Arnold v. Dittmann
Opinion of the Court
Richard M. Arnold appeals the district court's order dismissing as untimely his petition for a writ of habeas corpus. There is no dispute that Arnold's petition was filed beyond the one-year deadline established by
I.
In 2008, Arnold was convicted of repeated sexual assault of a child in violation of
Arnold took the stand in his own defense and denied that he had ever touched his son in a sexual manner. Arnold testified that he did not spend any significant amount of time in his bedroom and further denied that there were times when he and his son were alone in the cabin.
Arnold and M.A. were the only two individuals with personal knowledge of what had transpired between them, and there *833was no forensic evidence supporting either party's account. So the case came down to a credibility contest between father and son. Both had substantial criminal histories: Arnold had five prior convictions, and M.A. (who was 17 years old at the time of trial) had a total of six prior convictions and/or juvenile adjudications of delinquency. The fact but not the nature of those convictions was disclosed to the jury.
M.A.'s grandfather, at whose cabin the alleged assaults took place, professed it was possible there were times during M.A.'s visits when Arnold and M.A. were alone in the cabin, as M.A. had testified. But he could not otherwise speak to M.A.'s allegations, beyond saying that M.A. had never indicated that anything bad was happening to him.
Other witnesses could only recount M.A.'s out-of-court statements about the alleged abuse. Detective Tom Makurat, who had interviewed M.A. in February 2006, shortly after M.A. had first discussed the abuse with a social services counselor, testified as to what M.A. had told him about the assaults. M.A.'s statements to Makurat were consistent with M.A.'s trial testimony. Makurat also testified that when he questioned Arnold about his son's allegations, Arnold had denied them and insisted that he was never alone with his son in the cabin.
Two witnesses recounted prior alleged statements by M.A. that were inconsistent with his trial testimony. Lila Mae Behm, sister to M.A.'s paternal grandmother, testified that M.A. had told her that nothing had happened between his dad and himself. Philip Augsburger, who was "best friends" with Arnold. R. 31-3 at 508, testified that he had asked M.A. during a telephone conversation, "Did this happen between you and your father?" and "[h]e said no." R. 31-3 at 506. According to Augsburger, M.A. explained that he had been angry with his father when he made the charge.
M.A. in rebuttal testimony denied discussing the sexual assault allegations in any detail with either Behm or Augsburger and expressly denied making the inconsistent statements they attributed to him.
The defense also elicited testimony aimed at impeaching the credibility of M.A.'s account more generally. There was testimony, for example, that Arnold did not spend significant time inside of the cabin or in his bedroom and typically slept outside in a tent; that he was often away from the cabin working, hunting, fishing, or dating his then-girlfriend, Misty Frank, and frequently went out with friends during the evening (M.A. had testified that the assaults took place in the afternoon or evening hours); that the video games were in the living room of the cabin, where M.A. and his grandfather both slept, rather than in Arnold's bedroom; that M.A. would become angry with his father if he did not spend enough time with M.A. or agree to buy him something he wanted; and that, contrary to M.A.'s testimony, there were unusual characteristics of Arnold's genital area, including a tattoo and multiple piercings of Arnold's penis and scrotum.
The jury convicted Arnold on July 17, 2008, at the conclusion of the four-day trial. Because Arnold had previously been convicted of a serious child sex offense (two counts of second degree sexual assault of a child), Arnold qualified as a "persistent repeater" under
*834In October 2011, the Wisconsin Court of Appeals affirmed both the conviction and Arnold's initial request for post-conviction relief pursuant to
In November 2011, shortly after the Wisconsin Court of Appeals had affirmed Arnold's conviction along with the denial of his first request for post-conviction relief, M.A. signed a notarized affidavit in the presence of two witnesses (apart from the notary) in which he recanted the substance of his trial testimony. At the time that M.A. reported the assaults by his father, M.A. had been under the supervision of a juvenile court and participating in a "Kids In Treatment" ("KIT") program, based on adjudications that M.A. himself had sexually assaulted children. In his affidavit, which was directed to Arnold's post-conviction counsel, M.A. represented that he had falsely accused his father in order to placate KIT personnel and ensure his successful completion of and discharge from the KIT program:
I [M.A.] would like to inform you that the charges against my father Richard Arnold are false. We did not have any kind of sexual contact. I am sorry for saying those things happened. I never meant for any of this to happen. But I felt pressured into saying those things because if I did not tell them something I would not have completed my KIT Program. So I told them that my dad did that so I could get them off my back and so I could get out of treatment and off probation and out of coun[se]ling. My dad[']s P.O. also pushed at me because my dad gave me condoms so if I had sex it would be safe sex. His P.O. put him in jail for that and said he was not a good father because he gave me the condoms. I just wanted everyone to leave me alone so I could get on with my life and so we could be a family again. But that didn't happen because after that my dad[']s P.O. wouldn't let us have any contact with each other. But I still continued to go there to see my dad [ ] and grandpa. But most of the time my dad was with [M]isty and her son so I still did not get to spend time with my dad. I just want everyone to know that this was all a big mistake and it was not true. I made the mistake of lying about this and it cost all of us a[ ] lot. I hope that you can help get my dad out of prison so he can come home where he belongs. He has been locked up long enough for something that he didn't do.
