculpating Mr. Fontenot, the prosecution asked the jury to infer his guilt, based on Mr. Ward's guilt. In fact, much of the State's case focused on the witnesses who saw Mr. Ward in J.P.'s, or McAnally's, (N/T 6/14/1988 at 20-21, 27). Mr. Ward's possible possession of the knife, Id. at 17, and his family's access to a grey pickup truck. Id.

         During Mr. Fontenot's second trial, the prosecution recounted the testimony of several witnesses who had given statements to law enforcement that were never provided to Mr. Fontenot's defense counsel. Specifically, those witnesses were Janet Weldon (aka Lyon), who was Mrs. Haraway's mother; James Watt, who was Mrs. Haraway's co-worker at McAnally's; Richard Holkum, an Ada Police Officer; and Karen Wise, the sales clerk at J.P.'s convenience store. Without these witnesses' prior statements to police, defense counsel was unable to cross examine the prosecution witnesses about critical evidence that either exonerated Mr. Fontenot, or impeached the testimony of various police officers. While defense counsel presented some evidence challenging the confession, he could not provide evidence establishing Mr. Fontenot's innocence, or the inherent weaknesses in the police investigation.

         All the evidence presented at trial must be evaluated along with the newly discovery evidence presented herein. See House, 547 U.S. at 537-538. The federal court must conduct a cumulative assessment of the prosecution's evidence at trial, along with the newly discovered evidence when considering whether actual innocence is proven.

Our review in this case addresses the merits of the Schlup inquiry, based on a fully developed record, and with respect to that inquiry Schlup makes plain that the habeas court must consider "'all the evidence, '" old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under "rules of admissibility that would govern at trial."

Id.

         The investigation into Mr. Fontenot's case has revealed both documents and witness statements that prove an alibi defense, and substantiate proof of the ineptness of the police investigation. The newly discovered evidence undermines the prosecutor's weak case and provides proof of Mr. Fontenot's probable innocence. As noted supra at p. 2, “Probable innocence” is established if Mr. Fontenot presents “new facts [that] raise[] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial…” Schlup v. Delo, at 317 (emphasis added). To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327; see also House v. Bell, 547 U.S. 518, 538 (2006)(a federal court presented with a Schlup claim “must make” ‘a probabilistic determination about what reasonable, properly instructed jurors would do.'”). Once a federal court makes such a finding, a gateway claim of innocence exists removing any procedural obstacles allowing the substantive review of Mr. Fontenot's claims. See House, 547 U.S. at 536-537; Case v. Hatch, 731 F.3d 1015, 1036 (10th Cir. 2013). The evidence presented in Mr. Fontenot's Second Amended Petition puts the entirety of his case in a different light meriting the removal of any procedural hurdles.

         Some of the new evidence presented includes evidence that Mrs. Haraway was being harassed and stalked by a man in the weeks and months leading up to her disappearance. The sole eyewitness, Jim Moyer, placing Mr. Fontenot in McAnally's recanted his identification. Karen Wise, the convenience store clerk at J.P.'s was pressured by both the police and prosecution to change her description of the men she saw at her store to fit the police theory of the crime.

         Further, a medical examiner's report withheld by the prosecution shows not only a mishandling of the crime scene - a pattern in this case - but more importantly shows that Mrs. Haraway possibly gave birth to a child sometime before her death (a striking fact given she had told a friend she was pregnant at the time of her abduction). The totality of this newly discovered evidence establishes Mr. Fontenot's probable innocence. After a cumulative assessment, it is evident to this Court that, “more likely than not, no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327.

         1. Newly Discovered Evidence Establishes Mr. Fontenot's Alibi.

         Investigators knew Mr. Fontenot had told them he was elsewhere when Mrs. Haraway was abducted. Within the Oklahoma State Bureau of Investigation (OSBI) records are documents corroborating Mr. Fontenot's whereabouts the night of April 28, 1984. The defense never got these documents. The facts show Mr. Fontenot agreed to submit to a polygraph examination on October 21, 1984. Within the OSBI prosecutorial[6] submitted to the Pontotoc County District Attorney's Office is a report of Mr. Fontenot's conversation with OSBI Agent Rusty Featherstone. (Dkt.# 123, Ex.# 43, prosecutorial bates 142-143). During that conversation, Agent Rusty Featherstone reported the following:

During the pretest interview, FONTENOT indicated he has never been in the McAnally's convenience store nor even having driven by it. He has never seen DONNA DENICE HARAWAY before and does not believe he would recognize a picture of her if shown it now, although he recalls seeing a picture of a girl when she was first reported missing . . . FONTENOT recalls on the evening of Saturday, April 28, 1984, he went to the apartment of GORDON CALHOUN, arriving there at approximately dark or shortly after the kegs arrived. CALHOUN lives adjacent to ROBERTSES, where FONTENOT was currently staying. At the party FONTENOT recalls drinking and doing marijuana and then returning to the ROBERTS apartment where he slept on the floor all night. He believes he returned to the apartment between 2330 and 2400 hours that night. . .”

Id.[7] Later in the statement, Agent Featherstone stated that Mr. Fontenot mentioned a man named Bruce who was also at the party along with a Michael Shane Lindsay. Id.

         During the post-conviction investigation, it was determined the Bruce mentioned was Bruce DePrater who acknowledged being at the party and seeing Mr. Fontenot there the whole evening. (Dkt.# 123, Ex.# 8). Interestingly, Agent Featherstone found Mr. Fontenot's polygraph results were inconclusive but bordering on deceptive. (Dkt.# 123, Ex.# 44 at 605, 628)(explaining that the examiner cannot make definitive determinations on whether Mr. Fontenot was truthful or deceptive on questions about the disposal of Mrs. Haraway's body and whether he stuck her with a knife).

         Mr. Fontenot also made a handwritten statement on October 21, 1984, recanting his confession. In his letter, he said he had simply agreed with the story OSBI Gary Rogers told him and lied on the video. (Ex.# 44 at 626). He explained that he had never been to McAnally's or ever met Mrs. Haraway, and reaffirmed his presence at the party. (Dkt.# 123, Ex.# 44 at 625-627).

         What is significant is that both the OSBI and Ada Police Department had proof of this party based upon several witness reports, dispatch records, and police reports. However, this evidence was never provided to the defense. Ada Police radio logs show several calls made in response to a loud party held at Gordon Calhoun's apartment. One of the officers who responded to this call, Ada Police Officer Larry Scott wrote a report specifically mentioning the “Gordon Calhoun” party and warning the revelers to keep it down or go to court. (Dkt.# 123, Ex.# 43, prosecutorial bates 98).

         Other witnesses who knew about the party at Mr. Calhoun's apartment testified at Mr. Ward's trial, but not at Mr. Fontenot's. One of these witnesses, Stacey Shelton, not only remembered the events of that night, but remembered some of the other people present. Stacey Shelton attended the party at Gordon Calhoun's apartment. She testified at Mr. Ward's trial[8] about the party and others who attended:

Q Did you have occasion to attend a party at Gordon Calhoun's apartment on April 28th, 1984?
A Yes, sir. It was the graduation party for my younger brother, Bruce.
Q And how did you come to go to that party?
A I was at a club called LaFraqua that night and I had seen my younger brother there, and Gordon, and they told me that they were having a party at his apartment and asked if wanted to come.
Q. Now, do you recall who went to that party with you?
A Yes, sir. My roommate, Laura Ingram, my boy __ a boy I knew who I ended up, I ended up dating for two years, that was our first date, and Lyndel Gibson and his roommate. I don't recall his name. I'm sorry, it wasn't his roommate, it was a friend.
Q And did you see anyone at the party that you knew?
A My brother, Bruce, was there, Gordon was there, my next-door neighbors from my home in Konawa were there, Chris and Eric Thompson. And of course, I knew Laura and Lyndel and was familiar with the friend that Lyndel brought.
Q Now, have you seen a lady in the hall today known as Janette Roberts?
A Yes. They called her "Red". She was at that party, yes.
Q. You saw her at the party also?
A. Yes, I did.
Q. Now, do you recall about what time you got to the party?
A. It was late. The club didn't close until midnight, and I want to say that that is about the time we went, around that time, somewhere. I knew that it was late.
Q. All right. Did you see the Defendant, Tommy Ward, at that party?
A. I can't say positively that I did, no. There were probably twenty to twenty- five people there and, like I said, the only ones I knew were about six or seven people.
Q. All right. Now at the time of the first trial of this case, who were you working for?
A. A radio station in Ada, KADA Radio.
Q. And what were you doing for them?
A. I was a news anchor and reporter.
Q. And did you attend that trial?
A. Yes, sir, I did.
Q. And did anything happen in that trial to surprise you?
A. Yes, sir. I viewed a videotape where Mr. Ward was talking to some detectives and he told them that the night that Denice Haraway was taken, he was at a party and he started describing in minute detail about the party. He told of my little brother playing the electric guitar and Gordon was playing on the drum set and of two guys from Konawa asleep in the bedroom and also told of the police coming about 1:00 o'clock in the morning telling us to quiet down. And the minute I saw that, I knew that he had been there to know that.
Q. Now, did you know who these people from Konowa were?
A. Yes. They were Chris and Eric Thompson. I grew up next door to them.
Q. Now, did you see them asleep at that party?
A. Yes, sir, I did.
Q. And where were they asleep?
A. In the bedroom. One was on the bed and one was on the floor.

(Ward Vol. 10, at 193-195). Ms. Shelton had told the police and prosecution that she was at the party and knew who was there. Instead of notifying George Butner, counsel for Mr. Fontenot, of evidence supporting Mr. Fontenot's alibi, the prosecution's reaction to her information was to pressure her to recant.

