Amrine v. Bowersox

• Decision Date: 17 October 2000
• Docket Number: PETITIONER-APPELLANT,No. 96-1892,RESPONDENT-APPELLEE,96-1892
• Citation: 238 F.3d 1023
• Parties: (8th Cir. 2001) JOSEPH AMRINE,, v. MICHAEL BOWERSOX, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER, . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1023

238 F.3d 1023 (8th Cir. 2001)

JOSEPH AMRINE, PETITIONER-APPELLANT, v. MICHAEL BOWERSOX, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER, RESPONDENT-APPELLEE.

No. 96-1892.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: October 17, 2000.

Filed: January 5, 2001.

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Beam, Morris Sheppard Arnold, and Murphy, Circuit Judges.

Murphy, Circuit Judge.

Before the court is Joseph Amrine's petition for writ of habeas corpus under 28 U.S.C. 2254. Amrine was convicted in 1986 for murdering a fellow prisoner, and he was sentenced to death. His conviction and sentence were affirmed by the Missouri Supreme Court, State v. Amrine, 741 S.W.2d 665 (1987) (en banc), as was the denial of post conviction relief, Amrine v. State, 785 S.W.2d 531 (1990). He filed this petition for federal habeas relief in 1990 and an amended petition in 1991. ¹ The federal district court ² denied habeas relief in 1996 on the basis that his claims were either procedurally barred or without merit. Amrine appealed, but before briefing his new counsel moved for a remand to the district court to present new evidence of actual innocence. That motion was granted by this court en banc. Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. 1997) (en banc) (Amrine I). After a hearing, the district court issued an order on October 30, 1998, finding that the new evidence was not reliable and that Amrine therefore could not make out a claim of actual innocence. Unfortunately, the order was not forwarded to this court and not until March 2000 were we able to obtain a copy. We then set an additional briefing schedule and oral argument. We now affirm.

I.

Gary Barber, an inmate in the Missouri state penitentiary in Cole County, Missouri, was stabbed to death in a prison recreation room on October 18, 1985. Amrine was charged with the crime. The state presented evidence at trial that Amrine had killed Barber and which suggested that it happened because Barber had told other inmates that he had had sex with Amrine. Inmate Terry Russell testified that relations between Amrine and Barber were tense because of the rumors and that Amrine had confronted Barber and threatened him about a week before the murder. Russell acknowledged that he had not seen the stabbing, but testified that Amrine later confessed to him that he had killed Barber. Inmates Randy Ferguson and Jerry Poe both testified that they saw Amrine stab Barber. The state also presented evidence that blood was found on the clothing Amrine was wearing at the time of the stabbing, but a state serologist testified that the blood sample was too small to determine definitively the source or age of the stain.

Amrine's theory at trial was that Russell had killed Barber. Amrine called six inmates to testify that he had been playing poker at the other side of the recreation room at the time of the murder. Three of those inmates stated that they had seen Barber chasing an individual immediately after he was attacked, and they identified Russell as that individual. The state called Officer John Noble, who testified that he had seen Barber chase another inmate across the room before he collapsed and died. He stated that although he had initially identified that inmate to a fellow officer as Russell, he was not certain about that later and that Russell and Amrine were similar in size, coloration, and hair style. A correctional officer who had been stationed outside the recreation room testified that he saw Russell leave the room before the stabbing. A third officer stated that he saw Russell after the incident, both inside and outside the room.

The jury convicted Amrine of first degree murder, and the penalty phase of the trial commenced. The state called several prison employees who were familiar with Amrine to testify about him. One of these witnesses was Bill Armontrout, who was warden of the state penitentiary. Armontrout testified that based upon his personal experience with the Department of Corrections, he believed that imposing the death penalty for inmate-on-inmate homicides had an impact upon the prison population and deterred incidents of violence. Armontrout also testified that he had known Amrine since his incarceration and that he was not a peaceable inmate. The state presented other witnesses who testified that Amrine was an aggressive prisoner. Corrections Officer Steven Asher testified that he had seen Amrine chasing another inmate with a knife in 1982. Amrine testified on his own behalf. He admitted that he had had "a bad institutional record" in prison, that he had possessed knives on several occasions while in prison, and that he had once attempted to extort money from a fellow prisoner. Amrine testified that he did not hold any "hard feelings towards the jury" for convicting him and that he had not killed Barber. Amrine's counsel did not call any other mitigating witnesses.