I hope that by me coming forward with this now that it's not to[o] late for the truth to be told and to set my dad free.
Appellate Ct. R. 6 at 21-22.
In September 2013, nearly two years after M.A. signed the affidavit recanting the accusations against his father, Arnold filed a pro se motion in state court seeking a new trial on the basis of the affidavit. See
The circuit court denied the motion without a hearing, R. 1-2 at 7, and the court of appeals affirmed.
*835State v. Arnold , No. 2013AP2538,
That Arnold'sWis. Stat. § 974.06 motion offered the victim's recantation in the form of an affidavit does not change the substance of the recantation or present a new challenge to the victim's credibility. The jury had the opportunity to judge evidence that the victim recanted to other persons prior to trial and was otherwise less than credible. The victim's affidavit offered the same type of evidence that was before the jury. Therefore, the victim's affidavit was cumulative evidence and could not constitute newly discovered evidence. Because the record shows that Arnold was not entitled to relief on his § 974.06 motion, the circuit court did not err in denying the motion without a hearing.
Arnold then repaired to federal court seeking relief pursuant to
On the State's motion, the district court dismissed Arnold's petition as untimely. R. 17. Pursuant to
The district court considered whether Arnold's claim of actual innocence could excuse the running of the limitations period, but concluded it could not. The court noted that under Schlup v. Delo , supra ,
Arnold filed a notice of appeal, accompanied with a renewed application for a certificate of appealability and a request that we appoint counsel to represent him. After an initial review of the district court's order and the record on appeal, this court found that Arnold had "made a substantial showing of the denial of his right to due process, given new evidence that the victim fabricated his testimony at trial." Appellate Ct. R. 8 (Kanne, J.). We therefore granted the request for a certificate of appealability and Arnold's request for appointed counsel. The State subsequently moved to vacate that order, arguing that whatever potentially meritorious constitutional claim Arnold might have, the district court's finding that Arnold's habeas petition was untimely resolved the appeal. We rejected the State's motion, pointing out that "the correctness of the court's assessment of timeliness is implicated in the constitutional claim we identified, since the district court held that Arnold had not provided 'new' evidence demonstrating his innocence that would justify an exception to the statute of limitations." Appellate Ct. R. 10.
II.
There is no dispute that Arnold filed his habeas petition beyond section 2244(d)(1) 's one-year time limit, so his petition is barred as untimely unless he can establish that he qualifies for an exception to the time limit. Arnold is relying on his alleged actual innocence to overcome the time barrier. Actual innocence is an equitable exception that renders the time limit set forth in section 2244(d)(1) inapplicable. McQuiggin v. Perkins , supra ,
Schlup establishes the framework for evaluating a claim of actual innocence as a gateway to review of a habeas claim that would otherwise be foreclosed by untimeliness or some other type of procedural default. See McQuiggin ,
Although a finding that Arnold has met the Schlup standard would open the door to habeas review notwithstanding section 2244(d)(1) 's time limit, it is by no means clear that his claim of actual innocence by itself would entitle him to a writ of habeas corpus. In order to obtain habeas relief, a state prisoner must show that his conviction violates the Constitution, laws, or treaties of the United States. Estelle v. McGuire ,
But before we could even take up this question, Arnold would have to pass through the innocence gateway by making the showing that Schlup requires. Unless he can overcome the time bar on his habeas *838petition in that manner, there would be no need and no authority for us to entertain his habeas petition, whatever substantive claims for relief it might raise.