As I was watched the video, I realized that Ward was referring to a party I had attended at Gordon Calhoun's house. My brother, Bruce DePrater, was from Konawa and had been playing the guitar and Gordon had been playing the drums. Ward has also eluded to the fact that there were two other boys from Konawa at the party who were passed out on a bed. Those two boys were my childhood neighbors, Chris and Eric Thompson. I remembered them being at the party and indeed, they were passed out on a bed in an adjacent room to the living room.
I also remember Janette Blood being at the party with several of her friends. At the time, I did not know who she was or her name, but, I remembered her specifically because after I remarked that everyone needed to lower the noise because of the warning from the police, she came up to me and yelled in my face. She was easy to remember because of her flaming red hair and missing teeth. It was only at the trial, when she testified that I learned her name.
I specifically remember the night of the party as Saturday, April 28, 1984. First, my brother had invited me to the party after seeing me with my roommate Laura Ingram, and my date, Lyndel Gibson, at a local dance club. All three of us went to the party with the intent of only staying for a short while. It was the first time I had gone out with Lyndel, who I ended up dating for the next two years. It was the one and only time I went to Calhoun's house. I kept a calendar, almost like a diary, of everything I did. I wrote it in my calendar the following day. Also, during that time, I never went out on Friday nights because I worked on Saturday mornings and liked to go to bed early.
The police should have been aware of the date of the party since they arrived at the house a couple times to quiet the party. However, the police would not have been aware of everyone at the party. I know this because my friend, Laura and I were hidden in a different part of the house when the officers arrived and never interacted directly with them. After watching the video of Tommy Ward describing the April 28, 1984, party, I left the courtroom and approached Dennis Smith. I told him that there was no way Ward would know details about the party unless he was there. Smith told me that anyone could have told him about the party. I argued with him that Ward would not have known all the details that he spoke about if someone had just told him about it. He said to me, "I don't want to hear it," and turned and walked away.
I later informed Mike Baskins about the accuracy of Ward's description of the party that night. I insisted that Ward and Fontenot couldn't have committed the crime since they were at the party that night. Baskins argued with me concerning the validity of the alibi, claiming that police logs showed that the party actually took place on a Friday night. I knew that could not have been correct and several years later, I discovered that the police log actually showed that the party was, in fact, on Saturday night.
At the second trial of the defendants, I testified for the defense, verifying that Tommy Ward's details matched what I had seen at the party.
After testifying at the trial, I was confronted by Bill Peterson who brought me into an office he and Chris Ross were using within the courthouse. Once I was there, Peterson told me I was to get back on the stand and recant my testimony. I told him I wouldn't do it because I had told the truth. He made me stay in the office for about half an hour and then came back in with what he told me were trial transcripts. He ordered me to read them. I did and then he yelled at me saying that I was lying because, he said, the transcripts didn't match my testimony. Again, he demanded that I return to the stand to recant my previous testimony and again, I refused telling him that while not everything I testified to was in the transcript he showed me, that I clearly remembered what took place that night and I clearly remembered seeing the tape sometime during the preliminary hearing or trial, although I could not recall exactly which one.
Peterson was extremely volatile during the course of this confrontation. He slammed his fist on the desk. He slammed the transcript on the desk. He was red faced and yelling almost to the point of spitting. He insisted over and over again that I go "back on the stand and testify that everything you said was wrong."
Because I refused, he told me I was not to leave his office until I agreed to recant. I stayed in the office for several more hours while the trial continued. He would come into the office during breaks and again demand that I retake the stand, which I refused to do. At the end of the day, he let me go, but told me I was to return every day until I agreed to recant. He told me he was going to recall me and rip my testimony to shreds and although I returned each day of the trial and was made to sit on a bench in the hallway until the trial concluded, he never recalled me, and I refused to go on the stand of my own accord and recant.
Peterson left me with the impression that if I did not remain in his office the first day or return the following days that I would be jailed. I missed several days of work because of it.
I interpreted all of the foregoing actions by Peterson as intimidating, although I continued to stand by my testimony.

(Dkt.# 123, Ex.# 12) (emphasis added). While Ms. Shelton could not remember specifically Mr. Fontenot being at the party, her knowledge of who else was present provided new evidence supporting Mr. Fontenot's alibi. Specifically, she named her brother, Bruce DePrater, and Eric and Chris Thompson as being at Mr. Calhoun's apartment.

         When interviewed, Mr. DePrater not only remembered the party but knew Mr. Fontenot:

Sometime prior to this party, I recall traveling to Texas with Gordon Calhoun to purchase one or two kegs of beer, and probably some cases of beer. The alcohol content for beer sold in Texas was higher than that of beer sold in Oklahoma, making 'Texas Beer' more desirable.
I recall Eric and Chris Thompson, from Konawa attended this party. I recall that Eric Thompson had passed out early that night; but, during the daylight hours I witnessed an incident between Eric Thompson and Karl Fontenot while they were both standing around talking at Gordon Calhoun's party. Karl Fontenot was refilling a beer can from the keg's spout and joking to Eric that he (Karl) was only having one beer.
Later that same night, probably around 11 pm or shortly thereafter, I recall planning a trip to La Fragua, a college bar in Ada, with Chris Thompson. Chris and I wanted to visit the bar and invite women to come back to Gordon's keg party. On the way out, I recall mentioning this plan to Karl Fontenot, who responded by making an inappropriate gesture involving the tugging upward on his belt, while commenting verbally that he and Tommy had already been with an older woman that evening.
At La Fragua that night, I recall seeing my sister Stacy Deprater. She was with her friend Laura Ingram and on a date with Lyndel Gibson. Surprisingly, my sister Stacy and her friend and date came back to Gordon Calhoun's party that night, after La Fragua closed at midnight.
Later that same night, after my sister and her friends had gotten to Gordon Calhoun's party, I recall playing guitar while Gordon played his drums. While we were both playing loudly, someone announced that a police officer was coming up the stairs to Gordon's apartment.
Almost simultaneously, I recall Karl Fontenot running by me telling me to follow him, that he knew a good place to hide. I had no reason to hide, and to this day, I don't know why I followed Karl Fontenot into this strange hiding place, but I did. Karl showed me a hidden passageway, which seemingly connected Gordon Calhoun's kitchen with his neighbor Janette's apartment. This passageway was hidden behind Gordon's refrigerator. That is where Karl and I stayed until the police officer left.
I believe each of these incidents occurred on the same night, during the same party at Gordon Calhoun's apartment sometime during the spring of 1984.

(Dkt.# 123, Ex.# 8). Along with Mr. DePrater, Eric Thompson also remembers Mr. Fontenot being at the party that evening. (Dkt.# 123, Ex.# 9). Such information was crucial to Mr. Fontenot's defense at trial because it established his whereabouts for the night; precluding the belief he was involved in Mrs. Haraway's abduction.

         Mr. Fontenot recanted his confession shortly after he gave it. (Dkt.# 123, Ex.# 44 at 626). More importantly, in both his interview for the polygraph and afterwards he provides as much information as he can about a party he attended six months prior. Given that the videotape confession of Mr. Fontenot only contains the confession and not the interrogation that occurred beforehand, his statements providing his whereabouts to law enforcement are critical new evidence. The prosecution failed to disclose these documents to Mr. Fontenot's trial attorney, George Butner.

         The OSBI records that were withheld from defense counsel document Mr. Fontenot's alibi and his recantation and are important for two reasons. First, these documents provide independent corroboration of any conversations between Mr. Fontenot and his trial counsel. Given that he never testified at any hearing, these documents would impeach Agent Rogers' and Detective Dennis Smith's testimony about the veracity of the confession. Both law enforcement officers admitted that nothing in the confession could be substantiated. Therefore, OSBI reports reflect that Mr. Fontenot denied any involvement and told officers about the party with specific names of people in attendance shows substantial flaws in their investigation.

         Second, these reports provide new investigative leads defense counsel could have followed. Had Mr. Fontenot's defense been given this information, they could have investigated the people who attended Mr. Calhoun's party the night of April 28th. These people remember seeing Mr. Fontenot from the very early part of the evening until much later into the night. Their accounts clearly show that at no time did Mr. Fontenot leave to participate in whatever transpired with Mrs. Haraway. Affidavits from party-goers, Eric Thompson, Bruce DePrater, and Stacey Shelton along with police reports from Janette Blood place Mr. Fontenot at the party for the entirety of the night.

         2. Donna Denice Haraway was being Harassed by an Unknown Man.

         The Pontotoc County District Attorney maintains it did not have most of the OSBI and other law enforcement records made during the investigation into Mrs. Haraway's disappearance and murder. Amongst those records not turned over to the prosecution or defense counsel include OSBI reports about witness accounts to police detailing Mrs. Haraway's statements to them about how she received obscene telephone calls during her shifts while working at McAnally's. According to a co-worker, these calls had stopped for a period in the early months of 1984, but began again in the weeks leading up to her disappearance. (Dkt.# 123, Ex.# 62). Mrs. Haraway told the witness that the male caller telephoned the store during her shifts in the evenings from Thursday to Sunday. Id.

         Mrs. Haraway's mother, Janet Lyon, also told police that her daughter had told her about the calls and said that she feared these calls and did not like working at McAnally's. These calls, greatly distressed Mrs. Haraway, her family, and co-workers.

According to Janet, Donna told her on the phone she hated working at the store because it did not have an alarm and a lot of weirdo's come in and out of the store. She told Janet that she was going to look for another job because she felt uneasy working at the store alone at night. She told Janet that the phone calls had started again but didn't go into the whole story. Janet said that earlier Donna had been receiving calls at work from a man that said he was going to come out to the store some night and wait outside while she was working. She said that Donna was upset because she had asked for the night off and a guy refused to work, and she had to work anyway.

(Dkt.# 123, Ex.# 43, prosecutorial bates 20, 109)(emphasis added). OSBI Agents received similar information from the store manager, Monroe Atkeson, about a conversation he had with Steve Haraway, Mrs. Haraway's husband.

         Mrs. Haraway's husband, Steve, also told police about the harassing phone calls his wife received. On the night of her disappearance, the police spoke with Steve Haraway who told them: “Steve received a phone call from the police who told him that his wife was missing. He knew of no one that Donna was having problems with at the store, other than she had received two to three obscene phone calls at the store. The last phone call was two or three weeks prior to her disappearance.” (Dkt.# 123, Ex.# 43, prosecutorial bates 20).

