Gray v. Ballard, 4th Cir., filed 2/8/17: When Newly-Discovered DNA Evidence is “Timely” for Tolling under AEDPA. Not Good News for Habeas Petitioners

The State’s successful suppression of Brady material in connection with a scandal in the West Virginia State Police Crime Laboratory means that Petitioner cannot show “due diligence” in uncovering the factual predicates of his federal habeas claims.

This case offers a really tough lesson for habeas petitioners attempting to bring forensic evidence claims into court after the one-year statute of limitations under AEDPA has expired. Here, Gray was convicted in 1991 of murder. Gray gave a generally inculpatory statement, but the State also relied on the testimony of a serologist with West Virginia Police Crime Laboratory. Prior to trial, Gray’s lawyer made a motion for independent serological testing which the court granted, but the lawyer did not have performed. After his conviction, Gray was sentenced to life in prison.

In 1998, Gray filed a state petition for writ of habeas corpus. He raised several claims, but one of them was that tainted serology evidence had been presented at his trial by the state expert.  Specifically, he claimed that he had Type A blood type, and not Type B as testified to by the expert. Gray had only found out this fact after he underwent medical testimony in February 1998. That state petition is still pending!

On August 22, 2006, he filed a second petition. This time Gray’s petition focused on the issues he uncovered in light of a court-ordered investigation into the practices of the Serology Division of the West Virginia State Police Crime Laboratory.  During the course of that investigation, the evidence in Gray’s case was retested. It was determined that the expert’s testimony regarding several pieces of evidence in his case were “not supported by the data.” The investigators also noted that worksheets for some of the evidence appeared to have been altered. The West Virginia Supreme Court consolidated this petition with the earlier petition, and it, too, is still pending!

On September 27, 2013, Gray filed his federal habeas petition, and the State argued it was untimely.  Gray argued it was not untimely because he could not have earlier discovered either of the factual predicates for his claims with due diligence (his blood type, and the investigation report).  “Due diligence does not require ‘the maximum feasible diligence,’ but it does require reasonable diligence in the circumstances.”  Schlueter v. Varner, 384 f.3d 69, 74 (3d Cir. 2004) (quoting Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)).

Gray first argued that he did not know his blood type under 1998 when the medical testing was undertaken. The Court didn’t buy it. In its view, the United States Supreme Court has explained that a prisoner who attempts to use DNA test as a factual predicate must act with reasonable promptness once the DNA sample and testing are available– he is not permitted to wait “untold years” to have it done, and then claim that he has “discovered” the result and “get the benefit of the rejuvenated 1-year period regardless of his lengthy delay.”  Johnson v. United States, 544 U.S. 295, 310 (2005). Since blood testing technology existed for the entire length of his conviction, Gray is out of luck.  The Court also was not persuaded by his claim that his lawyer should have had the testing done since an attorney’s actions are imputed to his client.  Holland v. Jackson, 542 U.S. 649 (2004).  His lawyer’s failure to do it does not excuse Gray’s lack of due diligence. Also, Gray argued that he didn’t know that his lawyer didn’t do the testing, even though Gray asked him to do it.  Again, too bad, because the prisoner must exercise due diligence himself.

As for the investigation report– again, the Court found that Gray did not exercise due diligence because he could have discovered that the serology report was inaccurate if he had had independent testing done before trial.

The way I read this opinion is that if the State does a good job of suppressing Brady evidence, then a Petitioner is not going to be able to toll the statute of limitations in a habeas case since, after all, the problems here are the result of an expert witness providing materially inaccurate evidence at trial. But since trial counsel did not at least try to perform independent testing, Petitioner cannot show that he exercised due diligence. Harsh, harsh result in the case.  After this opinion was issued, Petitioner appealed to the United States Supreme Court. The petition for writ of certiorari was denied October 2, 2017.