Lunsford v. Green

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CODY REID LUNSFORD,
Petitioner,
v.
MARGARET GREEN, warden,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. CIV-25-276-D
ORDER
This matter is before the Court for review of the Report and Recommendation
(“Report”) [Doc. No. 19] issued by United States Magistrate Judge Shon T. Erwin pursuant
to 28 U.S.C. § 636(b)(1)(B) and (C). The Report recommends granting Respondent’s
Motion to Dismiss [Doc. Nos. 11, 12] and dismiss the Petition because it is time barred.
Petitioner timely objected. [Doc. No. 22]. Accordingly, the Court must make a de novo
determination of those portions of the Report to which a specific objection is made, and
may accept, modify, or reject the recommended decision in whole or in part. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3).
BACKGROUND
Petitioner, a state prisoner, brought this action seeking a writ of habeas corpus under
28 U.S.C. § 2254, seeking relief from his conviction and sentence for one count of child
abuse by injury in Pottawatomie County District Court, Case No. CF-2015-339 (“State
Matter”). [Doc. No. 1]. Judge Erwin recommends that the Petition be deemed time barred
under the one-year limitation period of 28 U.S.C § 2244(d). [Doc. No. 19]. Judge Erwin
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 1 of 10

2
also concludes that no basis exists for statutory or equitable tolling of the one-year
limitations period. Id.
In his objections, Petitioner does not dispute Judge Erwin’s historical account of the
state court proceedings; thus, the Court accepts this portion of the Report.1 [Doc. No. 22].
Nor does Petitioner raise any specific objection to Judge Erwin’s analysis of the
untimeliness of the Petition under 28 U.S.C. § 2244(d). Id. However, Petitioner objects to
Judge Erwin’s determination that Petitioner did not present a “credible” claim of actual
innocence to warrant an equitable tolling of the limitations period.2 Id.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-
year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone,
182 F.3d 1153, 1154 (10th Cir. 1999). However, courts may excuse noncompliance with
the AEDPA’s one-year limitations period if a petitioner makes “a credible showing of actual
innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). When used to overcome
procedural issues, “a claim of ‘actual innocence’ is not itself a constitutional claim, but
1 Petitioner has waived further review of all issues as to which no specific objection is
made. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
2 The Court recognizes that Petitioner lists six objection headings in his Objection to the
Report. [Doc. No. 22]. The Court construes Petitioner’s arguments in sections “Objection
One,” “Objection Two,” “Objection Four,” and “Objection Six” as challenging the Report’s
conclusion that he failed to make a credible showing of actual innocence. Moreover, in
“Objection Three” Petitioner objected to Respondent’s purported failure to contest his
claims in state court, and in “Objection Five” he objected to the Report’s criticism of his
failure to submit records that he cited to in his Petition. Petitioner fails to present any
argument or cite any legal authority establishing that “Objection Three” or “Objection
Five” affects the determination of whether his claims are time-barred, nor is the Court
aware of any. Thus, the Court need not and does not address them.
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 2 of 10

3
instead a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404
(1993). “[A] petitioner need not make a case of conclusive exoneration,” Fontenot v. Crow,
4 F.4th 982, 1030 (10th Cir. 2021) (quotation and citation omitted). However, the standard
is “demanding.” McQuiggin, 569 U.S. at 401. “[T]enable actual-innocence gateway pleas
are rare.” Id. at 386. Indeed, they arise only “in an extraordinary case.” Murray v. Carrier,
477 U.S. 478, 496 (1986).
To present a “credible” claim of actual innocence, a petitioner must “support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The Tenth Circuit
interprets “new reliable evidence” broadly, to include any evidence that was not presented
at trial, regardless of whether such evidence is newly discovered. See Fontenot, 4 F.4th at
1032-33.
If “new reliable evidence” exists, then the petitioner must demonstrate that when
considering the new evidence “it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. And “[w]hile
a gateway innocence claim requires new reliable evidence to be credible, the habeas court’s
analysis is not limited to such evidence.” Fontenote, 4 F.4th at 1052 (quotation and citation
omitted). “Rather, the habeas court must consider all the evidence, old and new,
incriminating and exculpatory, and thereby reasonably base its probabilistic determination
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 3 of 10