         OSBI Agents received similar information from the store manager, Mr. Atkeson when agents interviewed him on April 30, 1984. He recounted a conversation with Steve Haraway about a Vietnam Veteran that had been harassing Mrs. Haraway. (Dkt.# 123, Ex.# 44, OSBI 0006). She received several obscene telephone calls during her shifts. Id. Mr. Atkeson told police he had seen the veteran that Steve spoke of who was described as a white male, six feet, 190 pounds, black hair, brown eyes, mustache, light complexion, who usually drove a white Chevrolet Chevette and bought a soft drink. Id. Mr. Atkeson believed that the veteran attended a rehabilitation school in Okmulgee. Id.

         James D. Watts, a co-worker of Mrs. Haraway's from McAnally's had also given police a statement about the obscene phone calls that Mrs. Haraway had received, a statement that likewise was not produced to the defense. Mr. Watts gave a statement to Pontotoc County District Attorney's Office investigator Lloyd Bond on July 25, 1985. Mr. Watt explained that “Denice had told me of some obscene phone [calls] she had received at the store for a while, these calls upset her a great deal. She could not recognize the voice over the phone. The calls stopped about one month before she disappeared.” (Dkt.# 123, Ex.# 62).

         Other individuals were not interviewed by police who had knowledge about the impact these calls had on Mrs. Haraway. Anthony Johnson, a frequent customer at McAnally's, remembered a conversation he had with Mrs. Haraway a week before her disappearance.

Johnson is a co-worker with Tommy Ward's sister, Tricia Wolf in an Ada, Oklahoma plant. Johnson admitted to this investigator that one week before Haraway's disappearance he was in the McAnally's convenience store when Haraway asked him where she could buy a gun. Haraway referenced the need for a gun with some funny calls she had recently been receiving. Haraway said she didn't really know who was making the calls, and that the caller never really said anything, just did some heavy breathing on the phone. Johnson asked Haraway if she had any ex-boyfriends that could be making these calls and said that in Johnson's opinion, she knew who was making the calls but did not seem to want to indicate who it was.

(Dkt.# 123, Ex.# 22). Further, just two days before Mrs. Haraway went missing, she spoke with Darlene Adams, another customer at McAnally's. Mrs. Haraway explained she was afraid of working nights at the store, but her schedule would not be changed. (Dkt.# 123, Ex.# 1).

         It is unclear whether the Ada police or the OSBI ever investigated who was making these calls to McAnally's. No telephone records were obtained of incoming calls to the convenience store according to the disclosed OSBI reports. No witnesses were interviewed regarding men who may have hung around the store or watched Mrs. Haraway in the months and weeks leading up to her disappearance. Obviously, whomever was making these calls knew her work schedule because the telephone calls occurred only during her shifts. (Dkt.# 123, Ex.#s 15 & 44, OSBI 0006). The man making these calls targeted Mrs. Haraway and had been doing so for an extended period of time before her abduction. Id.

         This newly discovered evidence was not presented to either of Mr. Fontenot's juries because the prosecution failed to disclose it to defense counsel. Beyond the failure to disclose, this evidence illustrates the defects in the police investigation into Mrs. Haraway's disappearance. This evidence should have been investigated in 1984, given this evidence was willingly provided by those closest to Mrs. Haraway either on the night of her disappearance, or within a day or so of it. This is not a situation where only one person made a comment about a few suspicious telephone calls. Instead, numerous people including her husband, manager, co-worker, customers, and mother were aware of this conduct and recognized its obvious relevance to the case. They immediately shared this information with police in the hopes that it would assist in their investigation into her mysterious disappearance. Instead, the police ignored it and the prosecution withheld it from Mr. Fontenot's defense.

         3. The Only Eyewitness Who Identified Mr. Fontenot Recants His Identification.

         Jim Moyer is the only witness who placed Mr. Fontenot in McAnally's the night of Mrs. Haraway's disappearance. Mr. Moyer's account of that night changed over time. From his first interviews with the Ada Police to his testimony at the preliminary hearing and trial, he was not consistent. (Dkt.# 123, Ex.# 102). He testified that he saw both Tommy Ward and Mr. Fontenot in McAnally's shortly before Mrs. Haraway's disappearance. (P/H at 213-214). He testified that while talking to Mrs. Haraway during his purchase of cigarettes, he saw two men walking into the store; one man with dark hair while the other one was blond. (P/H at 218-220). However, this testimony is not what he originally told police in 1984. He was interviewed twice by Ada Police. The first time was on April 30, 1984, by Ada Police Officer Barrett:

MOYER advised he went to McAnally's at 7:30 p.m., Saturday, 4-28-84. A pickup pulled in faceing [sic] the building between the door and the ice machine. A dark- haired guy came in the store first, then a blond haired guy came in later. MOYER left approximately one minute after they came in. The pickup was about a 67-69 Chevrolet, light gray, rough looking. MOYER glanced at the tag but cannot remember it. The pickup may have had a trailer hitch on it.

(Dkt.# 123, Ex.# 102). His second interview with Ada Police Officers D.W. Barret and Fox, he told a completely different story.

On 11-6-84 Dets Barrett and Fox went to Martins Phillip 66 station on Arlington and talked to Jim Moyer. Mr. Moyer said he went to McAnally's on Arlington about 7:30 p.m. on 4-28-84. Mr. Moyer said there was a dark haired male at the back of the store, but he did not get a very good look at him. While Moyer was at the counter talking with Denice Haraway a second male came in the door and walked past him. This person he described as being blond headed and of average height and weight. Moyer said he stayed in the store only a minute or two after the second subj. came in. As he was leaving he saw a pickup parked into to the curb facing the store. He only knew it was prior to a 1971 model and was a Ford or a Chevy. Moyer looked at the picture lineups and said the pictures that most resembled the men he saw was #1 in the Ward folder and #2 in the Titsworth folder.

(Dkt.# 123, Ex.# 102). These Ada Police Reports should have been made available to defense counsel during pretrial proceedings in both 1984-1985, and prior to Mr. Fontenot's second trial in 1988. As such, it is a Brady violation for failure to disclose impeachment evidence and prior inconsistent statements. Further, this report was just made available in the instant proceedings in 2019.

         Not only was the sequence of events from the men being in the store different than his testimony, but he was not shown Mr. Fontenot's photospread. As the prosecution relied upon him to put Mr. Fontenot in the store, it is interesting that he was not asked to identify him during his interview. Mr. Moyer's account of his time in McAnally's is widely inconsistent from his original interview, through his preliminary hearing and trial testimony.

         Mr. Moyer identified Mr. Fontenot in the courtroom as the dark-haired man who walked towards the back of the store. (N/T 6/9/1988 at 16). But during cross examination, Mr. Moyer admitted doubts about his identification of Mr. Fontenot.

Q. All right. You have had an opportunity at Preliminary Hearing to stand next to and look at the height of Karl Fontenot, didn't you?
A. Yes.
Q. And as I recall that, Mr. Fontenot was two to three inches shorter than you were. Is that correct?
A. Yes.
Q. Okay. so, if you were, in fact, five ten, Mr. Fontenot would be five seven to five eight. Is that correct?
A. Yes.
Q. Okay. And, in fact, then to be taller than you, he would have to have heels on his boots about three to four inches tall, but even to reach a six- foot height, the composite reflects he would have to have five to seven inch boots then. Is that correct?
A. To match that height, yes.
Q. And after you came up here to Preliminary Hearing, had an opportunity to look at the height of Mr. Fontenot, had an opportunity to look around the courtroom, sometime after the Preliminary Hearing you became convinced that Karl Fontenot was not the man, didn't you?
A. I became confused about it.
Q. You became so confused or convinced that you attempted to contact the District Attorney's Office and say that Karl Fontenot was not the second man, didn't you?
A. At a time, yes.
Q. Okay. All right. In fact, you tried to get a hold of the District Attorney all summer to tell him that, didn't you?
A. Yes.
Q. Okay. The District Attorney wouldn't return your telephone calls would he?
A. Well, I never left my name.
Q. Okay. so, you just called the District Attorney's Office for a couple of months during the summer and never left your name. Is that right?
A. Yes.
Q. All right. You believed, Mr. Moyer, that there was someone sitting in the back of the courtroom that was more familiar to you that evening as being in McAnally's on April 28th, 1984, didn't you?
A. Yes.
Q. Okay. And you did that because of the fact that this gentlemen was wearing boots, you saw those out in the hall, didn't you?
A. Yes.
Q. His hair was longer than Mr. Fontenot's?
A. Yes.
Q. He was much taller than Mr. Fontenot?
A. Yes.
Q. Okay. And, in fact, you became convinced that that was, in fact, the second man, didn't you?
A. Well, I don't know if I was convinced about it.

(N/T 6/9/1988 at 24-26). His doubts make sense in the context of his initial interview where he was never asked to identify Mr. Fontenot and his time of actually viewing either man in the store was seconds at most. However, Mr. Moyer clarified his position from Mr. Fontenot's trial in 1988. When interviewed during post-conviction he now asserts:

While at the courthouse testifying in the preliminary hearing, I saw a man in the back of the courtroom I had seen before. I also saw him downstairs, where I had been waiting to testify. I also saw this man speak to Tommy Ward during the preliminary hearing. It came to me that this was the same man I had seen in McAnally's with Tommy Ward. He looked more familiar to me. I was no longer one hundred percent sure about my identification of Karl Fontenot.
After that, I tried to call Mr. Peterson, the District Attorney, to tell him I was no longer one hundred percent sure that Karl Fontenot was the man I had seen in McAnally's that night. In fact, I was leaning more in the direction of Steve Bevel, the man I saw at the courthouse. While I was never able to speak with Mr. Peterson, I did speak with someone else in the district attorney's office. I told this person of my concern. This person said to me, "It was not him (Bevel)."
After that, I was afraid to change my story. I felt pressure from both sides. I overheard the lawyers argue about the content of the story I had given to Richard Kerner, an investigator working for Mr. Wyatt, while I was on the stand. On one hand, I felt betrayed by Mr. Kerner, as he tape-recorded our conversation without my consent. On the other hand, I felt like it was Steve Bevel that I had seen with Tommy Ward that night. I felt conflicted. I chose to then state that I was confused about the identity of the man with Tommy Ward.
I am now convinced that my assessment, at the time of the preliminary hearing, that Steve Bevel was the man with Tommy Ward, was correct. I am confident that Karl Fontenot was not the man I saw at McAnally's. The man I saw at McAnally's was definitely taller than Karl Fontenot and had much more intimidating look about him. At this time, I am about 95% sure that it was Steve Bevel, not Karl Fontenot, that I saw in McAnally's on April 28, 1984.

