United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
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). Petitioner filed a
response to the motion on May 14, 2019 (Dkt.# 150).
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. 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.
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
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.
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
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
IX. Mr. Fontenot's Fourteenth Amendment due process
rights were violated due to the police misconduct that
permeated the investigation into Mrs. Haraway's
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).
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.
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.
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).
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).
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.
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).
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.
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.
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.
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).
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).
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).
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.
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.
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.
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.
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).
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).
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
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.
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
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).
MR. FONTENOT QUALIFIES FOR SUNBTANTIVE REVIEW UNDER
BOTH THE ACTUAL INNOCENCE AND CAUSE AND PREJUDICE
Statute of Limitations
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).
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.
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
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.
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.
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).
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.
Fontenot's actual innocence is discussed infra
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
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
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.
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.
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.
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).
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
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.
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
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."
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
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.
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.
Newly Discovered Evidence Establishes Mr. Fontenot's
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 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. . .”
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.
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).
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
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).
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 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
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
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
A Yes. They called her "Red". She was at that
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
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
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
(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
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
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.
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.
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.
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.
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.
Donna Denice Haraway was being Harassed by an Unknown
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.
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.
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
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.
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.#
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
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).
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.
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.
The Only Eyewitness Who Identified Mr. Fontenot Recants His
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
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
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
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
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?
Q. And as I recall that, Mr. Fontenot was two to three inches
shorter than you were. Is that correct?
Q. Okay. so, if you were, in fact, five ten, Mr. Fontenot
would be five seven to five eight. Is that correct?
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
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?
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?
Q. Okay. And you did that because of the fact that this
gentlemen was wearing boots, you saw those out in the hall,
Q. His hair was longer than Mr. Fontenot's?
Q. He was much taller than Mr. Fontenot?
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).
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.
Law Enforcement Pressured Karen Wise to Change Her Account of
What Transpired in J.P.'s Convenience Store.
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
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
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
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
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
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.
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.
Numerous Inconsistent Statements about the Gray Primered
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
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.
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.
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
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
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.
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.
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.
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.
Undisclosed Portions of the Medical Examiner's
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).
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
#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).
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. (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.
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).
part of the original medical examiner's file not
disclosed was the forensic anthropology report about the
skeletal remains evaluated by Dr. Richard
McWilliams. 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
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.
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
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
(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.
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.
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.
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.
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.
EXHAUSTION OF STATE COURT REMEDIES
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; (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)
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).
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).
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.
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).
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.
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
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
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.”).
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
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
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.
Federal Rule of Civil Procedure 15
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).
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.
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.
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
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).
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.
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.
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).
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.
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).
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.
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.
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
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.
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).
Fraud on the Court
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.
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.
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).
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.
MR. FONTENOT'S FOURTEENTH AMENDMENT RIGHTS WERE
VIOLATED WHEN THE PONTOTOC COUNTY DISTRICT ATTORNEY'S
OFFICE WITHELD EVIDENCE IN VIOLATION OF BRADY V.
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,
prosecutor has an independent obligation to locate
Brady materials within the possession of law
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
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).
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.
prosecutor who adopts an open-file policy of disclosure does
not remove his obligations under the Due Process ...