After the jury returned a death verdict, the court sentenced him to death and judgment was entered. Amrine's direct appeal was unsuccessful, and the Missouri Supreme Court affirmed his conviction and sentence. Amrine then filed for post conviction relief, and a hearing was held. Both Ferguson and Russell testified at that hearing and recanted their trial testimony in which they had identified Amrine as the murderer. They claimed that they had been pressured by state investigators into giving false testimony in exchange for receiving protective custody. The state countered with the testimony of George Brooks, an investigator with the state prison system, and Richard Lee, an investigator with the county prosecutor's office, who denied pressuring Ferguson and Russell to give false testimony. The state court found that Russell was not a credible witness and that his recanted testimony was "designed solely to place him in good stead with Amrine." The court also found that Ferguson was not credible and that he had recanted his trial testimony in order to help a fellow inmate. The court denied post conviction relief, and the Missouri Supreme Court affirmed.

Amrine then filed his habeas petition in federal court, raising numerous claims of constitutional error. The federal district court considered the merits of claims which had been presented in state court and concluded that they did not entitle Amrine to relief. The remaining claims had not been "properly presented" to the state courts and were therefore procedurally barred. The court concluded that Amrine had failed to show either cause and prejudice to excuse his default or sufficient evidence of actual innocence to permit review of the defaulted claims. Although Ferguson and Russell had recanted their trial testimony, the court noted that "the testimony of Jerry Poe against petitioner remains unchallenged." Amrine v. Bowersox, No. 90-0940, slip op. at 15 (W.D.Mo. Feb. 26, 1996). The court concluded that despite the testimony by Ferguson and Russell at the state post conviction hearing that they had falsely implicated Amrine, "it cannot be said that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt in light of the continued existence of witness Poe's testimony." Id. at 16.

Amrine appealed the district court's denial of his habeas petition to this court. Before briefs were filed, Amrine's successor counsel located new evidence to support his claim that there was sufficient evidence of actual innocence to permit review of his procedurally barred claims. The major piece of new evidence was an affidavit from Jerry Poe disavowing his testimony at trial. Counsel had been unable to locate Poe while Amrine's habeas petition was originally pending in district court, but he was found when he was returned to the custody of Missouri authorities. Poe had been one of the two eyewitnesses who testified at trial that they saw Amrine kill Barber. In his new affidavit Poe claimed that he had not seen Amrine stab Barber and that he had falsely implicated Amrine under pressure from state officials. In light of this new evidence, Amrine asked for a remand for further consideration of his actual innocence claim.

We concluded that Amrine was entitled to a limited remand under Schlup v. Delo, 513 U.S. 298 (1995), because Poe's affidavit was new evidence which, if believed, would "directly contradict[] the key evidence against him at trial." Amrine I, 128 F.3d at 1228. Schlup provides that a habeas petitioner may obtain review of otherwise barred claims if he produces reliable new evidence not available at trial establishing that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. at 1226-27. The district court was to conduct an evidentiary hearing to determine whether Amrine's evidence was "new and reliable." Id. at 1230. We pointed out that "evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence." Id. We recognized that the court might be required to make "credibility assessments" to determine reliability. Id. at 1228. If it were to find the evidence both new and reliable, the court was then to determine whether the evidence met the Schlup standard enabling the barred constitutional claims to be considered. Id. at 1230.

On remand, the district court held an evidentiary hearing at which both sides presented evidence. Amrine called former inmates Russell and Kevin Dean, and former prison correctional officer Noble, and he presented videotaped depositions of Poe and Ferguson. The state presented the testimony of Thomas Brown, the prosecuting attorney at trial, Kevin Booker, an inmate who changed his story to say that he had seen Amrine kill Barber, and investigators George Brooks, Richard Lee, and Joe Dresselhaus.

The court considered...