466 F.3d 805 (9th Cir. 2006), 04-35253, Smith v. Baldwin

Docket Nº:04-35253.
Citation:466 F.3d 805
Party Name:Roger Paul SMITH, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee.
Case Date:October 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 805

466 F.3d 805 (9th Cir. 2006)

Roger Paul SMITH, Petitioner-Appellant,

v.

George H. BALDWIN, Respondent-Appellee.

No. 04-35253.

United States Court of Appeals, Ninth Circuit.

October 24, 2006

Argued and Submitted March 9, 2005—Portland, Oregon.

Page 806

Thomas J. Hester, Office of the Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Hardy Myers, Attorney General for the State of Oregon, Mary H. Williams, Solicitor General (On the Briefs); Kathleen Cegla, Assistant Attorney General, Salem, Oregon (Argued), for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon D.C. No. CV-98-00059-OMP, Owen M. Panner, Senior Judge, Presiding.

Before: Procter Hug, Jr., Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

I.

This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into not testifying on his behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites. Roger Smith is currently serving a life sentence with a 30-year minimum term. The district court dismissed on procedural grounds his petition for a writ of habeas corpus without reaching the merits of his claims. It found that he had not exhausted those claims in state court and that, because state procedural rules barred him from doing so now, the claims were procedurally defaulted. Like the district court, we do not consider the merits of his case. All we decide is that, under an exception to the applicable procedural rules, Smith may pursue his federal constitutional claims in federal court. Both the facts and the law are complex, however, as they tend to be these days in almost all habeas corpus cases.

Smith argues on this appeal that his petition has not been procedurally defaulted and that, if it has, the procedural default should be excused on the basis of his claim of actual innocence. The exception on which he relies is known as the Schlup "actual innocence" exception, named after the case of Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We hold that because prosecutorial misconduct in connection with his federal habeas proceedings seriously interfered with

Page 807

Smith's ability to make the necessary showing under Schlup, and because the resultant harm cannot be effectively remedied by less intrusive means, the exculpatory testimony withheld from the court as a result of the state's actions must be presumed to be true. We deem the exculpatory statements to be truthful, however, only for the purpose of determining whether Smith's contentions are sufficient to excuse any procedural default that may have occurred; we do not consider here what remedy would be appropriate with respect to his subsequent efforts to establish any claim on the merits that might entitle him to relief, including any claim of actual innocence.

In short, we conclude only that, affording the disputed witness statements the benefit of the presumption of truthfulness, Smith satisfies the Schlup "actual innocence" standard for overcoming a procedural default of his claims insofar as they relate to his felony murder conviction, and nothing more. As we explain below, Schlup is satisfied here, and thus Smith is entitled to proceed with his constitutional claims, not simply because the evidence at this point would likely preclude any reasonable juror from determining that he was the actual killer, but because that evidence would more likely than not cause any such juror to conclude that he had established, by a preponderance of the evidence, an affirmative defense to the felony murder charge under Oregon law. Accordingly, we reverse the district court and remand so that Smith may be afforded a hearing on the merits of his constitutional claims.1

II.

On April 3, 1989, two young men, Smith and Jacob Edmonds, burglarized and robbed the home of Emmett and Elma Konzelman. A third man, Marlin Bouse, drove with them to the Konzelmans' home, but decided not to participate further in the criminal activity after initially entering the garage. Although there was no indication that the two who entered the house itself had planned to injure anyone, one of them, when out of the presence of the other, attacked the Konzelmans in their bedroom and bludgeoned Mr. Konzelman to death. Mrs. Konzelman, who survived the assault, told police that only one of the burglars had attacked the couple and that no one else entered the room at that time or saw the killing. There is no dispute that either Smith or Edmonds alone committed the murder. The ultimate question is which one.

There is substantial evidence in the record to suggest that Edmonds murdered Mr. Konzelman and that he committed the killing outside of Smith's presence and without any advance knowledge on Smith's part that he would engage in any violent conduct or that he possessed a dangerous or deadly weapon. The blood on the getaway truck and Mrs. Konzelman's recollection of the killer's attire, for instance, point to Edmonds as the killer.2 however, as

Page 808

part of a deal with the prosecutor, Edmonds named Smith as the murderer in return for the dismissal of his murder charges. The conditions of the plea agreement required Edmonds to pass a polygraph examination showing that all of his allegations were truthful and to give a complete statement memorializing his accusation against Smith. In return, the state agreed to recommend concurrent sentences with a minimum of 43 months on the two robbery counts to which he pled.3

After learning that he would be prosecuted for capital murder and that Edmonds was going to testify against him, Smith, who had continuously asserted his innocence, pled no contest to robbery and felony murder. In return, he received a life sentence with a minimum term of 30 years. Although Smith pled no contest to the lesser charge of felony murder, the trial judge explained that he was enhancing Smith's sentence because he believed that Smith was the one who had committed the killing, even though the evidence was far from clear on this point. After the plea, Smith filed a direct appeal, which the Oregon Court of Appeals and the Oregon Supreme Court denied without opinion.

Smith then filed a petition for post-conviction relief in state court, setting forth claims that (1) his trial counsel was constitutionally ineffective because his lawyer coerced his plea agreement without advising him of or pursuing an affirmative defense to felony murder; (2) his due process rights were denied when Edmonds's plea bargain wrongfully implicated him; and (3) his due process rights were violated because the effect of his medication and his trial counsel's coercion rendered his no contest plea unknowing and involuntary. The state post-conviction judge denied Smith's request to appoint new counsel and ruled against him on the merits.

New counsel was appointed on appeal, but Smith did not appeal the denial of his post-conviction claims and argued only that replacement counsel should have been appointed at his first post-conviction hearing. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. As a result of this appeal, Smith never presented his substantive post-conviction claims to the state supreme court and they remain unexhausted.

In a notarized statement to the district attorney seven years after the incident and two years after the Oregon Supreme Court's denial of review, Edmonds recanted his earlier testimony against Smith, implicitly acknowledging that he had murdered Mr. Konzelman. Edmonds explained that although he "stated in a sworn statement that Roger Smith . . . had in fact bludgeoned Emmit Konzleman [sic] to death," he wanted "for the record [to] retract that statement. Roger Smith did not kill Emmit Konzleman [sic]." He then confessed to committing perjury in his statement against Smith and explained that "the only way for me to set the record straight is to write this confession now."

Based on Edmonds's recantation, Smith again requested post-conviction relief in state court. Smith's second petition asserted that Edmonds's 1996 recantation was new evidence that exculpated him and that his due process rights were violated both when the differences between aggravated murder and felony murder were not

Page 809

explained to him at the time of his plea and when the court failed to provide him with an adequate explanation of the charges against him, given that he was on drugs and of below-average intelligence. The court, however, granted summary judgment for the state, concluding that "post-conviction is not the for[u]m to—won't allow this relief here on newly discovered evidence." Smith appealed but grew frustrated with his attorney and with the delay caused by numerous extensions of time. As a result, he filed a motion for voluntary dismissal, which the court granted. Smith next turned his attention to the federal courts: In 1997, Smith asserted four grounds for relief in a petition for federal habeas corpus: (1) conviction obtained by a guilty plea which was unlawfully induced and made neither voluntarily nor intelligently; (2) denial of effective assistance of counsel during the investigative and trial preparation stages; (3) denial of effective assistance of counsel during the plea negotiation/ entry stage; (4) denial of effective assistance of counsel during hearings before the trial court.

Amidst the federal habeas proceedings, Edmonds again recanted his statements against Smith in a sworn affidavit. This time, Edmonds's...

To continue reading

FREE SIGN UP