Feather v. United States

• Decision Date: 22 November 2021
• Docket Number: No. 20-3371,20-3371
• Citation: 18 F.4th 982
• Parties: Garfield FEATHER, Appellant v. UNITED STATES of America, Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.4th 982

Garfield FEATHER, Appellant

v.UNITED STATES of America, Appellee

No. 20-3371

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2021

Filed: November 22, 2021

Garfield Feather, Rapid City, SD, Pro Se.

Daniel Robert Fritz, Jr., Ballard & Spahr, Minneapolis, MN, Julie Jonas, Andrew John Markquart, Innocence Project of Minnesota, Minneapolis, MN, for Appellant.

Stephanie Carlson Bengford, Assistant U.S. Attorney, Kevin Koliner, Assistant U.S. Attorney, U.S. Attorney's Office, District of South Dakota, Sioux Falls, SD, for Appellee.

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 co-defendants 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 post-conviction relief under 28 U.S.C. § 2255, we summarized the extensive post-conviction proceedings that followed the trial, all conducted by the same district court judge¹ 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, 118 S.Ct. 261, 139 L.Ed.2d 188 (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 co-defendants 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 untimely under § 2255(f). Feather v. United States, CIV 18-4090, 2020 WL 5517198 (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, ––– U.S. ––––, 140 S.Ct. 610, 205 L.Ed.2d 404 (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 ––– U.S. ––––, 137 S.Ct. 503, 196 L.Ed.2d 414 (2016). The district court, 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, ––– U.S. ––––, 141 S. Ct. 365, 208 L.Ed.2d 92 (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 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 actually innocent of the child sex abuse offenses. In support, he relies on (i) new affidavits from the now-adult victims reasserting the recantations at issue in Rouse II, and (ii) the previously discussed affidavits from medical experts Adams and Ophoven questioning the qualifications, examination techniques, and medical conclusions of government trial expert Ferrell. Feather argues this new evidence, individually and in combination, establishes his innocence.

The Supreme Court has not decided "whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence." McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). In Dansby v. Hobbs, a death penalty case, we noted the Supreme Court has established that the threshold for such a claim, if it were recognized, would be "extraordinarily high," requiring:

more convincing proof than the "gateway" standard that allows for consideration of otherwise defaulted constitutional claims upon a showing of actual innocence. Thus, on a freestanding claim of actual innocence, it is not sufficient that petitioner shows it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.

766 F.3d 809, 816 (8th Cir. 2014) (cleaned up), cert. denied 577 U.S. 828, 136 S.Ct. 297, 193 L.Ed.2d 46 (2015), citing House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), and Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Once again, we need not decide whether a freestanding actual innocence claim is cognizable because, as in Rouse III, Feather's "newly discovered victim recantations, medical science evidence, and [juror bias evidence] do not meet the extraordinarily high burden of proving actual innocence." 14 F.4th at 803 (quotations omitted).

A. Feather relies on 2018 affidavits from four of the five sex abuse victims. These four testified at the new trial hearing in 1999 that they lied when they accused their uncles of sex abuse "during [pretrial] interviews by a [Bureau of Indian Affairs] investigator, an FBI agent, the prosecutor, and later at trial because they believed that lying would enable them to return home." Rouse II, 410 F.3d at 1007. In the new affidavits, each of the now-adult victims avers...