by Charlie Hinton
In 2017, Federal District Court Judge Charles Breyer denied the habeas appeal of DeWayne Ewing, an innocent man, based on the timeliness of his appeal rather than on the facts of the case, because of the Antiterrorism and Effective Death Penalty Act (AEDPA), passed in 1996 – the Senate voted 91-8 – and signed by Bill Clinton. Part of the way Congress tried to make the death penalty “more effective” was to limit the ability of prisoners to appeal, especially to have multiple appeals.
But the AEDPA also imposed for the first time a statute of limitations on petitions for a writ of habeas filed by state prisoners: They must now file within one year after the date their direct review comes to an end. Because DeWayne was coerced into a plea deal and the review period ended in 2012, and he didn’t file his habeas until 2016, the judge ruled his appeal “untimely.”
In the last several pages of his decision, however, Judge Breyer acknowledged DeWayne’s claim of innocence and described how he can submit a new habeas under the AEDPA based on innocence, which doesn’t carry the one-year limit.
While the AEDPA tied the hands of the judge, it’s infuriating that legal technicalities overrule facts. As a young brother writes from Pelican Bay: “They don’t say I don’t have a righteous claim. Just that I can’t file it, because Congress wants me to: know my rights, know the law, know how to do an appeal, know the rules of the court, know how to read transcripts etc. right after my trial ended in a certain amount of time, or else no appeal for me.
“Now this angers me, because I believe Congress knows rich people hire attorneys to do the work, but us street people, which is the majority, need to do our federal appeals ourselves. But we have a deadline to learn how to. Now that’s an effective way to legally suppress us.”
While the AEDPA tied the hands of the judge, it’s infuriating that legal technicalities overrule facts.
At this time, DeWayne and his supporters are seeking an attorney who can file his habeas appeal, because WE KNOW DEWAYNE IS INNOCENT. In January 1994, 23-year-old DeWayne and a girlfriend discarded a condom as they left a park in the Oakland hills. A rape took place in the same park a few days later, and three days after the rape, police found the condom under a bush and put it with the rape kit.
Thirteen years later, in June 2007, police pulled DeWayne over for an illegal turn and arrested him for rape on a cold hit DNA match. He’s been imprisoned all but 11 months since. Yes, the condom is his, but there is NO EVIDENCE OF ANY KIND THAT LINKS THE CONDOM TO THE RAPE.
- The victim couple could not identify him in a police lineup.
- His description does not match the police bulletin dispatched after the crime.
- There is none of his DNA, hair, fingerprints etc. in the car where the rape took place.
- There is none of his DNA on the victim’s vaginal swab or matted pubic hair in the rape kit.
- The victim’s DNA is not on the found condom.
- To get an arrest warrant, the DA’s office lied and told the judge the condom was found in the car where the rape took place, instead of under a bush several days later.
- The victim’s story remained consistent from the night of the assault through her grand jury testimony – no condom was used. She was positive, because she had asked the rapists to use condoms and neither did. (DeWayne was charged with his cousin, who also maintains his innocence.) In his closing argument, the DA said that although the victim testified no condom was used, she was mistaken. He got an indictment.
After spending more than four years in Santa Rita County Jail without trial, DeWayne, refusing a plea deal and demanding a jury trial, finally won a court date. After preliminary hearings on the morning of July 11, 2011, Judge Joseph Hurley, a former prosecutor and Alameda County chairman of the Republican Party, ordered the courtroom locked during the lunch break.
DeWayne was locked in the courtroom with only the district attorney, his lawyer and the judge. His parents and his wife were locked out.
DeWayne’s attorney, who had said he would “vigorously defend DeWayne” with an “expert DNA witness prepared to testify,” told DeWayne he would not defend him after all. Judge Hurley threatened DeWayne with three life sentences if he insisted on a trial and lost. Frightened, intimidated and alone, DeWayne accepted a 25 year “deal.”
In his “Statement of Facts: The Story of a Found Condom,” DeWayne writes: “This whole experience was new for me, my family and my wife. I did not realize that justice is not for all – especially me, an innocent man trapped in the California penal system.
“I am not a criminal. Now I truly realize the very shameful and illegal misconduct of both attorney William DuBois and Judge Joseph Hurley against me and my family. I did not take this deal intelligently. I wanted to face my accusers – for them to say to my face that I did this horrible act against them, which they never said I did.
“The very officials of the court that should protect me from injustice violated my every right as an American citizen. This is a complete travesty of what the judicial system was meant to protect against.”
DeWayne writes: “This whole experience was new for me, my family and my wife. I did not realize that justice is not for all – especially me, an innocent man trapped in the California penal system.”
Please support DeWayne. Sign the petition to Alameda County District Attorney O’Malley demanding she reopen the case, at https://campaigns.organizefor.org/petitions/free-dewayne-ewing-an-innocent-man.
Read DeWayne’s “Statement of Facts” on Facebook: DeWayne Ewing, Ione, CA, at https://www.facebook.com/permalink.php?story_fbid=136458866718073&id=100010618800567.
Charlie Hinton is a Bay Area-based activist and writer who wrote and performs in the play “Solitary Man: A Visit to Pelican Bay State Prison” with New York musician Fred Johnson. He is a member of Haiti Action Committee, the Prisoner Hunger Strike Solidarity Committee to End Sleep Deprivation, and he works with DeWayne Ewing’s family to free DeWayne, an innocent man, from prison. He’s the author of the book “Life Wish: Essays, Letters, Songs, Solo Performance,” Haiku written over time. You can reach him at email@example.com.