Feather v. United States, 112221 FED8, 20-3371

Docket Nº20-3371
Opinion JudgeLOKEN, CIRCUIT JUDGE.
Party NameGarfield Feather Appellant v. United States of America Appellee
Judge PanelBefore SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Case DateNovember 22, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (8th Circuit)

Garfield Feather Appellant

v.

United States of America Appellee

No. 20-3371

United States Court of Appeals, Eighth Circuit

November 22, 2021

Submitted: October 19, 2021

Appeal from United States District Court for the District of South Dakota - Southern Division

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

LOKEN, CIRCUIT JUDGE.

In 1994, after a three-week trial, a jury convicted Garfield Feather and three codefendants of sexually abusing five nieces. In recently denying Rule 60(b)(6) motions by Feather's co-defendants, which we treated as successive motions for postconviction relief under 28 U.S.C. § 2255, we summarized the extensive

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post-conviction proceedings that followed the trial, all conducted by the same district court judge[1] who presided at trial: After a hearing, the district court denied defendants' post-trial motion for new trial based on the alleged anti-Native American bias of one juror. On direct appeal, we affirmed the convictions and the denial of a new trial. United States v. Rouse, 111 F.3d 561, 565 (8th Cir.), reconsidering 100 F.3d 560 (8th Cir. 1996), cert. denied, 522 U.S. 905 (1997) ("Rouse I"). In 1999, defendants filed a second motion for new trial alleging that the four victims who testified at trial recanted allegations of sex abuse. See Fed. R. Crim. P. 33(b)(1). The district court denied this motion after a four-day evidentiary hearing, finding "no reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F.Supp.2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) ("Rouse II").

Rouse v. United States, 14 F.4th 795, 798 (8th Cir. 2021) ("Rouse III").

In 2018, Feather filed this motion for § 2255 relief, which the district court, without objection by the government, treated as an initial § 2255 motion because Feather's first pro se request for § 2255 relief was improperly dismissed in 2010. Feather raises three claims. The substance of each was also raised by his codefendants in Rouse III. As the district court recognized, Feather's claims are not subject to the significant restrictions Congress placed on successive § 2255 motions in the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2255(h).

In a 25-page Memorandum Opinion and Order, the district court dismissed each claim on the merits, without an evidentiary hearing, concluding that one was

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untimely under § 2255(f). Feather v. United States, CIV 18-4090 (D.S.D. Sept. 14, 2020). Feather appeals the dismissal of each claim on the merits and the court's failure to grant an evidentiary hearing. Reviewing the dismissal of § 2255 claims de novo, we affirm. Ingram v. United States, 932 F.3d 1084, 1088 (8th Cir.), cert. denied, 140 S.Ct. 610 (2019). We separately discuss each claim. The reader is referred to Rouse I, Rouse II, and Rouse III for additional facts and analysis.

I. The Flawed Scientific Evidence Due Process Claim

At trial, the government presented testimony by pediatrician Richard Kaplan, who examined the young victims, regarding his medical findings and what the children told him, and by Dr. Robert Ferrell, who testified he conducted colposcopic examinations of the five victims that revealed significant evidence of sexual abuse. See Rouse I, 111 F.3d at 565. We described this medical evidence as "powerful" in affirming the denial of a joint new trial motion in Rouse II, 410 F.3d at 1008. For an additional summary of this trial evidence, see Hubbeling v. United States, 288 F.3d 363, 367 (8th Cir. 2002), affirming the denial of co-defendant Russell Hubbeling's initial motion for § 2255 relief.

In support of his § 2255 motion, Feather submitted affidavits from Drs. Joyce Adams and Janice Ophoven, experts in pediatric sexual assault, criticizing the qualifications, examination techniques, and medical conclusions of Dr. Ferrell. Feather argues that, based on changes in forensic medical science noted by Drs. Adams and Ophoven, the government relied on "fundamentally defective" evidence that was "inconsistent with sound scientific methods." In his reply brief to the district court, relying on decisions of the Third and Ninth Circuits, Feather argued this flawed scientific evidence rendered his trial fundamentally unfair in violation of his Fifth Amendment Due Process rights. See Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012) ("Lee I"); Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015) ("Lee II"); Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir.), cert. denied 137 S.Ct. 503 (2016). The district court,

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recognizing that we have not decided whether use of flawed expert testimony could result in a constitutional violation, assumed this due process claim is cognizable and denied it on the merits: Even if Dr. Ferrell's reliance on his colposcope findings is outdated, it did not undermine the fundamental fairness of the entire trial. And even assuming Dr. Ferrell couldn't testify that his physical findings alone establish sexual abuse, there is ample other evidence on which a jury could find Feather guilty beyond a reasonable doubt.... [T]he victims' testimony at trial corroborated portions of other witnesses' testimony about the sexual abuse. Also, Dr. Kaplan and Dr. Ferrell testified about spontaneous statements the children made to them, and those statements corroborated the victims' testimony at trial. The evidence and testimony presented at the 2001 evidentiary hearing on recantations further supports a finding that the victims' trial testimony was credible.

Order at p.17.2 In Rouse III, we reached the same conclusions in denying the Rule 60(b) motions of Feather's co-defendants on the merits. 14 F.4th at 803-04.

On appeal, Feather argues the district court erred in rejecting his claim that the government's flawed forensic medical evidence undermined the fundamental fairness of the entire trial, violating his right to due process. In Rhodes v. Smith, we "assume[d] for purposes of the argument" that a conviction based on "false" expert testimony would violate the Due Process Clause. 950 F.3d 1032, 1036 n.2 (8th Cir.), cert. denied, 141 S.Ct. 365 (2020). Applying the "clear and convincing evidence" test for successive habeas petitions, we concluded in Rhodes that the defendant's "new peer-reviewed medical literature" and state Department of Natural Resources

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survey data failed to prove the government's expert testimony was "false," and there was independent support for the murder conviction beyond this testimony. Id. at 1034, 1036-37; see 28 U.S.C. § 2244(b). Here, too, assuming without deciding that the government's use of false or discredited scientific evidence could violate a criminal defendant's right to due process, like the district court we conclude that Feather failed to prove that his trial and conviction were fundamentally unfair.3

II. The Freestanding Actual Innocence Claims

Feather argues his conviction violated both the Fifth Amendment Due Process Clause and the Eighth Amendment prohibition on cruel and unusual punishment because "significant new proof" demonstrates that he was...

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