4
about what reasonable, properly instructed jurors would do on the total record.” Id.
(quotation and citation omitted).
Although the actual innocence test does not require a showing of diligence, the
federal habeas court “should count unjustifiable delay on a habeas petitioner’s part, not as
an absolute barrier to relief, but as a factor in determining whether actual innocence has
been reliably shown.” McQuiggin, 569 U.S. at 387.
Petitioner argues that his new evidence3 clearly indicates that the baby’s (referred to
herein as A.G.) injuries were not caused by abuse. [Doc. No. 22]. Specifically, Petitioner
argues that the new evidence shows that A.G.’s condition and symptoms were caused by
meningitis, sepsis, or clotting disorders, which were not properly diagnosed or treated. Id.
Petitioner argues that the physicians’ failures to properly diagnose and treat A.G.’s illnesses
were the causes of A.G.’s harm. Id. Moreover, Petitioner argues that the new evidence
demonstrates that A.G. did not suffer a skull fracture. Id.
Petitioner relies upon three categories of new evidence: 1) evidence from Dr. Lori
Crow, 2) evidence from Dr. Kathryn Cook, and 3) evidence from Dr. Harvey Jenkins.
Approximately one week prior to the incident, Dr. Crow treated A.G. for acute otitis
media (an ear infection), which she stated could be caused by bacteria or a virus. [Doc. No.
12-12, at p. 3]. 	Dr. Crow prescribed amoxicillin for the ear infection. Id. In response to
3 In his objections, Petitioner does not dispute Judge Erwin’s determination that Petitioner’s
evidence from Dr. Lori Crow, evidence from Dr. Kathryn Cook, and evidence from Dr.
Harvey Jenkins constituted “new evidence” as “it is evidence that had not been presented
at trial.” [Doc. No. 19, at p. 15-19]. Thus, the Court accepts this portion of the Report.
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 4 of 10

5
written deposition questions, Dr. Crow answered that she would have prescribed to A.G. a
different antibiotic than amoxicillin, if A.G.’s bloodwork had detected the presence of the
Enterobacter Cloacae, Viridans Streptococcus Group, or Staphylococcus, Coag Negative.
Id. at p. 4. Dr. Crow did not dispute that these three bacteria could cause meningitis. Id. at
p. 4-5. Petitioner argues that Dr. Crow’s responses clearly show the baby was sick with an
“organism” prior to the date of the incident in question, and that such illness had gotten
progressively worse. [Doc. No. 22, at p. 4].
Dr. Cook treated A.G. on the date of the incident. In response to a written deposition
question, Dr. Cook provided that she could not recall how she learned of A.G.’s skull
fracture. Id. at p. 6. Petitioner argues that Dr. Cook’s inability to recall how she learned of
the skull fracture supports his assertion that A.G. did not suffer from a skull fracture.
Petitioner does not identify any other specific evidence from Dr. Cook that he alleges
supports his claim of “credible” innocence. Compare [Doc. No. 1, at p. 21-32] with [Doc.
No. 12-11]. Rather, he generally asserts that Dr. Cook’s answers to the written deposition
questions were based on science and are exculpatory, and contrary to the Report’s
determination. [Doc. No. 22, at p. 4].
Dr. Jenkins reviewed the evidence from Drs. Crow and Cook, Dr. James Glenn’s4
report interpreting A.G.’s CT scan, Dr. Sandeep Prabhu’s5 report interpreting A.G.’s
skeletal survey, as well as medical records from St. Anthony’s and OU Children’s hospitals,
4 At the time of the incident, Dr. Glenn was a radiologist at St. Anthony’s who reviewed
the images from A.G.’s CT scan.
5 At the time of the incident, Dr. Prabhu was a radiologist at OU Children’s hospital who
reviewed A.G.’s skeletal survey.
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 5 of 10

6
and transcripts of the trial testimony, and concluded that A.G. did not suffer a skull
fracture. 6 [Doc. No. 12-14, at p. 13]. Additionally, Dr. Jenkins concluded that:
It is my opinion that the swelling of the brain was the result of
infection by an organism. The records indicate Disseminated
Intravascular Coagulation which also [is] indicative of sepsis.
The elevated platelet count, noted in St. Anthony’s and O.U.
Children’s confirms “thrombocytosis” which is a reactive
response to infection. Clotting abnormalities such as that which
occurs 	in 	DIC 	involve 	small 	blood 	clots 	which 	develop
throughout the body with associated hemorrhage. I believe this
phenomenon 	is 	responsible 	for 	the 	finding 	of 	retinal
hemorrhage, subdural hematoma and petechiae.
Id. at p. 14. Petitioner argues that Dr. Jenkins’ conclusion “shows problems caused by
organisms in the baby’s blood, and that is consistent with the evidence.” [Doc. No. 22, at
p. 5].
Considering Petitioner’s new evidence in conjunction with the evidence presented
at trial, the Court agrees with the Report’s finding that Petitioner has failed to establish that
“it is more likely than not that no reasonable juror would have found [him] guilty beyond
a reasonable doubt.” Schlup, 513 U.S. at 327. Indeed, Detective Charles Swantek’s
testimony at the trial in the State Matter regarding A.G.’s injuries and his interview with
Petitioner regarding Petitioner’s explanation of the cause of A.G.’s injuries do not support
Petitioner’s claim of innocence. As noted by Judge Erwin, Detective Swantek testified
about A.G.’s injuries, including jawline bruising, inner ear bruising, a laceration on A.G.’s
6 The Court has strong doubts as to the credibility of Dr. Jenkins’ report as he no longer has
a medical license, has a significant number of criminal convictions, and lacks experience
in pediatric medicine. [Doc. Nos. 12, at p. 19-21]. However, the Court need not address his
credibility because even considering Dr. Jenkins’ evidence, Petitioner has not demonstrated
a credible claim of innocence.
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 6 of 10

