Dansby v. Norris

• Decision Date: 21 June 2012
• Docket Number: No. 10–1990.,10–1990.
• Citation: 682 F.3d 711
• Parties: Ray DANSBY, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

682 F.3d 711

Ray DANSBY, Appellant,

v.Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 10–1990.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 19, 2011.

Filed: June 21, 2012.

Josh Lee, FPD, argued, Julie Pitt, AFPD, on the brief, Little Rock, AR, for Appellant.

Christian Harris, AG, argued, Little Rock, AR, for Appellee.

Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Ray Dansby was convicted by a jury in Arkansas on two counts of capital murder and sentenced to death. The district court denied his application for a writ of habeas corpus. Dansby appeals on five claims covered by a certificate of appealability, and he asks this panel to expand the certificate with respect to four other claims. We affirm in part, vacate the dismissal of Claims II and III in Dansby's second amended petition, deny the applications to expand the certificate, and remand for further proceedings.

I.

As summarized by the Arkansas Supreme Court, see Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995), the evidence at trial showed that on the morning of August 24, 1992, Dansby arrived at the residence of Brenda Dansby, his ex-wife, in El Dorado, Arkansas. Justin Dansby, their nine-year-old son, was in the living room with Ronnie Kimble, Brenda's boyfriend. Justin was home with a cold and watching television, while Kimble was asleep on the couch. Brenda had left earlier to buy orange juice for Justin, and when she returned home, she was confronted by Ray as she pulled her car into her driveway. Ray twice ordered her to leave her car, and she eventually complied. Justin testified at trial that he saw Ray hold Brenda “like a shield” before shooting her in the arm and in the neck.

Greg Riggins, a neighbor from across the street, also offered an account of Brenda's death. According to his trial testimony, Riggins went to his front door after hearing gunshots and witnessed Ray and Brenda struggling with a revolver. He then saw Ray knock Brenda down, get the gun from her, and shoot two consecutive rounds into her from two or three feet away. Brenda tried to rise, and Ray fired again, although Riggins believed the shot missed. After pausing for five or six seconds, Ray shot Brenda once more, and her body went flat.

Justin testified that Ray then entered the home and shot Kimble in the chest, at which point Kimble got his own gun from beneath the couch. Kimble positioned himself behind the couch and attempted to return fire, but his gun only produced “clicking sounds.” Ray chased Kimble to the back of the house, and Justin heard about five more shots. When Justin went to investigate, he saw his father standing over Kimble, kicking him twice and then saying something Justin could not remember. Justin accompanied his father outside the house, where he saw his mother, motionless, with “blood all over her neck.” Ray and Justin walked down the road, and after they separated, Justin called the police.

El Dorado police officers arrived at Brenda's home to find her body outside. They also found an injured Kimble on the floor of the back bedroom, along with a jammed .38 automatic pistol lying under him. Kimble eventually died of his wounds at a local hospital, but not before telling a police detective that Ray Dansby had shot him.

Later the same day, Officer Mike Stegall came upon Ray Dansby, who said, “I'm Ray Dansby, ya'll are looking for me.” Stegall asked Dansby whether he was carrying any guns, and Dansby answered that he had thrown them away. Stegall then took Dansby to the police station, where Lieutenant Mike Hill advised him of his rights. Dansby stated that he had left the scene with two guns, a .32 revolver and a .38 revolver, but had disposed of them where the police would never find them. By Dansby's account of the day's events, he had armed himself before traveling to Brenda's home because he knew both she and Kimble had handguns. Dansby explained that he had entered the front door to Brenda's home to find Kimble holding a handgun in his right hand “pointed down,” and Dansby stated that after an argument ensued, “I just pulled my gun and started shooting.” After making these statements, Dansby submitted to a gunshot residue test and signed a written rights waiver form, but he declined to provide a tape-recorded statement.

At trial, prosecutors presented several pieces of evidence beyond the eyewitness testimony of Justin Dansby and Greg Riggins. The autopsy revealed gunshot wounds near Brenda's left ear and on her upper chest; similar wounds were found on Kimble's chest, right arm, and left upper back, behind his left ear, and superficial wounds were present on his left flank. The jury also heard testimony that Dansby was scheduled to appear in court on charges of second-degree assault and contempt of court at 9:00 a.m. on the day of the murders, and that state prosecutors brought these charges after Brenda had provided them with a signed affidavit alleging that Dansby had assaulted her.

