510 F.3d 1127 (9th Cir. 2007), 04-35253, Smith v. Baldwin

Docket Nº:04-35253.
Citation:510 F.3d 1127
Party Name:Roger Paul SMITH, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee.
Case Date:December 26, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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510 F.3d 1127 (9th Cir. 2007)

Roger Paul SMITH, Petitioner-Appellant,

v.

George H. BALDWIN, Respondent-Appellee.

No. 04-35253.

United States Court of Appeals, Ninth Circuit.

Dec. 26, 2007

Argued and Submitted June 18, 2007.

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[Copyrighted Material Omitted]

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

Kathleen Cegla, Assistant Attorney General; Erin C. Lagesen, Assistant Attorney General (argued), Salem, OR, for the respondent-appellee.

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

Before: Alex Kozinski, Chief Judge, and Mary M. Schroeder, Stephen Reinhardt, Andrew J. Kleinfeld, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Richard C. Tallman, Richard R. Clifton, Jay S. Bybee, Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges.

Milan D. Smith, Jr., Circuit Judge, in which Kozinski, Chief Judge, and Kleinfeld, McKeown, Wardlaw, Tallman, Clifton, Bybee and Ikuta, Circuit Judges, join. RAYMOND C. Fisher, Circuit Judge, filed a concurring opinion, in which Schroeder, W. Fletcher, and Paez, Circuit Judges, join.

Stephen Reinhardt, Circuit Judge, filed a dissent, in which Thomas, Circuit Judge, joins.

SIDNEY R. Thomas, Circuit Judge, filed a separate dissent.

MILAN D. SMITH, JR., Circuit Judge:

We took this case en banc to correct a misconstruction of the Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), "actual innocence" "gateway" by a divided panel of this court in Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006), reh'g en banc granted, 482 F.3d 1156 (9th Cir. 2007). The panel erroneously held that

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Petitioner-Appellant Roger Paul Smith could satisfy the "actual innocence" standard to overcome "a procedural default of his claims insofar as they relate to his felony murder conviction," thus permitting him to proceed with his constitutional claims. Smith, 466 F.3d at 807. We disagree, and we affirm the decision of the district court.

While burglarizing the home of Emmett and Elma Konzelman, either Smith or his criminal companion, Jacob Edmonds, bludgeoned eighty-seven-year-old Mr. Konzelman to death with a three-foot long crowbar. After Edmonds told police that Smith killed Konzelman, the prosecution offered Edmonds a plea deal contingent on his passing a polygraph examination. The results of the polygraph test were inconclusive, but the examiner opined that Edmonds had answered the questions truthfully and Edmonds entered the plea deal in exchange for his testimony against Smith. Despite Smith's request, the prosecution did not reveal the results of Edmonds's polygraph.

Believing that Edmonds had passed the polygraph examination, and knowing that Edmonds would testify against him, Smith entered a no contest plea to felony murder and first-degree robbery. Edmonds has now changed his story and claims that Smith did not kill Mr. Konzelman. Edmonds is unwilling to testify on Smith's behalf, however, because the state has informed him that he will be prosecuted for the capital murder of Mr. Konzelman if he insists on claiming that Smith was not the person who wielded the lethal crowbar. Smith asserts that the state's actions constitute prosecutorial misconduct, and he argues that his failure to exhaust his state court remedies should be excused because Smith can show actual innocence, as well as cause and prejudice.

Although the resolution of these issues is not essential to our analysis, in order to more clearly demonstrate Smith's inability to meet his evidentiary burden, we assume without deciding that two of Smith's arguments have merit: (1) the state committed prosecutorial misconduct by threatening to prosecute Edmonds for capital murder if he testified on Smith's behalf; and (2) the proper remedy for the prosecutorial misconduct is to compel the state to grant use immunity to Edmonds in an evidentiary hearing where Edmonds would testify that he, not Smith, killed Emmett Konzelman.1 We do not assume, and we expressly reject, the Smith panel majority's decision to treat Edmonds's affidavits as "credible, for purposes of resolving the question whether Smith's procedural default should bar him from presenting his habeas claims on the merits." Smith, 466 F.3d at 828. Even indulging the two cited assumptions, however, we conclude that Smith has not satisfied the requirements of Schlup's actual innocence exception with respect to his conviction for felony murder. We also hold that neither the actions of Smith's first state post-conviction trial counsel nor the state's withholding of the results of Edmonds's polygraph examination constitute sufficient cause and prejudice to excuse the procedural default resulting from Smith's failure to exhaust his state remedies.

