Lewis v. Erickson, 91-1314

• Citation: 946 F.2d 1361
• Decision Date: 15 October 1991
• Docket Number: No. 91-1314,91-1314
• Parties: George Esau LEWIS, Appellant, v. Robert A. ERICKSON, Warden, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1361

946 F.2d 1361

George Esau LEWIS, Appellant, v. Robert A. ERICKSON, Warden, Appellee.

No. 91-1314.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1991.

Decided Oct. 15, 1991.

Douglas Peine, St. Paul, Minn., for appellant.

Lee W. Barry III, Minneapolis, Minn., for appellee.

Before McMILLIAN, FAGG and WOLLMAN, Circuit Judges.

FAGG, Circuit Judge.

George Esau Lewis appeals the district court's order denying his 28 U.S.C. § 2254 habeas petition. We reverse and remand with directions to grant the writ unless the state begins new trial proceedings within a reasonable period of time fixed by the district court.

At about 7:00 on a summer night in August 1988, a woman was walking home from a bar in Minneapolis when two men pulled her inside their car and sexually assaulted her. After three or four hours, the victim escaped. She went home and called the police. When asked to describe her assailants, the victim could only recall they were black males.

Eight days after the assault, the victim was in the same bar. She saw two men she believed were her assailants. The victim informed an off-duty police officer in the bar that the two men had raped her. Other officers arrived and arrested the two men: Lewis and his girlfriend's brother, Carter.

Lewis was tried first. The state's case against Lewis consisted of testimony by the victim, a forensic expert, and police officers. The victim testified there was no doubt in her mind that Lewis and Carter were the men who had raped her. She continually referred to both men together and did not distinguish between them. The forensic expert testified blood and semen tests showed Lewis and Carter could have been the men who had raped the victim. The expert conceded, however, his test results were inconclusive. The police officers' testimony depended entirely on the victim's description of events. Lewis testified in his own defense. He admitted he was with Carter between 8:00 and 9:00 on the night of the assault, but denied involvement in the crime. Thus, the outcome of the trial depended almost entirely on whether the jury believed the victim's or Lewis's testimony. The jury convicted Lewis of first-degree criminal sexual conduct, and the judge sentenced him to 152 months imprisonment.

Carter's case proceeded to trial. Before the attorneys began their opening statements, the victim broke down emotionally in the presence of Carter and the jury. The victim told the judge she could not identify Carter. As a result, the judge dismissed Carter's case. Lewis's counsel then moved for a new trial based on newly discovered evidence--the victim's recantation of Carter's identification. The court denied the motion. The Minnesota Court of Appeals affirmed Lewis's conviction, but reduced his sentence to 130 months. After the Minnesota Supreme Court denied Lewis's petition for further review, Lewis filed this habeas action in federal district court. Relying on the Minnesota Court of Appeals decision, a magistrate judge issued a report recommending denial of Lewis's petition. The district court adopted the magistrate judge's recommendation and denied Lewis's petition.

Newly discovered evidence relevant to the constitutionality of a state prisoner's detention is a ground for federal habeas relief. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); Cornell v. Nix, 921 F.2d 769, 771 (8th Cir.1990). We grant habeas relief based on newly discovered evidence if the evidence " 'would probably produce an acquittal on retrial.' " Cornell, 921 F.2d at 771 (quoted case omitted); see also Sanders v. Sullivan, 863 F.2d 218, 224-25 (2d Cir.1988) (state's failure to cure...