(Dkt.# 123, Ex.# 14)(emphasis added).

         When Mr. Moyer told the prosecution he was unsure about his identification of Mr. Fontenot, he was told he was wrong in his identification of Mr. Bevel. See also Ward Vol. 3 p. 97-99, “Not positive about the dark- haired person.” Mr. Moyer's uncertainty as to whom he saw in McAnally's with Mr. Ward casts further doubt of Mr. Fontenot's involvement in this crime. Without Mr. Moyer's identification, no evidence places Mr. Fontenot in McAnally's besides the false confession.

         4. Law Enforcement Pressured Karen Wise to Change Her Account of What Transpired in J.P.'s Convenience Store.

         Karen Wise was a crucial witness not only for the investigation into Mrs. Haraway's disappearance, but for the prosecution of Mr. Fontenot. After going to McAnally's in response to the initial report that Mrs. Haraway was gone, Ada Police Detective Mike Baskins travelled to J.P.'s to inquire about the men who had been reported as rowdy earlier in the evening. When Detective Baskins arrived, Ms. Wise told him how two men were in the store that night harassing her. Both men came up to the counter several times to get change for the video game machines and buy alcohol. (N/T 6/8/1988 at 161-162). She described the two men as follows: a blond male 5'8” tall dressed in a white t-shirt and jeans with his hair parted in the middle. The second man was a bit shorter than the blond with dark, shoulder length hair also dressed in a t-shirt and jeans. (Id. at 165-166). Law enforcement, with no indication that the men seen in J.P.'s were connected in any way with McAnally's, decided to construct composites of the two men from Ms. Wise's description. Id. at 167; see also (Dkt.# 123, Ex.#s 76-77). These composites became the suspects for the crux of law enforcement's investigation.

         However, despite the composites and descriptions, Ms. Wise never identified Mr. Fontenot as one of the men she saw at J.P.'s on April 28, 1984. (N/T 6/8/1988 at 177 & 193-194). Mr. Fontenot was both shorter and had lighter hair than the man accompanying Mr. Ward. Further, when shown Mr. Fontenot's line-up, she was unable to identify him. (Dkt.# 123, Ex.# 43, prosecutorial bates 138, 0377). While the Ada Police Detective Dennis Smith testified that Ms. Wise called him after the line-up and identified Mr. Fontenot, there was no police report supporting the subsequent identification.

         Creating more doubt is Ms. Wise's affidavit that she saw four men in J.P.'s on April 28, 1984, rather than two men that became the center of the prosecution's theory of the case.

That evening, after reports that Denice Haraway was missing, I was interviewed by the police. They asked me to help them construct composite drawings of two young men who were in J.P's that night. At first, I didn't want to help with the drawings. I told police that just because they were in J.P's didn't mean they had hurt Ms. Haraway or taken her anywhere. I said they were just kids.
Another reason I didn't want to help with the drawings at first was that there were four men who were at J.P.'s at the same time. The police wanted drawings of only two men. I told police that there were two other men present, but police insisted that there were only two men.
I was particularly nervous because of two other men in the store that evening. I knew them. They were in the store that night during approximately the same time as the men who were later reported to be Tommy Ward and Karl Fontenot. I told police - on April 28, 1984 - that there were four men hanging out around the store for an extended period of time, instead of two. I told police that I recognized two of the men and knew their names and did not know the names of the other two.
Prior to the first trial (the trial at which Tommy Ward and Karl Fontenot were tried together), I met with Bill Peterson, at his request, to discuss the case with him in preparation for my testimony. l told Bill Peterson that the other two men were in J.P's at the same time as the two persons in the sketches. I told him I was afraid of the other two men because of the way they were behaving in the store. Bill Peterson said he already had the "ones who did it." I told him the names of the two men I knew were in the store. Those two men were Bubba Daggs and Jim Bob Howard. Bill Peterson said that Jim Bob Howard couldn't have committed the murder because he "didn't have the I.Q. of a grub worm."
Bill Peterson said that I couldn't bring up in Court that Jim Bob Howard and Bubba Daggs were with the other two men. He said it couldn't be mentioned because it wasn't relevant. I was not at all comforted by that because I didn't think Peterson had all of the people that might have been involved.
It bothers me that I couldn't discuss the other two men, because I don't think all of the truth came out. I never mentioned to the defense directly anything about the other two men, except to the extent my June 8, 1988 testimony made reference to them. (See paragraph 10). I got the impression from law enforcement that I wasn't supposed to talk about the other two men. It was not until a number of years after all the trials were over that I finally mentioned the other two men to representatives of Ward and Fontenot.

(Dkt.# 123, Ex.# 13) (emphasis added). The police investigation focused on the wrong suspects from the beginning in both number and description. That four rambunctious men were in J.P.'s on a Saturday night is in no way relevant to the events of McAnally's where eyewitnesses repeatedly told police they saw one man walking out of the store with Mrs. Haraway. (N/T 6/9/1988 at 38, 40, 47-48, 51, 59-60). Like Mr. Moyer's experience, when Ms. Wise tried to clarify what she saw to prosecutors, she was pressured to change her story to conform to what the State sought to present. This pattern of police and prosecutorial misconduct permeated the case against Mr. Fontenot.

         Ms. Wise shared her frustrations over the improper tactics of law enforcement. She told her best friend, Vickie Jenkins, what she truly saw and her interactions with the state:

She advised that Wise was sure Ward was in J.P.'s this evening along with three other males. Wise said Ward kept watching her all the while he was in the store which made Wise uneasy. Jenkins believes that another J.P.'s employee, one Jack W. Paschall, East of City, telephone 436-1611, pointed out the suspect truck to Wise. Jenkins further related that Wise was upset about the composite drawings because the police just weren't doing them right. She did not know what was being done wrong with these drawings. Jenkins and the owner of J.P.'s related that Wise was very upset with the Ada Police over this investigation because they have harassed her over and over and made promises to her that were broken. Jenkins knew nothing about Wise saying that the two guys she observed coming into the store after Ward was arrested.

(Dkt.# 123, Ex.#s 23 and 3 at 2, 10-11) (emphasis added). Both Ms. Wise and Ms. Jenkins further substantiate the improper actions of law enforcement in dealing with witnesses in this case. Like Ms. Shelton and Mr. Moyer, Ms. Wise was pressured to conform her true account of what transpired to an improbable theory with no connections to the facts and no evidentiary support. Instead of focusing on the facts and evidence gleaned from McAnally's, the actual crime scene, police almost immediately generated two suspects matching descriptions of two of the four individuals in J.P.'s with no evidence that these men were seen at the crime scene.

         5. Numerous Inconsistent Statements about the Gray Primered Truck

         The prosecution's theory of the case rested on both Mr. Ward and Mr. Fontenot forcing Mrs. Haraway into a gray primered pickup truck and driving off with her. (N/T 6/8/88 at 32-33). During closing arguments, the prosecution recounted several witnesses' testimony about seeing the gray pickup the night of April 28t. (N/T 6/14/88 at 17, 22, 27, 68, 75, 85, & 93-95). However, there was little consistency between witnesses as to what type of truck was seen. Specifically, there was considerable differences in the size, color, body type and tire size depending on the person questioned. Mr. Fontenot's defense counsel was unable to cross examine many prosecution witnesses about their inconsistent statements about what the gray pickup truck looked like.

         The official OSBI description of the pickup was an early model “Chevy pickup truck w/light gray primer color, narrow bed w/oversized tires on rear; rear end was jacked up.” (Dkt.# 123, Ex.# 44, OSBI 0004). This description was distributed to the FBI and numerous counties and states on April 29, 1984. Id. One problem with this description is that it did not provide the specific year of the pickup truck. For example, Chevrolet pickup body styles changed greatly from the early 60's to the 80's. (Dkt.# 123, Ex.#s 82-84). Because of the numerous types of Chevrolet pickups on the road during that time, and likely being driven in Ada during that time, specificity was critical to identifying the correct pickup seen by witnesses. Instead, there were conflicting reports of the pickup described by three witnesses who first saw the suspect and victim leave McAnally's.

         Lenny Timmons described the truck as a green and gray, older Chevy pick-up that was not well maintained. (Dkt.# 123, Ex.# 44, OSBI 0842). Further, the rear wheels or tires were plain. Id. David Timmons thought the pickup was blue, rough, and had dents on the side. The rear bumper was white, possibly raised in the rear. (Dkt.# 123, Ex.# 44, OSBI 0851). Gene Whelchel said the pick-up was full sized and light colored. He suggested it might be an early 1970s model, but he was sure it was not a narrow bed. (Dkt.# 123, Ex.# 44, OSBI 0060). These three men reported seeing Mrs. Haraway get into the pick-up truck with a white male. (Dkt.# 123, Ex.# 44, OSBI 0061-0063). However, their descriptions not only conflict with each other but with the official description used by OSBI. See Dkt.# 123, Ex.# 21, explaining the difficulties encoding memories for various events.

         The prosecution's theory relied on other witnesses who supposedly saw the same pickup truck driving around town the night of Mrs. Haraway's disappearance. OSBI reports state that James Moyer, described the pickup truck as light gray, rough looking, a 1967 to 1969 Chevy pickup. (Ex.# 44, OSBI 0245; Ex.# 82). However, his trial testimony was not nearly as specific.

Q. Okay. And did you see what kind of vehicle these two people drove up in?
A. Yes. It was a Chevy pickup, gray primered.
Q. Okay. And do you have any way of knowing what year it was?
A. I'm not too good on years on Chevy pickups. It was . . .
Q. Okay. That's fine. Do you recall whether it was a painted pickup or a primered pickup?
A. It was primered. It was a flat color, not a glossy color.
Q. Okay. It was a gray primered Chevrolet pickup?
A. Yes, sir.

