Marcy v. Angol

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KRISTOPHER M. MARCY,
Petitioner,
v.
SARAH ANGOL,
Respondent.
Case No. 3:23-cv-00290-SLG
ORDER OF DISMISSAL
On December 28, 2023, Kristopher M. Marcy, a self-represented prisoner,
filed a Petition Under 28 U.S.C. § 2254 (“Section 2254”) for Writ of Habeas Corpus
by a Person in State Custody and a motion for court-appointed counsel.1 On
January 2, 2024, the Court notified Mr. Marcy that his filing was deficient because
he did not pay the filing fee or file an application to waive prepayment of the filing
fee.2 Mr. Marcy paid the filing fee on January 4, 2024.3 The Court takes judicial
1 Dockets 1-2.
2 Docket 3.
3 Filing fee: $5 (receipt number 100020875) (entered 01/04/2024).
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notice4 of Mr. Marcy’s underlying criminal conviction, his subsequent state court
appeals, and post-conviction proceedings.5
SCREENING REQUIREMENT
Under Rule 4 of the Rules Governing Section 2254 Cases, a federal court
is required to conduct a preliminary review of all petitions for writ of habeas corpus
filed by state prisoners. A court must dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court.”6 Upon screening, it plainly appears that Mr. Marcy is not entitled
to habeas relief pursuant to Section 2254, so his petition must be dismissed.
DISCUSSION
I. Procedural History
Mr. Marcy was convicted, following a jury trial, of first-degree murder, first-
degree sexual assault, and first-degree burglary for sexually assaulting and killing
a 59-year-old woman on her property in 1988.7 Mr. Marcy’s convictions were
affirmed on direct appeal.8 Mr. Marcy was “convicted in part based on testimony
4 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a
party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact.”
BLACK’S LAW DICTIONARY (11th ed. 2019); see also Fed. R. Evid. 201; Headwaters Inc. v. U.S.
Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another
tribunal are appropriate for judicial notice.”) (internal quotation marks and citation omitted).
5 The docket records of the Alaska Trial Courts and the Alaska Appellate Courts may be
accessed online at https://courts.alaska.gov/main/search-cases.htm.
6 Rule 4 of the Rules Governing Section 2254 Cases.
7 State of Alaska v. Marcy, Case No. 4FA-88-01735CR. See also Alaska Stat. § 11.41.100,
former Alaska Stat. § 11.41.410(a)(1) (1988), and Alaska Stat. § 11.46.300(a)(1), respectively.
8 Marcy v. State, 823 P.2d 660 (Alaska App. 1991).
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from an FBI hair comparison and hair analysis expert … ”9 In 2015, the FBI sent a
letter to Mr. Marcy and the State explaining that a nationwide review of cases
involving microscopic hair comparisons had determined that the FBI expert who
testified at Mr. Marcy’s trial had provided testimony that “exceeded the limits of
science.”10
On June 22, 2015, Mr. Marcy filed an application for post-conviction relief in
state court arguing his conviction should be vacated due to the tainted FBI expert
testimony, which he maintained constituted “newly discovered evidence,” which
would exempt the claim from the statutory deadlines that would otherwise apply, if
the newly discovered evidence “establishes by clear and convincing evidence that
the applicant is innocent.”11 Mr. Marcy also argued that he was only required to
prove that the exclusion of the tainted testimony would “probably produce an
acquittal” when evaluated with the totality of the evidence that would be available
at a new trial. As recounted by the Alaska Court of Appeals, the trial court “ruled
that this standard did not apply and determined that Marcy failed to prove his
innocence under any evidentiary standard in light of the other evidence support his
guilt. Lastly, the superior court rejected Marcy’s due process claim that the tainted
FBI testimony had rendered his trial “fundamentally unfair.”12
9 Marcy v. State, 2023 WL 3607177, *1 (Alaska App. 2023) (unpublished).
10 Id.
11 Id. (citing Alaska Stat. § 12.72.020(b)(2).
12 Id. (footnote omitted).
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The Alaska Court of Appeals affirmed the dismissal, concluding that Mr.
Marcy’s claims were barred by the statute of limitations regardless of which
evidentiary standard applied, because that court “agree[d] with the superior court
that the evidence of Marcy’s guilt was overwhelming, even absent the tainted FBI
expert testimony.”13 On October 20, 2023, the Alaska Supreme Court denied Mr.
