The Valdez Case: Critique of Letter by Richard Dangler
by
Jesse McGowan, September 2002
After experiencing ineffective assistance of council during the original trial,
the family of Tito David Valdez Junior and Senior hired criminal appeals attorney,
Richard Dangler. After being paid $20,000 to represent Tito David Valdez Senior
and Junior in state court, Dangler was unsuccessful and gave both men a discount
for $12,500 instead of another $20,000 to represent them in federal court (as
stated in Dangler's July 23, 1999 letter). Another $600 was also charged because
Dangler lost the original transcripts. Richard Dangler filed the federal petitions
280 days late. On April 10, 2001, the United States Central District Court of
California ruled the petitions untimely under 28 U.S. C 2244 (d) (1) as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 "AEDPA."
In response to persistent inquiries by Tito Valdez Sr. and his family concerning
the status of his case, Mr. Dangler responded with the attached letter.
Mr. Dangler's letter is deceptive and purposefully misleading. In paragraph one, Dangler makes the claim:
We do not think
that your case was sent out late at all, but that this was a convenient way
for the court to rule, without addressing the obvious merits of your factual
innocence.
Immediately, Mr. Dangler attempts to blame the court instead of himself for
not allowing the case to be heard on its merits. Confronted with habeas corpus
petitions, the federal court's job is to rule on whether or not any constitutional
violations occurred in the original trial, not consider a claim of factual innocence.
The court was not looking for a "convenient" way to avoid the case;
rather it was simply following statute of limitations law as a consequence of
Mr. Danglers' filing of the petitions 280 days late. As Dangler points out later
in his letter, a claim of factual innocence is a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim heard
on its merits. This infinitely more difficult path towards a successful appeal
is no fault of the court, but rather it highlights an extremely serious error
made by Richard Dangler.
By filing the petitions 280 days late, Dangler not only failed to do what he was paid to do, he effectively killed the appeals process for two individuals who have already served nine years of their life sentences. Both Valdez Jr. and Sr. had strong claims of numerous federal constitutional violations occurring during their trial. Richard Dangler's negligence in the matter prevented such claims to be heard in federal court. For this reason and the fact that the Valdez family had done everything in their power to get the habeas petitions filed on time, Richard Dangler should be sued for malpractice with the remedy being the immediate lifting of the federal statute of limitations.
Mr. Dangler makes the statement, "we do not think that your case was sent out late at all." However, the bulk of the letter does not attempt to support this claim. Instead, Dangler-using ample case law and legal jargon-argues that a good claim of factual innocence can override any federal statute of limitation, a completely separate issue.
Dangler ends his letter by stating, "Thus, we think it is clear that you are not time-barred by any statutes and we are going to continue to take your case to a higher court." This statement is extremely misleading because it avoids the blaring fact that the court ruled the petitions are time-barred, regardless of what Dangler's firm thinks. When he informs Tito about taking the case to a higher court, he neglects to clarify that the purpose of the this further action is just to get the case back into federal court, an action wholly unnecessary had he not filed the petitions 280 days late.
In conclusion, Dangler's letter is an attempt at blaming a law-abiding court for his own negligence. Furthermore, his combining of two separate issues-the issue of filing the petitions late with the issue of overcoming the statute of limitation by proving factual innocence-appears purposefully deceptive. His overly optimistic discussion about case law concerning overcoming the statute of limitations is completely irrelevant to the his opening claim that, "we do not think that your case was sent out late at all." Richard Dangler is an experienced criminal defense attorney who knows the law much too well to so completely misrepresent it here.
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Original Letter By Richard Dangler September 20, 2001 Mr. Tito David Valdez Sr., J-51735 I-214-L P.O. Box 2000 Vacaville, CA 95696-2000 Dear Tito:
In regards to your letter, we do not think that your case was sent out late at all, but that this was a convenient way for the court to rule, without addressing the obvious merits of your factual innocence.
A substantial amount of case law has ruled that the statute of limitation doesn't apply to a case such as yours. Substantial case law holds that when a case involves a person having a good claim to factual innocence, the case is removed from the federal statute of limitation.
The case is as follows:
Although the Supreme Court has yet to address whether actual innocence is available to overcome a statute of limitations bar, it has identified two circumstances in which a habeas petitioner might invoke the exception, thereby allowing a reviewing federal court to address otherwise procedurally barred claims. McLaughlin v. Moore, 152 F. Supp.2d 123, 129 (2001). The first situation in which a claim of actual innocence might arise occurs when a petitioner acknowledges that his trial was fair and free of constitutional defects, but because he claims to be actually innocent of the crime of conviction, says the punishment imposed on him violates the Eighth Amendment. Id. This second occurs when a petitioner claims that his criminal trial was tainted in some manner that violates the Constitution Id.
The Eighth Circuit Court of Appeals has repeatedly recognized that "actual innocence" can, as least theoretically, overcome other procedural defaults, allowing review in habeas actions. Neuendorf v. Graves, 110 F. Supp.2d 1144, 1155, citing, Holt v. Bowersox, 191 F.3d 970 (8th Cir. 1999). The reasonable conclusion is that "actual innocence can overcome the procedural default of timeliness requirements, even as timeliness is now codified under Antiterrorism and Effective Death Penalty Act in 28 U.S.C 2244 (d)(1). Id. At 1155.
A claim of actual innocence is not itself a constitutional clam, but instead a gateway though which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on its merits. Id at 1157-1158, citing Mansfield v. Dormire, 202 F. 3d 1018, 1024 (8th Cir. 2000(citing Herrera v. Collins), 506 U.S. 390, 404, 113 S. Ct. 853, 122 L. Ed.d 203 (1993); Holt v. Bowersox, 191 F.3d 970 (8th Cir. 1999); Johnson v. Norris, 170 F.3d 970, 974 (8th Cir. 1999); Johnson v. Norris, 170 F.3d 816, 817 (8th Cir.1999). Claims of actual innocence are based on factual innocence and not merely legal sufficiency. Id., citing United States v. Lurie, 207 F.3d 1075, 1077. The Eighth Circuit Court of Appeals recently explained that the claim of actual innocence requires the petitioner to show "new reasonable evidence not presented at trial establishing that it is more likely than not that no reasonable juror would have convicted petitioner in the light of new evidence." Id. Quoting Lee. Kemna, 213 F.3d 1037, 1039 (8th Cir.2000) (per curium) (quoting Wyldes v. Hundley, 69 F.3d 247, 253-254 (8th Cir.1995), cert. Denied 517 U.S. 1172, 116 S. Ct. 1578, 134 L.Ed.2d 676 (1996; Roberts v. Bowersox, 170 F.3d 815, (8th Cir.1999); Johnson, 170 F.3d at 817-18; Malone v. Vasquez, 138 F. 3d 711, 719 (8th Cir.), cert. Denied, 525 U.S. 953, 119 S.Ct. 384, 142 L.Ed.317 (1998)
An actual innocence inquiry is necessarily fact intensive and the district court may be the most appropriate forum to consider whether the new evidence is reliable and what reasonable triers of fact are likely to do. Id at 1160, citing Schlup v. Delo 513 U.S. 298, 330, 115 S.Ct. 851, 868, 130, L.Ed 2d 808 (1995).
Thus, we think it is clear that you are not time-barred by any statues and we are going to continue to take your case to a higher court.
In the mean time, I hope that this letter finds you will!
Best Wishes,
Richard Dangler Attorney at Law