(N/T 6/9/1988 at 16). Because they had not been given Mr. Moyer's statement to police, defense counsel was unable to cross examine Mr. Moyer on his inconsistent statements concerning the truck, which was a critical part of the prosecution's case.

         The descriptions of the pickup truck from J.P.'s employees conflict with those from McAnally's witnesses. For example, Karen Wise told the police the truck was an older model, short bed, with maybe a step side, “light color spots” on the driver's side door and bed, with a darker color - possibly reddish brown primer on it. Most of the pick-up was “primered.” (Dkt.# 213, Ex.# 44, OSBI 0058-0059; Ex.#s 82 and 83, examples of possible truck body styles). The truck had wide back tires and possibly a loud exhaust. Id. At trial, she testified:

Q. And do you recall how these two individuals arrived at your store, how they got there?
A. I didn't really realize until the customers kind of let up some, until I saw what cars was still there. There was a pickup truck parked out front.
Q. And do you recall the color of it?
A. It was red and gray primered colored.
Q. Okay. The entire driver's side or just from the door back or from the back door back or - A. Well, all I can basically remember is from the driver's side door back, because that was where it was real spotty, it was some red and some gray and that is the only reason I remember that.

(N/T. 6/8/1988 at 162). As in Mr. Moyer's testimony, Ms. Wise's police report varies in details that would have aided a jury in assessing whether these people were talking about the same truck.

         Jack Paschal, who was in J.P.'s that evening, saw the men in the back of the store. He also described the pick-up truck. He told police it was an older model, maybe a mid-60's to early 70s Chevy with primer paint on it. (Dkt.# 123, Ex.# 43 at 10, 63). He thought the tailgate was either bent badly or missing. Id. His trial testimony is mostly consistent with the description provided to the police including his inability to make out the truck's color due to the lighting at the store. (N/T 6/8/88 at 214-215). However, it does not coincide with the description provided by OSBI, or McAnally witnesses.

         The conflicting accounts of the pickup truck are critical evidence casting doubt on whether these prosecution witnesses saw the same truck, or many trucks that happen to look alike. The prosecution's theory of the case focused on a gray primered truck being used in the abduction. If the defense had the opportunity to point out the numerous police reports of these witnesses providing conflicting descriptions of the truck, it would have cast significant doubt on whether the truck was used at all since it was never located.

         As exhibit numbers 82-84, attached to the Second Amended Petition illustrate, Chevrolet manufactured several body styles, cab sizes, and bed sizes from the 60's up to the early 80's. (Dkt.# 123, Ex.#s 82-84). At no time did law enforcement show these witnesses pictures of trucks to make sure they identified the correct model. Failure to glean cohesion in a crucial piece of evidence in the police's investigation demonstrates another example of the poor quality of the police investigation in this case. There was no connection between a truck seen at McAnally's and the one seen at J.P.'s earlier that evening. Yet, the lead detectives and prosecution insisted that such a connection existed regardless of the numerous versions of what the truck looked like. Had a jury known about the high number of inconsistencies in truck descriptions, it would have created doubt as to the prosecution's witnesses who later testified they saw several men in grey pickup trucks near the power plant. (N/T 6/8/1988 at 33-35). Jurors could also conclude that alternate suspects may have had more motive to commit this crime than Mr. Fontenot, who had no interaction with the police until October of 1984.

         6. Undisclosed Portions of the Medical Examiner's File

         The skeletal remains of Donna Denice Haraway were found in Gerty, Oklahoma in January 1986, while Mr. Fontenot's initial direct appeal was pending. (Dkt.# 123, Ex.# 46, at 1). The location where the body was found is on the opposite side of the county from where Mr. Fontenot confessed to leaving the body. Further, how the bones were found, ultimate determination of the cause and manner of death did not match any details of his confession. The State's theory, based solely on Mr. Fontenot's confession, argued that Mrs. Haraway was robbed, kidnapped, and murdered with a knife. (N/T 6/8/1988 at 33-35). She was supposedly stabbed numerous times, her remains were burned and left at a power station west of Ada. (J/T 2593-94, 2735-36, 2742-43). However, both the location of her remains and the medical examiner's report disproved his confession. A full review of the medical examiner's report documents the cause of death as a single gunshot wound to the head. (Dkt.# 123, Ex#. 46, at. 1, 3, 12, 40). There were no knife wounds on any of the bones uncovered at the Gerty crime scene. (Dkt.# 123, Ex.# 46, at 20, 36, 40).

         While certain parts of the medical examiner's file were released to Mr. Fontenot's initial direct appeal counsel, the full 43-page report was not. (Dkt.# 123, Ex.# s 46, 11). Specifically, two key pages of the report were not provided despite the fact the trial court ordered full disclosure of the ME's Report. (Dkt.# 123, Ex.# 59). The initial page not disclosed describes the improper procedure followed by OSBI agents and other law enforcement personnel who were tasked to properly document and preserve evidence from the Gerty crime scene.

1-21-86 1650 I returned a call to Hughes County District Attorney Bill Peterson concerning some bones that were found. Mr. Peterson didn't know anything, about the discovery but they are thought to be the remains of a missing store clerk __Donna Hariway.[sic] No ME was notified. He stated that the OSBI was notified out of McAlister.[sic] That some people from the OKC office had come down. [sic]
OSBI Lab people out of OKC did photo the scene and they just had a field day picking up bones. No diagrams. The OSBI agent out of McAlester never showed up at the scene. Mr. Peterson believes that the bones are en route to OKC but didn't know for sure. The sheriff didn't know where the bones were but thought that the OSBI had them. Notified the OSBI in OKC & spoke with Rick Spense. He didn't have the bones but thought that the lab man David Dixon had them. I spoke with the Sheriff Orvall Rose who didn't know where they were. Finally the OSBI found them in their lab and delivered them at 2040 by Ann Reed. Come to find out the bones were found by a trapper.
Several problems with this case:
#1 No one notified a county medical examiner which would've been more than happy to go to the scene.
#2 Since no one notified a medical examiner or the DA they had no legal authority to remove the body.
#3 This is Tulsa's jurisdiction so therefore the remains should've been transported to Tulsa.
#4 If this is not Donna Haraway, they've screwed up the crime scene.
#5 No one seems to give a “shit” and provide OCME with any information on Ms. Haraway.

(Dkt.# 123, Ex.# 46, at 10) (emphasis added).

         The incompetence in processing and handling the Gerty crime scene is a critical failure by law enforcement given that very little physical evidence was found besides the skeletal remains. It continues a pattern of general disregard, or lack of professional capacity demonstrated by the police involved in this case from the initial call at McAnally's to the Gerty crime scene.[9] (Dkt.# 123, Ex.# 20). More importantly, no evidence of the flowered blouse described in Mr. Fontenot's confession was found at the scene further discrediting Mr. Fontenot's already weak and baseless confession. Due to the improper processing of the Gerty crime scene, it cannot be determined if Mrs. Haraway was murdered at this location, or her body was taken there.

         Further, no bullet or casing was found potentially leading to the actual perpetrator. The medical examiner investigator's report detailing the careless and unprofessional scene processing was withheld from the defense. The investigator opined that any ability to determine what happened to Mrs. Haraway was lost by virtue of law enforcement's incompetence. Such inept police work coincides with the processing of the scene at McAnally's where evidence was destroyed rather than collected. (N/T 6/9/1985 at 103-110-111; J/T 1259-1240, 1422-23, 1439, 1441, 1447-1448).

         Another part of the original medical examiner's file not disclosed was the forensic anthropology report about the skeletal remains evaluated by Dr. Richard McWilliams.[10] His report indicates that the skeletal remains are of a woman who gave birth. There is no evidence that Mrs. Haraway had given birth at any time before her abduction.

Skeletal remains examined this date revealed partial skeletal remains of an Indian white female less than 35 years of age and more likely 25 years of age. Marks on the pelvis indicated she had given birth to at least one child.

         INJURIES:

1. Bullet entrance wound at the left lambdoidal suture and exit wound at the right coronal suture.
2. A scalloped cut wound on the superior rim of the left 6th or 7th rib.

(Dkt.# 123, Ex.# 46, at 12). As documented in Mr. Fontenot's Second Amended Complaint, Dr. McWilliams, a forensic anthropologist, wrote a text book regarding the evaluation of human bones for the purposes of identification. (Dkt.# 123, Ex.# 25). Forensic Anthropology: The Structure, Morphology, and Variation of Human Bone and Dentition, Mahmoud El-Najjar and K. Richard McWilliams, (1978). Per both doctors' research, the evaluation of skeletal remains permit not only the determination of gender, but whether a woman has experienced childbirth.

Another kind of pitting occurring in the innominate is parturition or postpubic pits. This is one or usually more deep pits found on the posterior surface of the pubic bone roughly parallel to the edge of the pubic symphysis. Angel (1969) and Stewart (1957, 1970) agree that these pits are associated with childbirth trauma and therefore are diagnostic of female pelvis.
Nemeskeri (1972) has published a five-stage scheme for estimation of the number of pregnancies a female has experienced. The method is based upon observed degenerative changes in pubic symphyses in adult female innominates which are assumed to be attributable to pregnancy. Nemeskeri observed that the number of pregnancies he attributed to each stage remained to be verified by control investigation in autopsy material.

Id. at 81-82. Further, Petitioner states that “according to the Smithsonian Institute, the back pelvic bones would show marks where the ligaments tore during natural childbirth. See Smithsonian Nation Museum of Natural History, http://anthropology.si.edu/writteninbone/difficultbirths.html (last visited 2013).” Anthropologists consistently evaluate the pelvic bones not only to ascertain gender, but to tell more about the skeletal remains of the person. Id.

         This previously undisclosed evidence is a startling revelation in this case. If Mrs. Haraway was three months pregnant at the time of her abduction, which the evidence indicated, then it was impossible for Mr. Fontenot to have killed Mrs. Haraway on April 28, 1984. Such information is crucial not only in determining what caused her death but, equally important, what happened to her prior to her death. Combined with the newly obtained evidence showing that the APD and OSBI mishandled the evidence collection at both crime scenes, it is apparent that law enforcement deprived Mr. Fontenot of the ability to argue an alternate suspect and motive for Mrs. Haraway's abduction and murder.