Marcy’s Petition for Hearing.14
II. Equal Protection
Mr. Marcy claims that the Department of Justice has waived any statute of
limitations defense for federal prisoners challenging convictions based on faulty
testimony under 28 U.S.C. § 2255.15 He asserts that the Equal Protection Clause
of the 14th Amendment “requires that Marcy’s Federal Petition for Habeas Corpus
be received as timely filed just as the federal prisoners petitions of habeas corpus
are received as timely filed.”16
The Equal Protection Clause requires that all persons who are similarly
situated be treated alike. Although many prisoners may have been affected by
testimony that “exceeds the limits of science,” the fact that federal and state
prisoners are subject to different procedures for and barriers to post-conviction
relief does not violate the Equal Protection Clause; nor does that clause require
13 Id., at *2.
14 Docket 1 at 7; Marcy v. State, Supreme Court Case No. S-18789 (Alaska 2023).
15 Docket 1 at 13-14.
16 Docket 1 at 14.
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that this Court disregard the Alaska Court of Appeals’ determination that the post-
conviction motion was untimely under state law.17
III. Federal Habeas Relief
To respect federal-state dual sovereignty, the availability of federal habeas
relief is narrowly circumscribed.18 Federal courts “reviewing the constitutionality of
a state prisoner's conviction and sentence are guided by rules designed to ensure
that state-court judgments are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our system of
federalism.”19 Before a federal court reaches the merits of a habeas claim arising
from state criminal proceedings, it must consider certain preliminary issues, such
as the exhaustion requirement and the procedural default doctrine. Together, the
exhaustion requirement and the procedural default doctrine promote federal-state
comity by affording States “an initial opportunity to pass upon and correct alleged
violations of prisoners' federal rights,” and by protecting against “the significant
harm to the states that results from the failure of federal courts to respect” state
procedural rules.20
17United State v. Antelope, 97 S. Ct. 1395,1400 (1977) (“[I]t is of no consequence that the
federal [criminal code] differs from a state criminal code otherwise applicable within the
boundaries of the State of Idaho. Under our federal system, the National Government does not
violate equal protection when its own body of law is evenhanded, regardless of the laws of
Sates with respect to the same subject matter.” (footnotes omitted)).
18 Shinn v. Ramirez, 596 U.S. 366 (2022).
19 Martinez v. Ryan, 566 U.S. 1, 9 (2012).
20 Coleman, 501 U.S. at 750.
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A state prisoner must properly pursue his federal claims through one
complete round of the state's established direct appeal process or post-conviction
proceedings before a federal court may consider an application for a writ
of habeas corpus.21 Here, Mr. Marcy has exhausted his state court remedies with
respect to his post-conviction relief claims. However, he has been procedurally
defaulted from pursuing his federal claims in state court pursuant to an
independent and adequate state procedural rule—Alaska Statute §
12.72.020(b)(2) . Moreover, if a state court applies a procedural bar, but goes on
to alternatively address the merits of any federal claims, those claims are still
barred from federal review.22 In the case of a procedural default such as this,
federal habeas review of the claims is barred unless a petitioner can demonstrate
(1) cause for the default and actual prejudice to excuse the default, or (2) a
miscarriage of justice/actual innocence.23
21 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v.
Thompson, 501 U.S. 722, 731 (1991).
22 See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a
federal claim in an alternative holding. By its very definition, the adequate and independent state
ground doctrine requires the federal court to honor a state holding that is a sufficient basis for
the state court's judgment, even when the state court also relies on federal law.... In this way, a
state court may reach a federal question without sacrificing its interests in finality, federalism,
and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state
court's application of a procedural rule is not undermined where, as here, the state court
simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
23 28 U.S.C. § 2254(c)(2)(B); Martinez v. Ryan, 566 U.S. 1 (2012); Schlup v. Delo, 513 U.S. 298,
321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
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(1) Cause and Actual Prejudice
To satisfy the “cause” prong of the cause and prejudice standard, a
petitioner must show that some objective factor external to the defense prevented
him from complying with the state's procedural rule.24 To show “prejudice,” a
petitioner “must shoulder the burden of showing, not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.”25 The Supreme Court has “refrained from giving precise content to
the term prejudice.”26 However, the showing of prejudice is significantly greater
than the showing necessary for plain error for direct appeals.27
(2) Miscarriage of Justice/Actual Innocence
The miscarriage of justice exception to procedural default “is limited to
those extraordinary cases where the petitioner asserts his [actual] innocence and
establishes that the court cannot have confidence in the contrary finding of guilt.”28
Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to
support his allegations of constitutional error with new reliable evidence–whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
24 Murray v. Carrier, 477 U.S. at 488.
25 United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
26 Frady, 456 U.S. at 168 (internal quotations omitted).
27 See Murray v. Carrier, 477 U.S. at 493–94.
28 Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original).