Also testifying for the prosecution was Dansby's jail cellmate Larry McDuffie, the boyfriend of Dansby's half-sister. McDuffie said Dansby admitted in jail that he had murdered Kimble and Brenda. According to McDuffie, Dansby told him he was “just glad” that Brenda was dead. McDuffie also testified that in response to Brenda's pleas for mercy, Dansby answered, “well b– – – – you done f– – – – – up cause I'm not gonna leave you out here in these streets when I done killed this man inside.”

An Arkansas jury convicted Dansby of two counts of capital murder on June 11, 1993, and sentenced him to death by lethal injection on both counts. The Arkansas Supreme Court affirmed the conviction and sentence. Dansby, 893 S.W.2d at 331. Dansby petitioned for postconviction relief under Arkansas Rule of Criminal Procedure 37, claiming ineffective assistance of counsel. The trial court denied the petition, and the Arkansas Supreme Court affirmed. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002).

Pursuant to 28 U.S.C. § 2254, Dansby filed a petition for a writ of habeas corpus in the district court. The district court denied relief on all claims and dismissed the petition. The court then denied Dansby's motion to alter or amend the judgment. Dansby sought a certificate of appealability, and the district court granted a certificate on three claims: that Dansby is actually innocent of the murders of Brenda and Kimble, that improper testimony at trial about Dansby's postarrest silence violated his constitutional rights, and that the evidence offered at trial was insufficient to establish premeditation and deliberation. An administrative panel of this court expanded the certificate of appealability to include Dansby's claims that the State failed to disclose material, exculpatory evidence concerning witness Larry McDuffie, and that the trial court impermissibly limited impeachment of McDuffie at trial in violation of Dansby's rights under the Confrontation Clause.

II.

A.

Dansby's broadest claim (Claim I of the second amended petition) is that new evidence discovered after trial shows that he is actually innocent of murder. On that basis, he argues that the conviction and sentence violate his rights under the Eighth Amendment. Dansby says the new evidence—including documents allegedly withheld by the State and a statement in which prosecution witness McDuffie purportedly recants his trial testimony—would allow him to impeach McDuffie's credibility and establish that Dansby acted in lawful self-defense when he killed Brenda Dansby and Kimble.

The Supreme Court has not decided whether a persuasive demonstration of actual innocence after trial would render unconstitutional a conviction and sentence that is otherwise free of constitutional error. See House v. Bell, 547 U.S. 518, 554–55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The Court has established, however, that the threshold for any such claim, if it were recognized, would be “extraordinarily high.” Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The threshold, if it exists, would require “more convincing proof” than the “gateway” standard that allows for consideration of otherwise defaulted constitutional claims upon a showing of actual innocence. House, 547 U.S. at 555, 126 S.Ct. 2064;see Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Thus, on a freestanding claim of actual innocence, it is not sufficient that a petitioner shows even that it is “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 S.Ct. 851. The “extraordinarily high” threshold, if recognized, would be even higher. House, 547 U.S. at 555, 126 S.Ct. 2064.¹

In its order denying relief, the district court treated this claim as a challenge to the sufficiency of the evidence. When Dansby argued in a motion to alter or amend the judgment that the court misconstrued his claim, the court explained that if it had reached a freestanding actual innocence claim on the merits, then the claim would have failed. The court reasoned that the only evidence proffered in support of actual innocence was impeachment evidence regarding prosecution witness McDuffie, and that a jury could have believed McDuffie even with the new evidence. The court also said that the new evidence, at most, might have established reasonable doubt, but it could not show that no reasonable juror would have found Dansby guilty. There was ample other evidence that negated Dansby's claim of self-defense, the court observed, and it would not have been unreasonable for a juror to reject Dansby's defense even without McDuffie's testimony.

We, too, conclude that Dansby's proffered evidence does not meet the extraordinarilyhigh threshold that might support relief based on a showing of actual innocence. As the district court observed, much of the new evidence is designed to...