         That Mrs. Haraway's pelvic bones showed indications of natural childbirth is newly discovered evidence of innocence. Her friends and family are adamant that she did not have a child prior to her disappearance. However, shortly before her disappearance, Mrs. Haraway informed Karen Wise, convenience store clerk at J.P.'s, that she was three months pregnant. (Dkt.# 123, Ex.# 2). Ms. Wise shared this information with her best friend, Vickie Blevins. (Dkt.# 123, Ex.# 2). Given the evidence of natural childbirth from the marks on her pelvis, it is possible Mrs. Haraway had a child sometime before her skeletal remains were found in Gerty, Oklahoma over a year and a half after her disappearance and months after Mr. Fontenot was in custody.

         Such evidence undermines the state's entire theory as to the motive of Mrs. Haraway's kidnapping and what happened to her in the months leading up to her death. The State's failure to disclose the entirety of the medical examiner's report deprived the defense of meaningful avenues of investigation regarding the motive of Mrs. Haraway's abductor along with impeachment evidence regarding the processing of the Gerty crime scene. Had a jury been presented with such evidence, there is a reasonable probability of a different result due to the weakness in the prosecution's theory of the case.

         “The miscarriage of justice exception …survived the AEDPA's passage.” McQuiggin v. Perkins, 569 U.S. at 393. “A prisoner's proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error.” House, 547 U.S. at 537-538. Accordingly, the Court finds Mr. Fontenot has overcome all procedural bars as “[s]ensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA's statute of limitations.” McQuiggin v. Perkins, 569 U.S. at 393.

         II. EXHAUSTION OF STATE COURT REMEDIES

         Respondent alleges Petitioner's Second Amended Petition contains three claims that have not been presented to the state courts, rendering it a “mixed petition” containing unexhausted claims. Specifically, the Respondent contends Mr. Fontenot did not raise the claims of; (1) ineffective assistance of appellate counsel[11]; (2) the imposition of the bar of laches by the State Courts did not prevent Petitioner from fully developing his actual innocence, Brady, or any other federal claim in the state courts, and (3) Brady claim based on newly discovered evidence presented in the instant case. The Court finds, however, that Mr. Fontenot's Second Amended Petition can be reviewed on the merits due to the futility of exhaustion, Fed.R.Civ.P.15(b) and (c), and Fed.R.Civ.P. 60(b) and 60(d).

         A. Futility

         According to 28 U.S.C., Section 2254 (c), constitutional claims must be fairly presented to the state court prior to being raised in a federal habeas corpus petition. See Picard v. Connor, 404 U.S. 270, 277-278 (1971); Rose v. Lundy, 455 U.S. 509 (1982). Although interests of federalism and comity create a presumption in favor of requiring a petitioner to exhaust available state remedies, the failure to exhaust is not an absolute bar to federal jurisdiction over a habeas petition. See Granberry v. Greer, 481 U.S. 129, 141 (1987)(failure to exhaust does not deprive appellate court of jurisdiction to consider merits of habeas corpus application); Harris v. Champion, 15 F.3d 1538, 1554-55 (10th Cir. 1994)(exhaustion is based on principles of comity; exhaustion is not jurisdictional). Courts recognize it is futile for a petitioner to return to state post-conviction when state courts fail to provide substantive review of constitutional claims. See Bear v. Boone, 173 F.3d 782, 785 (10th Cir. 1999).

         If a state routinely imposes a procedural bar on those claims which are being exhausted, the exhaustion requirement may be bypassed. See Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (“An exception is made only if there is no opportunity to obtain redress in state court, or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.”); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Harris v. Reed, 489 U.S. 255, 269 (1989) concurring opinion. Okla. Stat. tit. 22, Section 1086 delineates when successor post-conviction applications are permitted.

All grounds for relief available to an applicant under this act must be raised in his original, supplemental, or amended petition. Any ground not so raised, or knowingly, voluntarily, and intelligently waived in this proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was adequately raised in the prior application. (emphasis added).

         Oklahoma's successor state post-conviction process is ineffective in providing any hope of substantive review of Mr. Fontenot's constitutional claims. As discussed infra, Mr. Fontenot has alleged sufficient reasons either for not asserting these claims, or proving they were adequately raised in the prior application.

         Mr. Fontenot asserts it would be futile to proceed with a state post-conviction action because the claims would be procedurally barred based upon the consistent pattern and practice of the OCCA. The Court agrees the claims that Respondent asserts Mr. Fontenot needs to exhaust would be procedurally barred in a successor application. See Johnson v. State, 823 P.2d 370, 372 (Okla. Crim. App. 1991); Moore v. State, 889 P.2d 1253 (Okla. Crim. App. 1995). Therefore, the Court finds a return to state court is futile, and federal habeas relief is available. 28 U.S.C., Section 2254(b)(1)(B)(ii).

         Specifically, if Mr. Fontenot returned to state post conviction on a successor action to exhaust his claims, those claims would be procedurally barred based upon a consistent pattern and practice of the Oklahoma Court of Criminal Appeals (“OCCA”). In fact, Mr. Fontenot's Post Conviction Application in which he already raised both a Brady violation and an ineffective assistance of appellate counsel claim, was denied based upon laches. In a 2 page order, the state court, without discussion, while discovery was ongoing, and without ruling on the pending summary judgment motion, denied Mr. Fontenot's application for post conviction relief. (Dkt.# 99, Exhibit # 8). The court stated, “Simply too much time has elapsed due to Petitioner's own inaction.” Id. This two page order is dated December 31, 2014, the day before the state court judge retired. Now, approximately 4 ½ years later, Mr. Fontenot is still receiving evidence from the State in the instant litigation.

         Mr. Fontenot contends the futility is further illustrated by the habeas litigation of Petitioner Beverly Moore's actual innocence claim in the Western District of Oklahoma in Beverly Michelle Moore v. Warden Millicent Newton-Embry, Western District Court Case No. CIV-09-985-C; (Dkt.# 148, Respondent's Br. at 85). The federal district court found that Ms. Moore established the actual innocence gateway but was concerned about her unexhausted constitutional claims. She consequently filed a second state post conviction petition in the state district court.

         After almost six years of litigating her unexhausted claims, the state district court found all of Ms. Moore's claims procedurally barred. During this process, Ms. Moore repeatedly requested that the federal court find the state post-conviction proceeding inadequate to provide any substantive review of her constitutional claims. The unnecessary delay in the state evidentiary hearing process due to the decisions to bifurcate based on the elements of each constitutional claim, scheduling issues, and transcript complications demonstrates the failings of the state process to promptly handle successor claims. Based on the similarity of Mr. Fontenot's claims and Ms. Moore's, Mr. Fontenot would face the same procedural bar imposition by the OCCA.

         When the highest state court can be counted on to impose a procedural bar, exhaustion is futile. See Goodwin v. Oklahoma, 923 F.3d 156, 157 (10th Cir. 1991)(exhaustion is not required “where the state's highest court has recently decided the precise legal issue petitioner seeks to raise in his federal habeas petition.”); Richie v. Simmons, 563 F.Supp.2d 1250, 1274 (ND OK 2008)(finding that an ineffective assistance of counsel claim concerning undiscovered statements would be procedurally defaulted by state courts concerning exhaustion); Rojem v. State, 925 P.2d 70 (Okla.Crim.App. 1996); See e.g., Granberry v. Greer, n. 8, citing Marino v. Ragen, 332 U.S. 561, 564 (1947)(Rutledge, J., concurring)(exhaustion should not be required “whenever it may become clear that the alleged state remedy is nothing but a procedural morass offering no substantial hope of relief.”).

         Even in capital cases where new evidence is found in federal habeas proceedings establishing a Brady violation, a return to state court in a successor petition results in the imposition of a procedural bar. In Douglas v. Workman, the OCCA denied both Mr. Powell's and Mr. Douglas' successor applications on strictly procedural grounds, holding that the claims were barred by Rule 9.7(G)(3), Rules of the Court of Criminal Appeals, 22 Okla.Stat. Ch. 18 app'x (2003), which requires successive post-conviction petitions to be filed “sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis of the claim for the new issue is ….discovered.” Douglas v. Workman, 560 F.3d 1156, 1167-68, 1171-72 (10th Cir. 2009). There is no basis to find that the state court has any available means for substantive review through a successive state application.

         Further, as Mr. Fontenot has argued his actual innocence, it constitutes a manifest injustice for him to return to state court thereby delaying his right to substantive review of his wrongful conviction. The failure to totally exhaust his state remedies does not divest this Court of jurisdiction over the merits of Mr. Fontenot's constitutional claims. See Granberry v. Greer, 481 U.S. 129, 131 (1987). In determining whether the “interests of justice” warrant requiring Mr. Fontenot to pursue additional state remedies, the Court considers the interests of comity and federalism. Granberry, 481 U.S. at 134, Harris v. Champion, 15 F.3d 1538, 1555-57 (10th Cir. 1994)(holding that excessive delays in the state system in resolving claims for relief justified the federal court excusing the prisoner from having to exhaust the state remedies). Similarly, this case presents unusual circumstances, or circumstances of peculiar urgency that warrant the federal court taking action. Granberry, 481 U.S. at 134; Harris v. Champion, 48 F.3d 1127, 1133 (10thCir. 1995)(noting that the federal court should determine whether “the interests of comity will be better served by hearing the merits of the claims); see also, Granberry v. Greer at 134, citing Ex Parte Hawk, 321 U.S. 114, 117 (1944)(“this Court reiterated that comity was the basis for the exhaustion doctrine: ‘it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only ‘in rare cases where exceptional circumstances of peculiar urgency are shown to exist.'” (emphasis added). The entire basis for this Court entertaining this mixed petition at all is due to the continued behavior by state actors in failing to abide by numerous court orders and subpoenas to disclose records.