Both parties, ultimately, recognize the important role that an evidentiary hearing will play in assessing Arnold's claim. Arnold's central point on appeal is that the veracity of M.A.'s affidavit has yet to be reviewed by any court, state or federal, and that he is entitled to a hearing for that very purpose. For its part, the State contends in the first instance that M.A.'s recantation, even if it could meet the Schlup standard, could not possibly meet the standard for granting relief on a freestanding claim of actual innocence, whatever that standard might be, see n.4 supra , when the recantation is considered along with all of the evidence supporting Arnold's conviction. But the State concedes that if we are not convinced by that argument, we should remand for an evidentiary hearing before the district court. As we now explain, we agree with the parties that the appropriate step for us to take at this juncture is to remand for such a hearing.
Arnold has presented a plausible claim of actual innocence. It is founded on M.A.'s formal recantation of his trial testimony, which necessarily amounts to new evidence in the sense that the recantation was not before the jury that convicted him. (More on that in a moment.) And M.A. himself has documented his recantation in an affidavit he swore to and signed in the presence of a notary and two other witnesses. Given that the State's case against Arnold rested primarily, if not exclusively, on M.A.'s testimony, his recantation as the accusing witness necessarily presents the possibility that Arnold could be factually innocent of assaulting his son.
We reject the State's suggestion that M.A.'s recantation could not meet the standard for relief on a freestanding claim of actual innocence, however credible a factfinder might determine it to be, such that it would be futile to proceed further. The State presumes (not unreasonably) that the standard for granting habeas relief on such a claim would be even more demanding than the standard Schlup has established for innocence as a gateway to habeas review. See n.4 supra . But the State has not ventured a guess as to what incremental increase in the burden of proof relief on a freestanding claim of actual innocence might require beyond Schlup 's already demanding standard ( Schlup plus ... what?). In that sense, the State's futility argument is really directed as much to the gateway function of Arnold's innocence claim as it is to the habeas-relief function of the claim (assuming there is one).
No doubt the Schlup standard is an onerous one for the petitioner to meet: the Supreme Court has indicated that it will be the rare case that can successfully navigate through the innocence gateway. See McQuiggin ,
Arnold's claim of innocence is not founded on DNA or other scientific evidence that can be characterized as objective. (Then again, neither was his conviction.) It is, instead, based on the accusing witness's post-conviction representation that his prior testimony was false, notwithstanding the oath he took at trial to testify truthfully.
*839Certainly there are reasons to treat recantations generally with a healthy dose of skepticism. See Mendiola v. Schomig ,
But given the extent to which the conviction rests on M.A.'s testimony, we are not prepared to say that Arnold's claim cannot possibly meet the Schlup gateway standard (or whatever incrementally higher standard might govern a freestanding claim of actual innocence) when no factfinder has yet heard M.A. testify under oath on the matter of his recantation. M.A.'s recantation, if it represents the truth, would by itself exonerate Arnold as a factual matter. See , e.g. , Lopez v. Trani ,
Whether Arnold's claim of innocence meets the Schlup standard can only be determined after M.A.'s new account of events is subjected to adversarial testing under oath before a factfinder, so that the credibility and reliability of the recantation may be assessed. The Wisconsin courts themselves never passed on the credibility of M.A.'s recantation. Cf. Mendiola ,
The district court, like the state court, presumed that no such hearing was necessary, because the jury had heard defense witnesses recount M.A.'s alleged pre-trial, out-of-court statements denying that Arnold had sexually assaulted him. To that extent, the matter of M.A.'s inconsistent statements on the question of Arnold's guilt was already before the jury, and the jury, in convicting Arnold, obviously believed his trial testimony nonetheless. Thus, in the state court's view, M.A.'s post-trial recantation did not constitute new evidence for purposes of his request for a new trial. And based on that understanding of M.A.'s affidavit, the district court was convinced that "Arnold cannot prove that no reasonable juror would have convicted him [and therefore he] cannot satisfy the requirements for the actual innocence exception." R. 17 at 5 (emphasis in original).
Neither party has considered what weight, if any, we must give to the state appellate court's finding that M.A.'s recantation was cumulative. The court made that finding in resolving a question of state *841law (whether the recantation entitled Arnold to a new trial under section 974.06 ) rather than a federal constitutional claim.
