Cornell v. Nix
| Decision Date | 14 September 1992 |
| Docket Number | No. 90-1195,90-1195 |
| Citation | 976 F.2d 376 |
| Parties | Robert Allan CORNELL, Appellant, v. Crispus NIX, Warden, ISP, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James Cleary, Phoenix, Ariz., argued, for appellant.
Thomas McGrane, Des Moines, Iowa, argued (Thomas J. Miller, on the brief), for appellee.
Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, and HANSEN, Circuit Judges, En Banc.
Robert Allan Cornell (Cornell), an Iowa prisoner, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. We conclude that Cornell is not entitled to habeas relief.
Cornell was convicted after a jury trial of the 1976 first degree murder of Kenneth Crow (Crow). See Iowa Code §§ 690.1, 690.2 (1975). He was sentenced to a term of life imprisonment without parole. See Iowa Code § 690.2 (1975).
Cornell's thirteen-year-old half brother, Glen Albert Oliver (Albert), was the primary witness against Cornell. Albert testified that he, Cornell, and Crow returned to Des Moines, Iowa, from a trip to San Antonio, Texas, on August 29-30, 1976. According to Albert, they stopped at a wooded area along Interstate 35 in southern Iowa on the morning of August 30th. Albert testified that Cornell and Crow left the vehicle for the stated purpose of shooting a cow. Cornell took a .38 caliber pistol with him. Albert then heard a shot, and Cornell returned alone. Albert further testified that "I asked [Cornell] if he did what I think [sic] he did and he said, 'Yes, does it bother you?' " Transcript of trial (trial tr.), vol. I, at 39. Albert did not testify that he actually saw Cornell shoot Crow. Albert informed the authorities of these events four days later and led the authorities to Crow's body. Crow had been shot once in the back of his head. In his defense, Cornell testified that Crow had left the car alive after an argument with Cornell and had stolen Cornell's gun. The primary defense strategy was to impeach Albert's testimony with his prior inconsistent statements and with inconsistencies between his testimony and the physical evidence. The defense also theorized that Sheldon Bryce Oliver (Bryce or Bryce Oliver), Albert's brother, had killed Crow and had dumped the body along the interstate. The defense also emphasized that there was no physical evidence tying Cornell to the murder scene. Eric Lynn Cross (Cross) testified that shortly after the trip to Texas, Cornell told him that "we didn't have to worry about Kenny, because that Kenny had tried to shoot him and he [Cornell] broke his neck." Trial tr., vol. II, at 83. Bryce Oliver testified that Cornell made a similar statement to him.
Cornell's conviction and sentence were affirmed on direct appeal. See State v. Cornell, 266 N.W.2d 15 (Iowa), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). Cornell's first federal habeas petition was denied. Cornell v. Iowa, 628 F.2d 1044 (8th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 944, 67 L.Ed.2d 112 (1981). In that petition, Cornell raised, inter alia, the question of whether the trial judge's inquiry into the numerical standing of the jury after several hours of deliberation and the giving of an Allen 1 charge constituted error. The jury had deadlocked at 7-5 but eventually reached a verdict after the Allen charge and six more hours of deliberation. Although expressing concern regarding the procedures followed by the trial judge, the majority of the panel found no violation of Cornell's constitutional rights. Cornell, 628 F.2d at 1048.
In 1981 Cornell filed an application for postconviction relief under Iowa Code Chapter 663A. He first asserted that several items of exculpatory evidence had been suppressed by the prosecution. He also presented newly discovered evidence suggesting that Bryce killed Crow. Finally, he claimed ineffective assistance of trial counsel. See Cornell v. State, No. 3453 (Iowa Dist.Ct. for Clarke County Dec. 15, 1986). The postconviction trial court denied Cornell's application in a lengthy and thorough opinion. The Court of Appeals of Iowa found that the prosecutor's suppression of exculpatory evidence denied Cornell a fair trial and then reversed and remanded for a new trial in a 3-2 decision. See Cornell v. State, No. 87-69 (Iowa Ct.App. Apr. 20, 1988). The exculpatory evidence upon which the court of appeals based its decision included: (1) a statement from Jody Seidenkranz (Seidenkranz) to Special Agent Robert Pontious of the Iowa Bureau of Criminal Investigation on October 6, 1976, that Cornell had told her when he returned from Texas that Crow had left the car and stolen Cornell's gun and that Albert had agreed with Cornell's statement; and (2) a statement from Bryce Oliver to Special Agent Pontious on September 29, 1976, that four days before Crow left for Texas they had had a fight and Bryce had taken out a razor scraper and threatened Crow. The Supreme Court of Iowa, in a unanimous decision, reversed the court of appeals, finding that the suppressed evidence was not material because a reasonable probability did not exist that the disclosure of the evidence would have changed the result of the trial. See Cornell v. State, 430 N.W.2d 384, 386 (Iowa 1988).