         The Tenth Circuit has stated that a petitioner able to satisfy the “miscarriage of justice” standard could be excused from the habeas exhaustion requirement. See Gradiz v. Gonzales, 490 F.3d 1206, 1209 (10th Cir. 2007)(looking to habeas law to carve the exception to statutory exhaustion requirement under the Immigration and Nationality Act). The Seventh Circuit has also determined that “actual innocence” is a ground upon which a federal court can relax the total exhaustion requirement. Milone v. Camp, 22 F.3d 693, 699-701 (7th Cir. 1994). Moreover, it should be noted that the exhaustion rule and the procedural default rule both serve the same general purposes of principles of comity and federalism. See e.g. Edwards v. Carpenter, 529 U.S. 446 (2000), and there is no question actual innocence serves as a narrow exception to the procedural default rules. House v. Bell, 547 U.S. 518, 536-67 (2006); Schlup, 513 U.S. 298 (2005). In fact, “[i]f petitioner is actually innocent of the crime for which he was convicted, it may be a ‘fundamental miscarriage of justice' for a federal court not to entertain his constitutional claims.” Milone v.Camp, 22 F.3d at 700. Because Mr. Fontenot satisfies the “miscarriage of justice” exception by establishing his actual innocence, he has established the unique and compelling circumstances sufficient to warrant being excused from having to return to state court.

         B. Federal Rule of Civil Procedure 15

         In Banks v. Dretke, 540 U.S. 668, 704 (2004), the United States Supreme Court found Fed.R.Civ.P. 15(b) applicable in federal habeas proceedings. Fed.R.Civ.P. 15(b)(2) provides that “when an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move -at any time, even after judgment - to amend the pleadings to conform them to the evidence and to raise an unpleaded issue.” Further, Fed.R.Civ.P. 15(c)(1) provides that an amendment to a pleading relates back to the date of the original pleading when …the amendment asserts a claim or defense that arose out the conduct, transaction, or occurrence set out __or attempted to be set out-in the original pleading.' (emphasis added).

         In the instant case, Mr. Fontenot presented his Brady claim both to the state district court and the OCCA in his request for post conviction relief. See further discussion Brady claim infra at pp. 62-118). However, On January 31, 2019, over four and half years from the initial state court order, and two years from the federal subpoena authorized by this Court, Mr, Fontenot's counsel became aware the Ada Police Department had released police reports to counsel for Thomas Ward, Mr. Fontenot's co-defendant pursuant to a joint discovery motion. Respondent was served with the Ward subpoenas requesting discovery from various law enforcement agencies, including the Ada Police Department. After decades of discovery requests by Mr. Fontenot, and years after the instant litigation began in this court, over 300 pages of police reports were disclosed by the City Attorney of Ada to Ward's counsel and Respondent on January 4, 2019. At no time did Respondent or the City Attorney for Ada contact Mr. Fontenot's counsel regarding the discovery of the Ada Police Reports. Laches is an equity defense based upon the premise that the undo delay penalizes the state. However, unclean hands negate an assertion of laches as the Respondent's actions contributed to the malfeasance or severe wrongdoing regarding the claims at issue.

         Mr. Fontenot's counsel, and this Court were extremely surprised to learn of the “discovery” of the Ada Police Department Reports since Mr. Fontenot had served this Court's subpoena to the Ada Police Department in February 2017 and received nothing in response. (Dkt.# 114, Ex.# 3). Further, counsel for Respondent was aware of the 2017 subpoenas because he had been provided copies of them by Mr. Fontenot's counsel.

         Respondent did not forward the 300 pages of new discovery to Mr. Fontenot's counsel until contacted by him; nearly a month after receiving the documents himself. It is important to note that Respondent's attorney is counsel in both the instant case and in Mr. Ward's state post-conviction proceedings. As such, he agreed to discovery in Mr. Ward's case in much the same manner as he did in Mr. Fontenot's case. (Dkt.# 114, Ex.# 5). Further, he knew a state court subpoena had been issued to the Ada Police Department in late November 2018. Id. Yet, counsel did not notify opposing counsel, or this Court of the Ada Police Department's disregard of this Court's subpoena. Instead, Mr. Fontenot's counsel learned of the undisclosed documents' existence from Mr. Ward's counsel.

         A repeated pattern of failing to comply with court orders and subpoenas has plagued the State for over three decades, and resulted in the necessity of the Second Amended Petition. During state post-conviction, Mr. Fontenot requested the very records from the Ada Police Department that are now at issue. Post-conviction counsel was told the records did not exist. (Dkt.# 150, Ex.# 5). Mr. Fontenot again sought these records in the instant federal habeas corpus proceedings. The City of Ada Attorney informed counsel there were no records. (Dkt.# 150, Ex.# 6).

         The nondisclosure is a direct violation of this Court's subpoena to the Ada Police Department and the state court order which focused on these very documents. (Dkt.# 114, Ex.#s 1, 2). In his March 17, 2017, response to this Court's subpoena, the Ada City Attorney stated that, “I inquired of Chief Miller regarding the requested documents and he has informed me that the City of Ada Police Department no longer has any of the documents requested. (Dkt.# 150, Ex.3). The Ada Police Department had similarly told counsel in Mr. Fontenot's state post-conviction proceedings that there were no records to be produced. That the police department has now “found” records for Mr. Fontenot's co-counsel that were “unavailable” in the instant and prior proceedings is troubling. “A rule thus declaring ‘prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process.” Banks v. Dretke, 540 U.S. at 696.

         A claim keeps its exhausted status so long as the newly developed facts do not fundamentally alter the claim reviewed by the state courts. See generally, Vasquez v. Hillery, 474 U.S. 253, 260 (1986). This Court finds these new documents provide supplemental evidence and do not fundamentally alter Mr. Fontenot's Brady claim already considered by the state courts. Further, pursuant to Fed.R.Civ.P. 15(c)(1), these documents relate back to Mr. Fontenot's original Brady claim as they “arose out of the conduct, transaction, [and] occurrence set out __or attempted to be set out-in the original pleading.” Id.

         Finally, the Tenth Circuit Court of Appeals has also concluded that there are circumstances a claim raised in an initial habeas petition can be supplemented. Douglas v. Workman, 560 F.3d 1156, 1187 (10th Cir. 2009). In such instances, defendants are not subject to the exhaustion requirements of the AEDPA.

In reaching this conclusion, we note the AEDPA itself ‘does not define the terms ‘second or successive.'” United States v. Lopez, 534 F.3d 1027, 1033 (9th Cir. 2008), reh'g granted, 301 Fed.Appx. 587, 588 (9th Cir. 2008); see also Panetti v. Quarterman, 551 U.S. 930 (2007)(noting that “[t]he phrase ‘second or successive' is not self-defining, ” but “takes its full meaning from [the Supreme Court's] case law, including decisions predating the enactment of [AEDPA]”); United States v. Scott, 124 F.3d 1328, 1329 (10th Cir. 1997)(noting AEDPA “does not define what is meant by ‘second or successive'”). And “[t]he [Supreme] Court has declined to interpret ‘second or successive' as referring to all Section 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior Section 2254 application. Panetti, 127 S.Ct. at 2853 (emphasis added). In deciding whether a pleading should be deemed a second or successive pleading subject to 28 U.S.C. Section 2244(b)'s restrictions, the Supreme Court instead looks to the purposes of AEDPA, which are “to further the principles of comity, finality, and federalism.” Id. at 2854 (quotation marks omitted). The Court has further indicated that “[t]hese purposes, and the practical effects of our holdings, should be considered when interpreting AEDPA. This is particularly so when petitioners run the risk under the proposed interpretation of forever losing their opportunity for any federal review…” Id. (quotation marks omitted)(addressing a situation where petitioners might forever lose review of their unexhausted federal habeas claims). The Court has, thus, “resisted an interpretation of the statute that would produce troublesome results, create procedural anomalies, and close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress' intent. Id. (quotation omitted); see also Castro v. United States, 540 U.S. 375, 380-81 (2003).

Id. at 1187-1188 (emphasis added).

         In Douglas the Tenth Circuit Court of Appeals was specifically addressing a claim of prosecutorial misconduct which the defendant had raised in his initial habeas petition. Defendant was allowed to supplement his previously asserted prosecutorial misconduct claim with his newly discovered Brady allegations, which involved proven willful misconduct by the prosecutor. The defendant in Douglas discovered the existence of an agreement between a key witness and the prosecutor which the “State not only suppressed [ ] by presenting false, uncorrected testimony denying the existence of any deal between the prosecutor and Smith, it also relied heavily on the lack of any deal in vouching for the credibility of [the witness]. The denial of the opportunity to impeach [the witness] on the evidence clearly prejudiced [the defendant]. Id. at 1187.

         The Court concluded that Brady requires disclosure of tacit agreements between the prosecutor and a witness. Douglas v. Workman, 560 F.3d 1156, 1186 (10th Cir. 2009). In light of the materiality and prejudice caused by such agreements the Court found it was appropriate to treat the defendant's Brady claim as a supplement to his prosecutorial misconduct claim first raised in his initial habeas petition. “The threat of incorrect jury verdicts is further increased by tacit agreements, because when testifying, a witness whose agreement is tacit, rather than explicit, can state the he has not received any promises or benefits in exchange for his testimony …Likewise the prosecutor can argue to the jury that the witness is testifying disinterestedly, which artificially increases the witness's credibility -artificially, that is, because the premise of the argument is false.” Id. at 1186-1187 citing Bell v. Bell, 512 F.3d 223, 244-45 (6th Cir. 2008).

         As will be discussed infra at pp. 102-108, the prosecutor in this case, as in the Douglas case, is alleged to have had a tacit agreement with a key witness, Terri Holland (formerly Terri McCartney), who testified against Mr. Fontenot in his preliminary hearing and joint trial. She claimed to have heard Mr. Fontenot speak about his involvement in Mrs. Haraway's abduction and murder. (P/H 888-931). Ms. Holland also testified there was no deal between her and the prosecutor, which testimony was never corrected by the prosecution. Ms. Holland was specifically asked, “Were there any deals made by you and the District Attorney's Office, any agreements, any considerations, any agreements not to file or proceed on an “after former” charge against you?” (PH at 896). Ms. Holland answered, “No.” Id.

