The opinion of the court was delivered by: W. Daniel Schneider United States Magistrate Judge
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION*fn1
This is a Petition For a Writ of Habeas Corpus filed under 28 U.S.C. § 2254 by Carl Case, who is represented by counsel. Respondent filed an Answer and Motion to Dismiss in opposition to the Petition. Petitioner filed opposition to the Motion to Dismiss. In February 2010 the Court directed the parties to file supplemental briefs. The Court has read and considered all of the pleadings, briefs and evidence submitted by the parties. The United States Magistrate Judge, having considered the arguments of the parties, the record, relevant law, and being otherwise fully advised, finds and recommends that the Respondent's Motion to Dismiss With Prejudice be granted. The Court makes the following findings and recommended disposition.
Petitioner Carl Case was convicted by a jury on October 26, 1982 of first-degree murder and first-degree criminal sexual penetration of Nancy Mitchell, and sentenced to life imprisonment plus eighteen years. The New Mexico Supreme Court affirmed his convictions in a published opinion. State v. Case, 676 P.2d 241 (N.M. 1984). Subsequently, he unsuccessfully sought relief in the federal courts. Case v. Mondragon, 887 F.2d 1388 (10th Cir. 1989).
In 2004, Mr. Case filed a sworn, verified petition for a writ of habeas corpus in state district court. The petition arose from the recantations of trial testimony by two witnesses, the discovery of an untranscribed statement by a third witness, as well as more modern DNA testing that was performed at the request of habeas counsel. There was a lengthy evidentiary hearing in the state trial court, during which the two recanting witnesses, Audrey Knight and Paul Dunlap, testified under oath, and under threat of prosecution for perjury, that they had fabricated their 1982 trial testimony. Petitioner's trial counsel and the prosecutor offered testimony regarding the "missing" interview transcript of the third witness, Bobby Autry. The more modern DNA testing revealed no male DNA or sperm cells in the evidence taken from Ms. Mitchell's body. Ultimately, the district court denied the petition in a one page order.
Mr. Case was granted certiorari review in the New Mexico Supreme Court. That court denied relief in a written opinion. Case v. Hatch, 183 P.3d 905 (N.M. 2008). The court found the recantations of Knight and Dunlap cumulative and found that there was no suppression of materially favorable evidence by the prosecution in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, the New Mexico Supreme Court found that Petitioner's Brady claim failed for lack of materiality because there was no evidence presented at trial that Bobby Autry had harmed Nancy Mitchell, and Carl Case had testified that her death was accidental. The instant federal petition followed.
Because Mr. Case had previously sought habeas corpus relief in the federal courts, he was required to obtain permission to proceed from the Tenth Circuit Court of Appeals. Permission was granted in a written order on July 1, 2008.
On January 30, 1982, the body of Nancy Mitchell was discovered in Eddy County, New Mexico, outside of Carlsbad and near an area known locally as Six Mile Dam. The medical evidence at trial established that Nancy Mitchell had been dead for approximately three to six weeks at the time her body was discovered. She had bruises on her upper body and a fractured skull. The cause of death was exposure.
Ms. Mitchell was a teenager, and lived locally but had run away from home in early December, 1981. While a runaway, she stayed with friends and occasionally in hotels. The last undisputed sighting of Nancy Mitchell was approximately 9:00 or 10:00 p.m. on or about December 21, 1981, at the apartment of Ricky and Mary Worley. Mitchell spent the previous night at the Travelodge, but checked out that day and brought her clothes to the Worley residence. Ricky's brother Curtis Worley drove her to the apartment. Also present were Mike Tweedy, Bobby Autry and Randy Davis. Ricky and Mary Worley had been in communication with Nancy Mitchell's parents, trying to get her to go home, and were led to believe that Ms. Mitchell was going home that night. Ms. Mitchell left the residence with Bobby Autry, who claimed that he drove around with her for some time until he dropped her off at the Dairy Queen where he last saw her talking to two unknown men in a blue pickup. According to Mary Worley, when Nancy Mitchell left the apartment with Bobby Autry she was wearing the same clothing in which the body was found.