7
left lower cheek, bruising around both eyes and her forehead, left ear bruising and petechia
in the corner of the left eye. [Doc. No. 13-1, at p. 352-56]. Moreover, Detective Swantek
testified to the incompatibility of Petitioner’s explanation as to the cause of A.G.’s injuries,
i.e. rolling off the bed, with the scene in the home and the severity and location of A.G.’s
injuries. Id. at p. 409-12.
Moreover, the trial testimony of Dr. Ryan Brown, a child abuse pediatrician, in the
State Matter also weighs against Petitioner’s claim of innocence. Dr. Brown testified
regarding A.G.’s injuries, and the incompatibility of Petitioner’s explanation regarding the
cause of A.G.’s injuries considering their severity and location. Id. at p. 457-68. Indeed,
Dr. Brown testified about the head being essentially a round ball, and A.G.’s face showing
bruising from six points of contact, which would be “hard to explain” based on Petitioner’s
story about A.G. rolling off the bed and striking her head on the nightstand, as that would
be one-point of contact. Id. at p. 458-61. Moreover, he testified that if a four-month-old
baby has bruising in its ears, like A.G., it is “very concerning for . . . abuse” as a baby that
young does not have the dexterity to dig in their ears to cause bruising. Id. at p. 463-64.
Further, Dr. Brown testified that A.G. suffered from a skull fracture and suffered a subdural
hematoma, which were “highly concerning for abuse.” Id. at p. 468-73.
Moreover, contrary to Petitioner’s assertion, there is evidence that A.G. suffered a
skull fracture, which was admitted at trial in the State Matter. [Doc. No. 14-2, at p. 20-23].
Dr. Naina Gross, the attending pediatric neurologist, observed a skull fracture on A.G.’s
images from the CT scan and noted it in her February 27, 2015, consultation note. Id.
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 7 of 10

8
The Court also agrees with Judge Erwin’s finding that Dr. Crow’s evidence does not
show that A.G.’s illness progressively got worse because she had the three other bacteria,
which would have required different medications to treat. [Doc. No. 19, at p. 22]. Dr. Crow
did not confirm that A.G. had the purported bacteria. Id. Rather, she stated that if such
bacteria were present then a different antibiotic would have been necessary for treatment.
Id.
Additionally, the Court agrees with Judge Erwin’s determination that the evidence
from Dr. Cook is not exculpatory. Id. at p. 22-23. Although in response to a written
deposition question Dr. Cook stated that she did not recall how she received the information
about A.G.’s skull fracture, that does not prove that there was no skull fracture. [Doc. No.
12-11, at p. 2]. Indeed, Dr. Cook also responded that it is possible the x-ray would not have
shown a new fracture, but the CT scan would, as it is more sensitive. Id. Moreover, Dr.
Cook answered that:
Retinal hemorrhages are highly associated with abusive head
trauma in infants under 6 months of age. The greater number
of retinal hemorrhages and the bilateral location increases the
likelihood of abusive head trauma. In my experience, I have
not seen bilateral retinal hemorrhages as the result of an
infection.
Id. at p. 5. She also opined that A.G.’s “elevated white blood cell count does not diagnose
an infection,” and believed the elevated platelet count was a “reaction to stress on the
body.” Id. at p. 6. Furthermore, she opined that:
In my note, that was written at the time of the encounter, I was
very clear that I felt her constellation of injuries: subdural
hematoma, bilateral retinal hemorrhages, multiple bruises on
the face, was very concerning for child abuse. The vast
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 8 of 10

9
majority of the patients I care for do have infectious causes for
their hospitalization. It is my medical judgment that A.G.’s
condition 	was 	caused 	by 	abusive 	head 	trauma 	and 	not
infection.
Id.
This Court also agrees with Judge Erwin’s determination that based on the totality
of the evidence, Dr. Jenkins’ report is insufficient to establish a “credible” claim of actual
innocence for Petitioner.
Accordingly, Petitioner has not presented a “credible” claim of actual innocence, as
he has not demonstrated that “it is more likely than not that no reasonable juror would have
found [him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. Thus, Petitioner’s
claim is time-barred.
CONCLUSION
The Court reviewed the Report, as well as the case record, and fully concurs in the
Report [Doc. No. 19]. Therefore, the Court, having conducted a de novo review, finds that
Petitioner’s objection [Doc. No. 22] should be overruled, and hereby ADOPTS the Report
[Doc. No. 19] in its entirety.
IT IS THEREFORE ORDERED that Respondent’s Motion to Dismiss [Doc. Nos.
11, 	12] 	is 	GRANTED, 	and 	the 	Petition 	[Doc. 	No. 	1] 	is 	DISMISSED 	WITH
PREJUDICE. A separate judgment shall be entered.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only if Petitioner “has
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 9 of 10

10
made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529
U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484. Upon consideration, the Court finds the requisite standard
is not met in this case. Therefore, a COA is DENIED.
IT IS SO ORDERED this 11 th day of February, 2026.
TIMOTHY 	. DeGIUSTI
Chief United States District Judge
Case 5:25-cv-00276-D Document 23 Filed 02/11/26 Page 10 of 10