         Ms. Holland had a history of being a snitch. At the same time she claimed to have heard Mr. Fontenot confess, she also claimed to have heard Ron Williamson make incriminating comments about his involvement in Debbie Carter's murder. Her testimony in the Williamson case proved to be false. See Williamson v. Reynolds, 904 F.Supp. 1529 (E.D. OK 1995). In fact, the same District Attorney's Office used her testimony in both Mr. Williamson's and Mr. Fontenot's cases.

         Ms. Holland was interviewed by Pontotoc County District Attorney Investigator Lloyd Bond and Pontotoc County Sheriff Deputy Tom Turner. (P/H 883-884, 897-898). Deputy Turner's interview report was included in the OSBI reports that Mr. Fontenot's counsel obtained in the instant case, which were not a part of the prosecutorial report and had not been given to the defense. (Dkt.# 123, Ex.# 44 at 282-289). Ms. Holland's statement as recounted by Deputy Turner in his report has numerous inconsistencies with her preliminary hearing and trial testimony. Although the prosecutorial table of contents references Ms. Holland's videotaped statements, the State divulged no such videotape statement to defense counsel.

         Because of Ms. Holland's history as a snitch, her testimony was used by the prosecution to bolster an uncorroborated confession. She was placed in a cell near Mr. Fontenot for this very purpose. As part of the newly produced Brady material provided to this Court is an affidavit from Ms. Holland's husband who represents Ms. Holland (now deceased) committed perjury when she testified in Mr. Fontenot's preliminary hearing and joint trial. He states that because of an agreement she had with the prosecutor; that if she testified against Mr. Fontenot, he would be released from jail and they could marry. See infra at 108. Furthermore, Mr. Holland's charges and plea agreement were found in the Pontotoc County District Attorney's file made available during the instant proceedings. (Dkt.# 86 at 30-31). These documents support Mr. Holland's statement of the benefits received and the timing of when he received them.

         As in the Douglas case, the prosecutor in Mr. Fontenot's case also acted willfully, and not just negligently or inadvertently. His conduct warrants special condemnation and justifies permitting Mr. Fontenot to supplement his habeas petition. “It has long been established that the prosecutor's deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with the rudimentary demands of justice.” Id. at 1190, citing Banks v. Dretke, 540 U.S. 668, 694 (2004)(quoting Giglio, 405 U.S. at 153).

         C. Fraud on the Court

         The prosecutor's knowing use of false testimony involves, not “just” prosecutorial misconduct, but “more importantly … [the] corruption of the truth seeking function of the trial process.” Douglas v. Workman, 560 F.3d at 1191 citing United States v. Agurs, 427 U.S. 97, 104 (1976). Further, it was the prosecutor's conduct in this case in taking affirmative action, after Mr. Fontenot's trial, to conceal the tacit agreement made in exchange for Terri Holland's testimony that prevented Mr. Fontenot from discovering the Brady claim in time to assert that claim originally in his first habeas petition. In light of these circumstances, it is appropriate to treat this newly discovered evidence as a supplement to Mr. Fontenot's original Brady claim, instead of requiring exhaustion. To hold otherwise, “would be to allow the government to profit from its own egregious conduct.” Id. at 1193. There continue to be disclosures of exculpatory and impeachment evidence starting with Mr. Fontenot's second appellate process and continuing through these proceedings.

         “The prosecutor's conduct at issue here, then, is akin to a fraud on the federal habeas courts; that is, the prosecutor took affirmative actions to conceal his tacit agreement with the state's key witness until it was too late, procedurally, for [the defendant] to use that undisclosed agreement successfully to challenge his capital conviction.” Id. In other circumstances, the Supreme Court has noted that fraud on a federal habeas court might exempt a petitioner from meeting the strict limitations AEDPA places on second and successive requests for habeas relief. Douglas v. Workman, 560 F.3d at 1193. Additionally, as discussed supra, the State in this case flagrantly disregarded the federal subpoena issued by this Court. At the very least, new evidence has been presented which is over 30 years old, the subject of numerous State and Federal court orders, and was withheld from Mr. Fontenot and the Courts. The newly discovered evidence recently discovered by the City of Ada was not divulged to this Court by the State.

         While the fraud on the court cases may, or may not apply directly to the circumstances of this case, they lend support to this Court's decision to treat Mr. Fontenot's Brady claim as part of his initial request for habeas relief. See Douglas v. Workman, 560 F.3d at 1193. “Where a prisoner can show that the state purposefully withheld exculpatory evidence, that prisoner should not be forced to bear the burden of section 2244, which is meant to protect against the prisoner himself withholding such information or intentionally prolonging the litigation. Id. citing Workman v. Bell, 227 F.3d 331, 335 (6th Cir. 2000). Further,

fraud upon the court calls into question the very legitimacy of a judgment. That characterization of the situation which arises when the prosecution fails to reveal exculpatory evidence to the defense would seem to satisfy, at least in spirit, the requirement of section 2244. The difference between questions of fraud upon the court and ordinary newly-discovered evidence situations is that an allegation of fraud upon the court casts a dark shadow over the prosecution's intentions. The situation suggests that a judgment may have been reached with the assistance of a prosecutor who may not have had the intention of finding the true perpetrator. Such a judgment is inherently unreliable, and therefore satisfies the requirements of section 2244 in spirit. Id. Moreover, [p]rosecutors are subject to constraints and responsibilities that don't apply to other lawyers. While lawyers representing private parties may __ indeed, must ___do everything ethically permissible to advance their client's interests, lawyers representing the government in criminal cases serve truth and justice first. The prosecutor's job isn't just to win fairly, staying well within the rules. As Justice Douglas once warned, “[t]he function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.
Douglas v. Workman, 560 F.3d at 1194, citing Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974)(Douglas, J. dissenting).

         For similar reasons, in this case, which involves fraud perpetrated on Mr. Fontenot and this Court, Mr. Fontenot is permitted to supplement his Brady claim with all the newly discovered evidence produced in the instant case. See also, United States v. Smiley, 553 F.3d 1137, 1144 (8th Cir. 2009), where the court agreed that defendant's fraud on the court motion was not a second or successive petition and “reasoned that the fact the case involved a criminal sentencing process, rather than a civil proceeding such as in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944) was inconsequential, …and as such, is not a second or successive 2255 motion.” The Supreme Court, as long ago as Mooney v. Hologan 294 U.S. 103, 112 (1935), stated that deliberate deception of a court by the presentation of false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U.S. 213 (1942).

The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” (Napue v. Illinois, 360 U.S. 264, 269 (1959). Tampering with the administration of justice in the manner indisputably alleged here involves far more than an inquiry to a single litigant.” It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”

Hazel-Atlas, 322 U.S. at 246.

         III. MR. FONTENOT'S FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE PONTOTOC COUNTY DISTRICT ATTORNEY'S OFFICE WITHELD EVIDENCE IN VIOLATION OF BRADY V. MARYLAND.

         The Due Process Clause of the Fourteenth Amendment requires prosecutors to disclose to the defense all evidence favorable to the accused concerning guilt and penalty. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995). This duty extends to, “ all stages of the judicial process.” Pennsylvania v. Ritchie, 480 U.S. 39, 60, 94 L.Ed.2d 40, 107 S.Ct. 989 (1987); see also Smith v. Roberts, 115 F.3d 818, 820 (10th Cir. 1997). There are three elements of a Brady violation: “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668, 691 (2004) quoting Strickler, 527 U.S. at 281-82 (1999). Due process also places upon the prosecutor a corresponding duty to correct false or misleading evidence that is harmful to the defendant. Napue v. Illinois, 360 U.S. 264, 269 (1959).

         A prosecutor has an independent obligation to locate Brady materials within the possession of law enforcement.

Third, the "prosecution" for Brady purposes encompasses not only the individual prosecutor handling the case, but also extends to the prosecutor's entire office, . . . as well as law enforcement personnel and other arms of the state . . . to the text of the note involved in investigative aspects of a particular criminal venture. Logically, then, it follows that because "'"investigative officers are part of the prosecution, the taint on the trial is no less if they, rather than the prosecutors, were guilty of nondisclosure."' Smith v. Secretary of N.M. Dep't of Corrections, 50 F.3d 801, 824 (10th Cir. 1995); see also United States v. Buchanan, 891 F.2d 1436, 1442 (10th Cir. 1989)(discussing the failure on the part of law enforcement to disclose Brady materials falls upon the prosecutor).

         The prosecution's failure to disclose police reports of alternate suspects with connections to the victim is a Brady violation as that evidence is potentially exculpatory, impeachment of the quality of a police investigation, and aids a defense investigation. See Smith, 50 F.3d. 801 at 829-830; see also Bowen v. Maynard, 799 F.2d 593, 612-13 (10th Cir. 1986). Given that multiple police agencies often investigate a criminal matter, it is incumbent upon the prosecutor to ensure that Brady materials are obtained for disclosure to defense counsel in accordance with the Fourteenth Amendment. See Smith at 824; see also United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993), holding that prosecutors are obligated to conduct a “thorough inquiry" of police for Brady materials); United States v. Osorio, 929 F.2d 753, 762 (1st Cir. 1991); see generally Tiscareno v. Anderson, 639 F.3d 1016, 1022 (10th Cir. 2011) (discussing other state actors who worked on a criminal matter that would fall within Brady's obligations).

         The U.S. Supreme Court holds that a prosecutor fails his Brady obligation when he does not obtain exculpatory, impeachment evidence that aids a defense during the pretrial process and disclose to the defense. See U.S. v. Bagley, 473 U.S. 667, 675 (1985); see also Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991); United States v. Brooks, 296 U.S.App.D.C. 219, 966 F.2d 1500, 1500-04 (D.C. Cir. 1992) holding a prosecution's duty to learn of Brady evidence includes files of the police department's homicide and internal affairs divisions). That a state court rule or law excused a prosecutor from having to disclose any evidence to defense counsel does not supersede that prosecutor's obligations under the United States Constitution.

         A prosecutor who adopts an open-file policy of disclosure does not remove his obligations under the Due Process ...


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