On March 9 and March 14, 1982 a local teenager, Audrey Knight, gave statements to the police implicating six local men in the death of Nancy Mitchell. Although there were differences between the two statements, the gist of Knight's story was that at a party the night of January 1, 1982 she heard Curtis Worley, Carl Case, Mike Tweedy, Joe Brown, Paul Dunlap, and Randy Davis*fn2 talking about "gang banging" Nancy Mitchell. Shortly thereafter she saw the six men, plus Nancy Mitchell, leave the party together in Worley's Mercury Cougar. According to Knight, she was concerned for Mitchell's safety, and after fifteen minutes or so left the party in her truck to see whether she could find the group. She claimed that she saw the Cougar stopped near Six Mile Dam and pulled up to it. She claimed that she saw Nancy Mitchell with her shirt off, pinned across the seat of the car by Mike Tweedy. She stated that Carl Case walked up to her car and told her to leave. According to Knight, Nancy Mitchell called to her for help, but she left and spent the rest of the night by herself, thinking. She also stated that the next day she heard Carl Case and Curtis Worley talking about raping and knifing*fn3 Nancy Mitchell. Knight denied seeing Bobby Autry leave the party with the other six men, and denied seeing him at the scene of the alleged rape. Knight said that she had received anonymous threatening phone calls in which the caller told her she'd be harmed if she told anyone what she had seen. She said she believed the phone calls were from Carl Case.
Bobby Autry was interviewed on January 30, February 3, March 5 and March 12, 1982. Autry originally denied having any knowledge of the crime, and denied having any sexual encounters with Nancy Mitchell, but on February 3 admitted that he and Nancy had gotten undressed on December 19, 1981*fn4 in his car while parked at the Flumes, and that he had partially penetrated her before she pushed him off of her. He told the police that he first lied to them about this incident because, although he had heard that Nancy Mitchell had been found dead, he did not know whether she had been raped or not, and he did not want to be implicated. He told the police that he was "teed off" when she pushed him away, but that they ended up going to a party where Nancy stayed with him for 30 or 40 minutes before going to talk to Corbin Price.
Autry said that the day after the party he saw Nancy at the Worleys', and went over to speak to her. Autry claimed that he and Nancy drove around for awhile, and that she wanted to sleep in his car. Autry said he didn't feel well that night, and told her he was going to go home. According to Autry, Nancy Mitchell told him she saw friends at the Dairy Queen, and asked to be dropped off there, and started talking to two unknown males in a blue compact pickup truck.
In Autry's February 3 statement he said that this was the last time he saw her. In his March 5 statement he told the police that he believed that he had seen Nancy Mitchell in town a few nights later, but that he couldn't be certain.
On March 12, 1982 Autry took and failed a polygraph. After receiving the results of the polygraph and speaking with his father he gave a final statement to the police in exchange for immunity. Autry told the police that he was in town one night when he was picked up by Curtis Worley in his black Cougar. Also in the vehicle were Carl Case, Nancy Mitchell, Mike Tweedy, and Joe Brown in the back seat. Autry got in the front with Worley and Paul Dunlap. After driving around town, the seven of them drove out near Six Mile Dam to drink beer. Autry denied that they went to a party or met up with other people before going to the dam. Autry stated that after they got out of the car Curtis Worley hit Nancy Mitchell with his fist, knocked her to the ground, and tore her pants open. Autry did not see anybody remove Ms. Mitchell's shirt. Someone else, possibly Joe Brown, hit her in the back of the head with a stick or pipe. Autry said he ran off, but heard Nancy Mitchell yelling for help and saw the others on top of her. Autry did not see anybody else show up at the scene, but claimed to have seen the others attacking Mitchell on the ground and then putting her back into the car. Autry said that he received threatening phone calls telling him not to tell anyone about what he had seen.
Paul Dunlap was arrested in March 1982 for the rape and murder of Nancy Mitchell. The prosecution made a motion to try him as an adult. That motion was denied, and the state appealed the decision. After approximately six months in jail, and on the day before the Appellate Court issued its opinion affirming the denial of the motion to try him as an adult, Dunlap accepted the state's offer of complete immunity in exchange for his testimony against Carl Case and the others charged with raping and murdering Nancy Mitchell. Dunlap told police that he attended a party near Six Mile Dam on the night of January 1, 1982. He got a ride out to the party and after several hours was looking for a ride back home. He said he saw Curtis Worley leaving the party and asked him for a ride. According to Dunlap, Joe Brown and Bobby Autry were in the back seat with him, and Curtis Worley, Nancy Mitchell and Carl Case were in the front seat of the car. According to Mr. Dunlap Mike Tweedy was not in the car and was not at the scene of the crime.
Dunlap wasn't sure where the car stopped after leaving the party, but it was in the area of Six Mile Dam. Mr. Dunlap told the police that, after stopping the car, Worley suddenly pulled Ms. Mitchell out of the car and slapped her down to the ground. At that point he was joined by Joe Brown and Carl Case, who took Ms. Mitchell's shirt and bra off. At that point, they saw headlights coming and put Mitchell back into the car. Dunlap stated that he had gotten back in the car once the attack began, but that Audrey Knight drove up, and he and Carl Case went to talk to her. Dunlap stated that he never heard Ms. Mitchell call to Audrey for help. He further stated that while Knight was present, Mitchell was in the car with her pants on but her shirt off. After Ms. Knight ...