At the state postconviction hearing held in October of 1985, Cornell's counsel offered two signed but unsworn statements made by Cross in October of 1977. In those statements Cross recanted his trial testimony and implicated Bryce Oliver in Crow's death. Cross was not called to testify at the postconviction hearing because he was incarcerated in Missouri at the time. Cross's hearsay statements were admitted by the court, not as proof of the truth of the assertions therein, but only as proof that the statements were made and transmitted to the authorities. Special Agent Robert Pontious testified that he had investigated the statements made by Cross and that during an interview with Cross on November 30, 1977, at the Iowa Men's Reformatory, Cross had informed Pontious that Cornell had intimidated him into making the recantation statements and that the statements were not true. Following the interview with Cross, Special Agent Pontious concluded that further investigation was not warranted. Cornell did not explicitly argue in his state postconviction action that Cross's 1977 recantation statements constituted newly discovered evidence that warranted a new trial.
Cornell filed the pending habeas corpus petition on November 9, 1988, and raised the suppression of the allegedly exculpatory evidence but did not raise any claim based on Cross's 1977 recantation. On February 6, 1989, Cornell amended his petition and alleged that additional exculpatory evidence, including Cross's 1977 recantation, had been suppressed by the prosecution. On February 28, 1989, Cornell's counsel obtained an affidavit from Cross. In the 1989 affidavit, Cross recants his trial testimony and asserts that he never heard Cornell say anything about harming Crow. Cross does state that he did not hear everything that Cornell said to Bryce. Cross also denied being visited by Pontious at the Reformatory in 1977. Cornell moved to supplement the record with Cross's 1989 recantation affidavit. The state resisted on the basis that there was no documentation of the efforts made to offer this evidence in the state postconviction proceedings. The district court denied Cornell's request to supplement the record with Cross's affidavit.
On December 17, 1990, a panel of this court remanded this case to the district court for an evidentiary hearing on the issue of whether Cross's recantation of his trial testimony was newly discovered evidence warranting a new trial. See Cornell v. Nix, 921 F.2d 769, 771 (8th Cir.1990). On August 20, 1991, following an evidentiary hearing, 2 the district court certified its findings of fact and conclusions of law. The district court concluded:
It is also reasonable to believe that had the jury in petitioner's trial, which deadlocked 7-5 after fifteen hours of actual deliberation and reached a verdict of guilty only after receiving an "Allen charge" from the judge and deliberating nearly six more hours, would probably have found petitioner not guilty if the type of evidence presented to me at the remand hearing and the suppressed exculpatory evidence (Jody Seidenkranz's October 6, 1976, statement and Sheldon Bryce Oliver's September 29, 1976, statement) had been presented to that jury. I believe that it is reasonably probable that if there is a retrial and all of this evidence is presented to the jury, the petitioner will be found not guilty.
District court's certified findings and conclusions, filed August 20, 1991, at 6. The district court declined to address the state's procedural default argument on the grounds that that issue was outside of the scope of the limited remand.
Following the district court's certification of its findings of fact and conclusions of law, the panel concluded that Cornell had demonstrated cause and prejudice for his procedural default in failing to raise earlier the issue of Cross's recantation and remanded with instructions to grant the writ subject to a new trial. See Cornell v. Nix, 953 F.2d 1103 (8th Cir.1992). We vacated the panel's decision and granted rehearing en banc. We now conclude that Cornell has not demonstrated cause for his procedural default with respect to his claim based on Cross's recantation. We also address Cornell's claim that certain exculpatory evidence was suppressed by the prosecution. We conclude that the allegedly suppressed exculpatory evidence was not material.
The state argues that Cornell's claim based on Cross's more recent recantation is procedurally barred by Cornell's failure to raise this claim in a timely fashion in the state courts.
A claim not raised in the ...
To continue reading
Request your trial