The Wisconsin Court of Appeals' decision treated M.A.'s prior inconsistent statements regarding the sexual assaults as recantations, and in that sense viewed them as the equivalent of M.A.'s post-trial affidavit disavowing his trial testimony, but the inconsistent statements and the affidavit are two very different things. A recantation is generally understood to be the formal renunciation or withdrawal of one's prior statement or testimony. BLACK'S LAW DICTIONARY 1459 (10th ed. 2014). We may set aside the obvious point that any out-of-court statements that M.A. made prior to trial were not under oath and assume that one could treat the statements Behm and Augsburger attributed to M.A. as recantations of the report he had given to the authorities-if he acknowledged making those statements. But M.A. did not, in fact, acknowledge making those statements to Behm and Augsburger; he unequivocally denied having said to either Behm or Augsburger that nothing had happened between himself and his father. R. 31-2 at 267, 269, 275-76; R. 31-3 at 623-24. And the jury, of course, could well have chosen to credit M.A. on this point: Behm and Augsburger, after all, were both close to Arnold (Behm was Arnold's aunt and Augsburger was his good friend). Given the possibility that the jury could have believed the alleged recantations to be a fiction concocted by defense witnesses, it is *842inaccurate to say that M.A.'s "recantations" were already before the jury. M.A.'s post-trial affidavit, by contrast, indubitably is his own statement,
The appropriate step, then, as the State recognizes, is for us to remand the case to the district court for an evidentiary hearing at which the credibility of M.A.'s recantation can be assessed along with the probable impact that the recantation would have had on reasonable jurors. As Schlup makes clear, any reliable evidence bearing on the veracity of the recantation and on Arnold's guilt or innocence may be considered in making these assessments.
Our decision to remand for a hearing should not be understood as reflecting any finding or impression on our part as to the reliability and credibility of the recantation. That is a question for the factfinder. We hold only that, taking M.A.'s affidavit at face value, Arnold has a plausible claim of actual innocence entitling him to an evidentiary hearing.
If, upon hearing and weighing the evidence, the district court concludes that no reasonable juror would have found Arnold guilty beyond reasonable doubt in view of M.A.'s recantation, then Arnold will be entitled to pursue his habeas petition notwithstanding its tardiness under section 2244(d)(1). At that point, it will be necessary to consider whether his freestanding claim of actual innocence presents a viable claim for relief in habeas and what standard of proof Arnold would have to meet in order to prevail on that claim. If, on the other hand, the court concludes that a reasonable juror could still have convicted Arnold beyond a reasonable doubt notwithstanding M.A.'s recantation, then his petition must be dismissed as untimely.
III.
The judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
Wisconsin law provides for a unitary review process pursuant to which a defendant, following his conviction, first files a post-conviction motion for purposes of making any challenges to his conviction not already raised and resolved at trial. Once that motion has been disposed of, he may file a consolidated appeal of both his conviction and the ruling on his request for post-conviction relief. § 974.02 ; see Page v. Frank ,
The record before us is silent as to the reasons for Arnold's delay in filing the motion.
Arnold's petition also asserted that the state courts had misapplied, and/or abused their discretion in applying, certain Wisconsin statutory provisions and had deprived him of his rights to due process and equal protection under the Wisconsin constitution. But because a section 2254 petition is aimed at vindicating a petitioner's federal rights, errors of state law are not cognizable on habeas review. See § 2254(a) ; see also , e.g. , Dellinger v. Bowen ,
It is also unsettled what particular standard of proof a petitioner would have to meet in order to be entitled to relief on a freestanding claim of innocence. See Herrera ,
Perrone dealt with a challenge per
The psychologist was of course not addressing the veracity of M.A.'s affidavit, which post-dated the trial. She had neither met M.A. nor evaluated the reliability of his account of the abuse his father inflicted upon him. That said, her testimony, and other expert opinion in a similar vein, would be quite relevant to an evaluation of the credibility and reliability of M.A.'s recantation and the strength of Arnold's claim of actual innocence.
Because Arnold's conviction rests substantively on M.A.'s testimony, this case may be contrasted with others in which the newly proffered evidence of innocence did not by itself exonerate the petitioner or there was additional evidence of the petitioner's guilt apart from the testimony supplied by a recanting witness. See , e.g. , Davis ,
Wisconsin law does not currently recognize a claim of actual innocence based on newly discovered evidence. See State v. McAlister ,
There is no suggestion that the affidavit is not genuine.
Reference
- Full Case Name
- Richard M. ARNOLD v. Michael A. DITTMANN, Warden, Columbia Correctional Institution
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- 93 cases
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- Published