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Yates v. Wachtendorf

United States District Court, N.D. Iowa, Western Division

November 5, 2019

DUANE LUVERNE YATES, Petitioner,
v.
WARDEN PATTY WACHTENDORF, Respondent.

          MEMORANDUM OPINION AND ORDER

          Leonard T. Strand, Chief Judge

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY .................... 3

         A. The Conviction ...................................................................... 3

         B. PCR-1 ................................................................................. 6

         1. Dismissal of PCR-1 ........................................................ 7

         2. Attempts to Reinstate and Reopen PCR-1 ........................... 10

         C. PCR-3 ............................................................................... 11

         D. Resentencing ....................................................................... 13

         E. PCR-4 ............................................................................... 14

         F. PCR-5 ............................................................................... 15

         G. Yates' Other Federal Cases ..................................................... 15

         H. The Present Petition .............................................................. 16

         III. MOTION TO STRIKE YATES' PRO SE SUPPLEMENTAL BRIEF ....................................................................................... 17

         IV. MOTION TO DISMISS STANDARDS ............................................... 19

         V. DISCUSSION .............................................................................. 20

         A. Habeas Corpus Standards ....................................................... 21

         B. Statute of Limitations ............................................................ 22

         1. Date Judgment Became Final .......................................... 22

         2. Statutory Tolling .......................................................... 25

         3. Equitable Tolling ......................................................... 26

         a. Extraordinary Circumstances .................................. 27

         b. Diligence ........................................................... 32

         VI. CERTIFICATE OF APPEALABILITY ............................................... 35

         VII. CONCLUSION ............................................................................ 37

         I. INTRODUCTION

         This matter is before me on two motions. The first is respondent Patty Wachtendorf's motion (Doc. No. 16) to dismiss Duane Yates' § 2254 petition (Doc. No. 1), arguing the petition is untimely and contains allegations that were not properly exhausted. Yates has filed a resistance (Doc. No. 32) and Wachtendorf has filed a reply (Doc. No. 35). On April 5, 2019, I held a hearing on the motion. See Doc. No. 65. Wachtendorf filed a supplemental brief following the hearing. Doc. No. 76. Yates filed a supplemental brief through his counsel (Doc. No. 77-1) as well as a pro se supplemental brief (Doc. No. 77-2). Wachtendorf waived the filing of a supplemental reply brief. Doc. No. 83.

         The second motion is Wachtendorf's motion (Doc. No. 78) to strike and seal Yates' pro se supplemental brief (Doc. No. 77-2). Yates has filed a resistance. Doc. No. 79. I previously granted the motion to seal and reserved ruling on the motion to strike. Doc. No. 80.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. The Conviction

         In August 2002, Yates was convicted of one count of sexual abuse in the second degree in violation of Iowa Code § 709.3(2) (2001). State v. Yates, No. 02-1681, 2003 WL 22697964, at *1 (Iowa Ct. App. Nov. 17, 2003). The Iowa Court of Appeals summarized the facts and trial proceedings of the state conviction as follows:

Duane and Martha Yates were married from November 1999 to April 2001. Martha's daughter, Amanda, often visited Duane and Martha at their home with her two sons, J.R. and A.D. The boys would often spend the night at the Yate's home and J.R. even resided with them for a period of time. This case arose from allegations by A.D. and J.R. that Duane Yates (Yates) had “molested” them. A.D. was eleven years old at the time of trial and J.R. was thirteen.
The State initially filed a trial information charging Yates with three counts of sexual abuse in the second degree and one count of lascivious acts with a child concerning A.D., and two counts of lascivious acts with a child concerning J.R. The State later amended the trial information to charge one count of sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2) concerning A.D. (Count I), one count of lascivious acts with a child in violation of section 709.8 concerning A.D. (Count II), and one count of lascivious acts with a child in violation of section 709.8 concerning J.R. (Count III). Each count alleged Yates had a prior conviction for a sexually predatory offense and sought sentencing enhancement pursuant to sections 901A.1(1)(a), 901A.1(2), and 901A.2(3).
Prior to trial Yates filed a motion in limine concerning his conviction in November of 1992 for sexual abuse in the third degree. The court ruled that the State was not to mention the previous conviction in its case in chief, but reserved ruling as to whether such conviction could be inquired into under Iowa Rule of Evidence 5.609 for impeachment purposes until after the direct testimony by Yates.
At the close of the State's case in chief Yates moved for a judgment of acquittal. The trial court granted the motion as to the two counts of lascivious acts with a child (Counts II and III) and denied it as to the sexual abuse charge (Count I).
During the presentation of the defense Yates called Maurice Rawe, the chief deputy city attorney for the city of Sioux City, as a character witness. Rawe testified that in his opinion Yates was a truthful person, and that Yates had a reputation of being a truthful person. During cross-examination the State requested that it be allowed to question Rawe about his knowledge of Yate's prior conviction. The court made a detailed ruling on the record. It noted that Yates had presented evidence of his character for truthfulness despite the fact his character for truthfulness had not been attacked, a violation of Iowa Rule of Evidence 608. It nevertheless denied the State's request and sustained Yate's objection to any such inquiry by the State at that time.
Yates later testified on his own behalf. He testified that both Martha and Amanda worked for his company and had misappropriated funds from his business. He further testified that he had “sued and won” monetary damages from Amanda and Martha for their misappropriation of funds. He also stated that his divorce from Martha was acrimonious and there were several legal proceedings pending between the two, including a child in need of assistance proceeding and a contempt charge against Martha for failing to comply with the divorce decree. After Yate's direct testimony the State requested that the court allow it to cross-examine Yates about his prior felony conviction for impeachment purposes.
After another detailed analysis of the issue on the record, the court found that the probative value of admitting evidence of the conviction did not outweigh its prejudicial effect if the jury was allowed to know what the conviction was for. However, the court reasoned further that it was not right
that this defendant take the stand and appear as a well-respected citizen in this community who is vouched for by the city attorney, got all these business dealings and got an insurance man on the stand for him and making a lot of critical statements about his former wife and making statements enhancing his credibility about how we got a judgment over in federal court against somebody. I just think that its probably necessary for this jury, if they're going to truly, correctly and, hopefully, in the best manner evaluate [Yate's] credibility that they do know that he's got a felony conviction.
The court therefore allowed the prosecutor to ask Yates whether he had a prior felony conviction, but prohibited the State from presenting evidence of what the conviction was for. The State asked Yates whether he had been convicted of a felony. He answered, “Yes.” Neither the State nor Yates presented any evidence as to the nature of the conviction or when it had occurred.
The jury found Yates guilty of sexual abuse in the second degree against A.D. [Count I.] The court sentenced Yates to a term of imprisonment required by law.