I. Facts and Procedural Background

During the early morning hours of April 4, 1989, after snorting methamphetamine, Smith, Edmonds, and Arlen Bouse2 decided

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to steal enough money or property to enable them to purchase tickets for a rock concert the following night. The group drove around several neighborhoods in Edmonds's truck searching for a good target. Ultimately, they discovered a house with the garage door open belonging to Emmett Konzelman and his wife, seventy-four-year-old Elma.

After parking Edmonds's truck near the Konzelmans' residence, all three men entered the garage. While in the garage, Smith inadvertently caused the door connecting the garage to the house to slam shut. Startled, the group fled from the garage and Bouse was separated from Smith and Edmonds. Bouse took a beer, a hat, and gloves from the garage and returned to the truck to await Edmonds and Smith. Bouse waited at the truck, but Edmonds and Smith did not return for approximately forty-five minutes.

Although accounts of what happened next occasionally conflict, testimony of several witnesses establishes all the factual elements essential to our analysis. Smith and Edmonds returned to the Konzelman residence and burglarized the house. Before entering the house, Smith and Edmonds spent some time in the garage. While there, they found two hats to wear as disguises. One man wore a baseball cap or a skull cap and the other wore a fedora hat. Smith and Edmonds also tied bandannas over their faces while in the garage. Both Smith and Edmonds wore gloves, though it is unclear what kind and how many. Edmonds stated that he wore white latex gloves while Smith wore a pair of black leather gloves. Smith, however, has stated that he wore either one or two brown work gloves. In the garage, Smith and Edmonds also found a three-foot-long crowbar and a rope.

Edmonds provided extensive testimony about what happened in the Konzelmans' residence at Smith's sentencing hearing (Sentencing Hearing) on November 6 and 7, 1989. Smith's attorney cross-examined Edmonds at the Sentencing Hearing.

Q. Who turned the light on?

A. Mr. Smith.

Q. Where were you when he turned that light on?

A. Standing in the doorway.

Q. Both of you were standing there in the door-way?

A. Right.

Q. Who had the crowbar?

A. Mr. Smith.

Q. What did you have in your hand?

A. A rope.

Q. Why did you take the rope into the bedroom?

A. In case they woke up and tried to call the cops or something.

Q. As the light was turned on, what did you see Mr. Smith do regarding the two people in the room, the other two, Mr. and Mrs. Konzelman?

A. I seen him just, ah, tell 'em to wake up.

Q. You heard that?

A. Yeah.

Q. Did you see them appear to wake up?

A. I seen Mrs. Konzelman appear to wake up, yeah.

Q. Did you see Mr. Konzelman?

A. He didn't wake up right away, so Mrs. Konzelman woke him up.

Q. What happened next?

A. He started to get up and Mr. Smith said to lay back down.

Q. Do you remember how he said that?

A. "Lay back down, old man."

Q. Did Mr. Konzelman lay down?

A. No. I don't think he heard him.

Q. What did you see Mr. Smith do then?

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A. I seen him make a threatening gesture with the crowbar first.

Q. And then after he made the gesture what did he do?

A. I don't know. I said, "I'm getting the fuck out of here."

Q. While you were in the--still in the room, Mr. Edmonds, did you see anybody hit with that crowbar?

A. No.

Q. Did you leave the room or did you stay?

A. I left the room.

Q. How far away did you go?

A. Garage.

A. How long were you gone?

A. Couple minutes, waiting for him to follow me.

Q. Did he follow you out?

A. No.

Q. What did you do then?

A. I went back in to get him.

Q. When you came back in the bedroom, what happened that you could see when you came back in the bedroom?

A. I seen Mr. Konzelman laying on the floor.

* * *

Q. Where was Mrs. Konzelman?

A. Laying on the bed.

Q. Did it appear that anything had happened to either one of those people while you were gone?

A. Mrs. Konzelman, I couldn't tell. Mr. Konzelman, there was blood on the bed.

Q. While you were there in the bedroom did you see Mr. Konzelman move?

A. Yeah, he got back up on the bed.

Q. As he was doing that, what happened?

A. Nothing. He just got back up on the bed and him and he [sic] wife laid together.

Q. Did you see anybody hit after that?

A. No.

Q. When Mr. Konzelman crawled back on the bed did he appear to have been injured?

A. Yeah.

Q. Why?

A. I don't know. He just had a lot of blood all over him.

Q. Did there appear to be blood more in one place than any other...

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