Parnell v. White

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 16, 2024
• Docket: 23-5103
• Status: Unpublished

Opinion

Appellate Case: 23-5103 Document: 37-1 Date Filed: 09/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ASHLEY PARNELL,

Petitioner - Appellant,

v. No. 23-5103 (D.C. No. 4:22-CV-00232-CVE-SH) TAMIKA WHITE, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________

Ashley Parnell filed in the United States District Court for the Northern

District of Oklahoma an application for relief under 28 U.S.C. § 2254, challenging

her 2009 conviction in Oklahoma state court of first-degree murder of her

boyfriend’s 23-month-old son, S.R. She claimed that the state court lacked

jurisdiction under McGirt v. Oklahoma, 591 U.S. 894 (2020). The district court

dismissed the application as untimely and denied a certificate of appealability (COA).

Ms. Parnell now seeks a COA from this court so that she can appeal the dismissal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5103 Document: 37-1 Date Filed: 09/16/2024 Page: 2

See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under

§ 2254). We deny a COA and dismiss the appeal.

A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. If the application was denied on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but she must also show “that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

The district court concluded that Ms. Parnell did not timely file her § 2254

application within the one-year statute of limitations of the Antiterrorism and

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Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d).1 Ms. Parnell does

not argue that she filed her application within the limitations period. Instead she

argues that her untimeliness should be excused because (1) her jurisdictional

challenge may be raised at any time notwithstanding the statute of limitations, and (2)

new evidence demonstrates her actual innocence of the crime of which she was

convicted. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[A] credible

showing of actual innocence may allow a prisoner to pursue his constitutional claims

. . . on the merits notwithstanding the existence of a procedural bar to relief.”). As

Ms. Parnell’s appellate brief recognizes, her first argument is foreclosed by our

decision in Pacheco v. El Habti, 62 F.4th 1233, 1245 (10th Cir. 2023) (“When

Congress enacted the limitations period in AEDPA, it discerned no reason to provide

a blanket exception for jurisdictional claims.”); she raises it only to preserve for

further review before the en banc court or the Supreme Court the argument that

Pacheco was wrongly decided. We therefore need address only her actual-innocence

claim.

Ms. Parnell argues that the untimeliness of her application is excused by a new

expert report showing her actual innocence. “[A]ctual innocence, if proved, serves as

a gateway through which a petitioner may pass [despite] expiration of the statute of

limitations.” Mcquiggin, 569 U.S. at 386. To show actual innocence, an applicant

1 The district court also ruled that Ms. Parnell did not exhaust her available state remedies, as required by 28 U.S.C. § 2254(b)(1). Because we affirm on the statute-of-limitations ground, we do not address this issue. Page 3 Appellate Case: 23-5103 Document: 37-1 Date Filed: 09/16/2024 Page: 4

must present “new reliable evidence . . . that was not presented at trial” and show that

“it is more likely than not that no reasonable juror would have convicted [her] in the

light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). The court

must make a “probabilistic determination about what reasonable, properly instructed

jurors would do.” Id. at 329. The applicant’s case must be “truly extraordinary” to

meet this threshold. Id. at 327 (internal quotation marks omitted).

Reviewing the district court’s findings de novo, see Fontenot v. Crow, 4 F.4th

982, 1034 (10th Cir. 2021), we agree with its determination that the new expert

report does not establish that it is more likely than not that no reasonable juror would

convict Ms. Parnell. The central issue is whether the new report by Dr. Roland Auer

so undermines the testimony of expert medical witnesses at trial that no juror could

now convict Ms. Parnell.

We recount the relevant evidence from trial2 and Dr. Auer’s report: Ms.

Parnell and S.R.’s father, R.R., began living together by January 2008. R.R. testified

that on March 27, 2008, he got out of bed around 5:30 a.m. and heard S.R. making

noise. When he went into S.R.’s room, S.R. “looked up” at him, “was wide-eyed,”

was able to focus on him, and had no apparent injuries. R., Vol. I at 1198 (internal

quotation marks omitted). When R.R. returned to bed, he heard S.R. crying, and Ms.

Parnell told him that she would attend to S.R. At some point he noticed that S.R. had

stopped crying. He then heard Ms. Parnell scream, got out of bed, and saw Ms.