Id. at *1-2. The trial court applied a mandatory enhancement to Yates' sentence because he had been previously convicted of a sexually predatory offense. See State v. Yates, No. 12-2273, 2014 WL 2600212, at *1 (Iowa Ct. App. June 11, 2014). This raised Yates' term of imprisonment from 25 years to 50 years. See id.

         Yates appealed.[1] Yates, 2003 WL 22697964, at *2. He argued that his trial counsel was ineffective for failing to conduct any meaningful cross-examination of A.D. and for failing to request a mistrial or to strike the testimony of J.R. after the court granted his motion for judgment of acquittal on Counts II and III. Id. He further argued the trial court committed error in allowing the State to use a prior criminal conviction to impeach him. Id. On November 17, 2003, the Iowa Court of Appeals affirmed the trial court on the evidentiary issue and deferred Yates' arguments regarding ineffective assistance of counsel for postconviction relief (PCR) proceedings. Id. at *4. The Iowa Supreme Court declined further review on February 6, 2004. See Doc. No. 32-1 at 3; Doc. No. 76 at 7.

         After the conclusion of direct appeal, Yates continued to file various motions in his criminal case that were denied by the trial court. See, e.g., Motion for Reconsideration of Sentencing and Resentencing, State v. Yates, No. FECR050208 (Iowa Dist. Ct. Woodbury Cty. June 16, 2006); Motion to Vacate Judgment, State v. Yates, No. FECR050208 (Iowa Dist. Ct. Woodbury Cty. Mar. 13, 2008); Motion to Void Judgment on Newly Discovered Evidence, State v. Yates, No. FECR050208 (Iowa Dist. Ct. Woodbury Cty. Jan. 12, 2011); Motion for New Trial and Review of Facts After the Verdict, State v. Yates, No. FECR050208 (Iowa Dist. Ct. Woodbury Cty. Mar. 20, 2013); Motion to Correct an Illegal Sentence, State v. Yates, No. FECR050208 (Iowa Dist. Ct. Woodbury Cty. Oct. 18, 2017). Yates also filed a petition for writ of certiorari with the United States Supreme Court. See Doc. No. 16-1 at 4. The Supreme Court denied the petition on October 1, 2007. Yates v. Iowa, 552 U.S. 869 (2007). It is not clear from the record whether the petition related to the direct appeal or one of the later motions filed by Yates.

         B. PCR-1

         Yates filed his first PCR application on June 4, 2004. See Application, Yates v. State, No. PCCV129517 (Iowa Dist. Ct. Woodbury Cty. June 4, 2004). On July 2, 2004, Yates filed a second PCR application. See Application, Yates v. State, No. PCCV129697 (Iowa Dist. Ct. Woodbury Cty. July 2, 2004). In the two PCR applications, Yates contended he was entitled to relief because:

(1) the conviction or sentence violated the Constitution or otherwise violated applicable law; (2) that the sentence was in excess of the maximum authorized by law; (3) that evidence of material facts that had not previously been presented required vacation of his sentence or conviction; and (4) that he was unlawfully held in custody.

Doc. No. 16-2 at 7. Attorney Tim Scherle was appointed to represent Yates in these cases. Doc. No. 65 at 62:17-19. Yates testified at the hearing that during the representation he “probably sent [Scherle] at least one letter a week if not two” and “probably called him at least once to twice a week if not more often.” Id. at 63:11-64:8. Scherle described Yates as very detail-oriented, meticulous and involved in his own proceedings. See Id. at 48:5-11.

         1. Dismissal of PCR-1

         On July 28, 2005, due to inactivity in the cases, the Woodbury County Clerk of Court's office filed notices in both cases that they would be dismissed pursuant to Iowa Rule of Civil Procedure 1.944[2] on January 1, 2006, if they were not tried before that date. Doc. No. 61-1 at 15; see also Doc. No. 16-2 at 7. However, on December 27, 2005, the trial court ordered the consolidation of PCCV129517 and PCCV129697[3] and the “try or dismiss” deadline was continued to June 30, 2006.[4] Doc. No. 58-4; see also Doc. No. 16-2 at 7. Scherle received a copy of this order, but Yates did not. See Doc. No. 65 at 42:8-23, 64:14-65:11. Rebecca Morehead, a ...


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