United States District Court, D. Alaska
EDWARD Y. GARDNER, Petitioner,
FRANK LUNA, Respondent.
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY
RALPH R. BEISTLINE, District Judge.
Before the Court, at Docket 120, is Plaintiff Edward Y. Gardner with an Application for Certificate of Appealability pursuant to 28 U.S.C. 2253(c), which is opposed by Defendant at Docket 120. Plaintiff objects to the Court's dismissal of his habeas claim at Docket 117.
Plaintiff continues to assert that he should be able to proceed with an appeal alleging ineffectiveness of his prior trial counsel despite having specifically abandoned any allegations of ineffectiveness of trial counsel (Docket 122-1) and despite having failed to establish that the outcome of his murder trial would have been any different had trial counsel done everything Plaintiff now claims that she should have done. Plaintiff contends that the Court erred in dismissing his habeas petition. The Court, however, disagrees and, in order to more specifically respond to the issues raised by Plaintiff in his request for certificate of appealabity, and setting aside the abandonment issue, will set forth its reasoning below and address some of the relevant case law.
It is the Court's view that Plaintiff has failed to make a substantial showing of the denial of a constitutional right and that reasonable jurists, many of whom have already considered these arguments, would not disagree.
I. FACTS AND PRIOR PROCEEDINGS
Gardner was convicted of First Degree Murder for killing his wife following a trial by jury in Palmer Superior Court before the Honorable Beverly W. Cutler. The Alaska Court of Appeals affirmed the conviction.
Gardner's wife, T.S., was found murdered near the Willow Creek campground off the Parks Highway. The State argued that Gardner had a motive to kill his wife based on a real property dispute. Mr. Gardner visited his wife on July 5, 1995, at the house. After they talked, T.S. agreed to give Gardner a ride to a cabin where he was staying. Gardner asked T.S. to give him a ride the next day to Nugen's Ranch, a substance abuse treatment center, located off the Palmer-Wasilla Highway.
The next day her body was found. Her car was parked in the same spot where she had dropped Gardner off the night before. She had been stabbed multiple times. Trace evidence of sperm was found in T.S.'s vagina and on her thigh. The state's expert testified that Gardner was a "possible contributor" of the sperm, based on DNA testing.
Gardner was arrested outside of a remote cabin near Sucker Lake in Alaska. Police seized evidence from the premises known as the Edward (Bucky) Gardner cabin located on Sucker Lake pursuant to Search Warrant 3PA-95-1295SW. The Troopers seized weapons, explosives, a journal that Gardner had written in, and several other items found in the cabin. These items were introduced into evidence at trial against Gardner.
Gardner's trial attorney was Donna J. McCready. At trial McCready called defendant's own expert witness who testified that it was unlikely that the sperm was deposited at or near the time of T.S.'s death. The defense argued that it was more likely a result of sexual relations between T.S. and Gardner several days before her death.
At trial, Gardner's attorney argued that another man, David Brasseur, was the one who killed T.S. and argued that, as an unrequited lover, he had a motive to kill her.
McCready employed a defense strategy evidenced in her opening statement admitting that Gardner was the source of the semen found on the victim's body. Implied in such a strategy and the relationship between Gardner and his ex-wife was an argument that because of their intimate relationship Gardner would have had less or a reason to kill her than Brasseur.
Gardner was convicted after a jury trial and subsequently appealed his conviction to the Alaska Court of Appeals. Gardner lost this appeal. He timely petitioned for a hearing before the Alaska Supreme Court. The petition for hearing was denied. He then filed a timely application for post-conviction relief under Alaska Rule of Criminal Procedure 35.1. The application was dismissed on the pleadings without an evidentiary hearing. Dismissal of Gardner's State application for post-conviction relief was timely appealed to the Alaska Court of Appeals.
Gardner's court-appointed appellate attorney field a supplemental memorandum in support of application for post-conviction relief pursing defendant's ineffective assistance of counsel claim and raising three additional claims. ...