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physical evidence.”29 A 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.”30
Because of “the rarity of such evidence, in virtually every case, the allegation of
actual innocence has been summarily rejected.”31
IV. Mr. Marcy’s Claims are Procedurally Barred
Because the state courts determined that any claims for post-conviction
relief were barred by Alaska’s statute of limitations, Mr. Marcy may not bring his
habeas claims in federal court without showing cause and prejudice or actual
innocence.32
A. Cause
Given the circumstances surrounding the “review of microscopic hair
comparison reports and testimony presented by the FBI Laboratory before
December 31, 1999,” the Court concludes that Mr. Marcy could not have
discovered that the Agent's testimony was flawed prior to receiving the 2015
letter.33 Therefore, Mr. Marcy has established cause for his delay in seeking post-
conviction relief on this basis.
29 Schlup v. Delo, 513 U.S. at 324; see also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013)
(explaining the significance of an “[u]nexplained delay in presenting new evidence”).
30 McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)).
31 Shumway v. Payne, 223 F.3d 982, 990 (citing Calderon v. Thompson, 523 U.S. 538, 559
(1998)).
32 28 U.S.C. § 2254(b)(1).
33 See, e.g., Crump v. May, 2023 WL 2240289, at *5-6 (D. Del. 2023) (unpublished); FBI Agents
Gave Erroneous Testimony in at Least 90% of Microscopic Hair Analysis Cases, INNOCENCE
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B. Actual Prejudice
To claim “that new evidence casts doubt, even grave doubt, on the
correctness of a conviction is not a ground for relief on collateral attack.”34 Actual
prejudice is only demonstrated when a defendant is denied “fundamental fairness”
at trial.35 To warrant federal habeas relief based on the use of false testimony, a
petitioner must establish that: (1) the testimony was actually false, (2) the
prosecution knew or should have known it to be false, and (3) the false testimony
was material to the conviction.36
Generally, prejudice must be demonstrated based on the record before the
state court in the collateral review proceeding.37 In this case, the state courts
rejected Mr. Marcy’s due process claims that the tainted testimony rendered his
trial “fundamentally unfair.”38 Citing to the “overwhelming” amount of other
incriminating evidence presented at his trial, the state courts determined his
PROJECT (Apr. 20, 2015), available at https://innocenceproject.org/fbi-testimony-on-microscopic-
hair-analysis-contained-errors-in-at-least-90-of-cases-in-ongoing-review/, last visited February
22, 2024.
34 United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (citing Conley v. United
States, 323 F.3d 7, 14 (1st Cir.2003) (en banc).
35 Frady, 456 U.S. at 170.
36 Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). See also Van Arsdall, 475 U.S. at 684
(listing “the importance of the witness' testimony” and “whether the testimony is cumulative” as
factors relevant to materiality).
37 Shinn, 596 U.S. at 386.
38 Marcy v. State, Case No. A-13770, 2023 WL 3607177, at *1 n.5 (Alaska Ct. App. 2023) (citing
United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (holding trial was not fundamentally
unfair where the testifying expert used significantly criticized, though not wholly unreliable
[compositional analysis of bullet lead] evidence)).
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conviction was supported by overwhelming evidence of guilt, even absent the
tainted FBI testimony.39
The Court agrees Mr. Marcy has failed to show the testimony worked to his
actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions. And Mr. Marcy has not alleged that the State knew or
should have known the FBI testimony was false when it was presented at trial.
Therefore, although Mr. Marcy has established cause for his late filing, the Court
finds Mr. Marcy has not shown he “has suffered the degree of actual prejudice
necessary to overcome society’s justified interests in the finality of criminal
judgments.”40
C. Miscarriage of Justice / Actual Innocence
Mr. Marcy has not demonstrated—nor even asserted—that he is innocent of
the crimes for which he was convicted. Further, in addition to the recounting all the
am evidence of his guilt presented at his criminal trial, the Alaska Court of Appeals
also noted that two post-conviction DNA tests “later established to a reasonable
degree of forensic certainty that Marcy’s DNA matched the DNA found on the
victim.41
39 Id.
40 Frady, 456 U.S. at 171.
41 Marcy v. State, Case No. A-13770, 2023 WL 360717 (Alaska Ct. App. 2023). See also 28
U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be
presumed to be correct.”).
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For the reasons above, Mr. Marcy is barred from pursuing his claims in
federal court pursuant to the procedural default doctrine.42
IT IS THEREFORE ORDERED:
1. The Petition under 28 U.S.C. § 2254 is DISMISSED with prejudice.
2. All pending motions are DENIED as moot.
3. The Clerk is directed to enter a Final Judgment and terminate this action.
4. A Certificate of Appealability shall not issue.43
DATED this 5th of March 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
42 Gray v. Netherland, 518 U.S. 152, 162 (1996).
43 28 U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of
appealability may be granted only if applicant made a “substantial showing of the denial of a
constitutional right,” i.e., a showing that “reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further” (internal quotations and citations omitted)).
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