2 Because Ms. Parnell does not challenge the district court’s summary of the trial testimony, we rely on that summary. Page 4 Appellate Case: 23-5103 Document: 37-1 Date Filed: 09/16/2024 Page: 5

Parnell carrying S.R., who was blue and limp and unresponsive. S.R. was taken to a

hospital and treated for a skull fracture. He died the next day.

Evidence of other unexplained or purportedly accidental injuries suffered by

S.R. while in the care of Ms. Parnell was presented at trial. There was also evidence

that R.R. was abusive toward S.R., although only one witness (Ms. Parnell’s sister)

testified to physical abuse, which she had not reported to anyone when it allegedly

occurred.

Three experts testified at trial regarding the cause of death and whether S.R.

would have been expected to exhibit symptoms immediately after suffering the

injury. Dr. Andrew Sibley testified that the cause of death was blunt head trauma and

that, given the severity of the injury, he “would expect loss of consciousness to occur

immediately or within a very short period of time.” Id. at 1209 (internal quotation

marks omitted). Dr. Sarah Passmore testified that S.R. had unusual injuries other than

the skull fracture and opined that the cause of the skull fracture was child abuse. She

also testified that S.R. would start to show symptoms immediately after suffering the

skull fracture and that even though he might not have immediately lost

consciousness, he would not have been “able to have a coherent interaction” with

anyone. Id. at 1211 (internal quotation marks omitted). Ms. Parnell’s expert witness,

Dr. Joye Carter, testified that incapacitation could take about an hour from the time

of the injury and “he may have been able to move for several minutes” after the

injury. R., Vol. I at 1212. She concluded that it was “difficult to determine at whose

hands the injury occurred.” Id. (brackets and internal quotation marks omitted).

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The new evidence relied on by Ms. Parnell is an expert report by Dr. Auer,

which says that (1) S.R.’s skull fracture could have been caused by an accidental fall,

(2) toddlers frequently fall and S.R. had pneumonia which made it more likely that he

would fall, and (3) S.R.’s skull fracture would be expected to be asymptomatic and

painless and could have occurred as many as seven days before he exhibited

symptoms. Ms. Parnell argues that the report suggests that the fracture could have

been caused by an accidental fall or abuse by someone else that occurred as many as

seven days before S.R. went limp and therefore undermines the government’s theory

that she must have inflicted the skull fracture because she was the last person to

interact with S.R. before he went limp. She specifically contends that R.R. could

have caused the injury because he was alone with S.R. shortly before she was and

trial witnesses testified that he was prone to abusive behavior toward S.R.

We agree with the district court that it is not more likely than not that no

reasonable juror would convict Ms. Parnell after hearing Dr. Auer’s opinion. The

report is contradicted by two experts at trial who opined that the fracture was the

result of abuse and that S.R. would be expected to exhibit symptoms and lose

consciousness shortly after the injury. It is also contradicted by Ms. Parnell’s own

expert at trial, who said that incapacitation could take about an hour from the time of

the injury—a significantly shorter period than seven days. Conflicting evidence, even

conflicts between experts, is for a jury to resolve; and we cannot say that a

reasonable jury would credit only one of the witnesses. See Blackmon v. Williams,

823 F.3d 1088, 1102 (7th Cir. 2016) (“This sort of balance between inculpatory and

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exculpatory witnesses is not enough to meet the demanding Schlup standard for

actual innocence.”); Moore-El v. Luebbers, 446 F.3d 890, 903 (8th Cir. 2006) (“[t]he

existence of such a ‘swearing match’ would not establish that no reasonable juror

could have credited the testimony of the prosecution witnesses”); Bosley v. Cain, 409

F.3d 657, 665 (5th Cir. 2005) (per curiam) (actual-innocence standard not met when

the applicant “failed to establish that it is more likely than not that no reasonable

juror would choose to believe [the state’s witness]’s account over those accounts

offered by [the petitioner’s witnesses]”). But cf. Blackmon, 823 F.3d at 1109–1112

(Posner, J., dissenting in part) (affidavits from witnesses who came forward years

after the trial that said the applicant was not one of the shooters met the Schlup

standard because the new witnesses identified the shooters as individuals they

recognized from the neighborhood whereas the state’s eyewitnesses only identified

the applicant from a photo array, which is a less reliable means of identification).

We DENY a COA and DISMISS the appeal.

Entered for the Court

Harris L Hartz Circuit Judge

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