Kidd v. Norman

• Decision Date: 29 August 2011
• Docket Number: No. 10–1375.,10–1375.
• Citation: 651 F.3d 947
• Parties: Ricky KIDD, Appellant,v.Jeff NORMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

651 F.3d 947

Ricky KIDD, Appellant,

v.Jeff NORMAN, Appellee.

No. 10–1375.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2011.Filed: Aug. 29, 2011.

Sean D. O'Brien, Prof. of Law, UMKC School of Law, Kansas City, MO, argued (Tiffany R. Murphy, Legal Dir., The Midwestern Innocence Project, Kansas City, MO, on the brief), for appellant.Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.Before BYE, COLLOTON, and GRUENDER, Circuit Judges.BYE, Circuit Judge.

A Missouri jury found Ricky Kidd guilty of first-degree murder. He received a sentence of life imprisonment without the possibility of parole. After exhausting his state court remedies, Kidd filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Kidd alleged a Schlup¹ “gateway” claim of actual innocence hoping to resurrect ineffective-assistance-of-counsel claims which had been procedurally defaulted in his post-conviction proceedings. Applying this court's definition of what constitutes “new” evidence under Schlup, see Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001) (“[E]vidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence”), the district court ² found Kidd failed to present new reliable evidence in support of his claim and denied the petition. Kidd obtained a certificate of appealability. On appeal, Kidd claims Amrine 's definition of “new” evidence is inconsistent with Schlup, as well as the Supreme Court's intervening decision in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). We conclude we are bound to follow Amrine, and therefore affirm the district court.

I

On February 6, 1996, at about 11:30 in the morning, George Bryant and Oscar Bridges were shot and killed at Bryant's home on Monroe Street in Kansas City, Missouri. After an investigation, Kidd and another man, Marcus Merrill, were charged with first-degree murder in the deaths of the two men. The evidence against Kidd and Merrill included testimony from Bryant's daughter, Kayla, who was four years old at the time of her father's death and present in the Bryant home when the shootings occurred. During the investigation, Kayla told police three men visited her father on the day of the shootings. Kayla picked Merrill out of a photo and video lineup as one of the three men involved in the shootings. She reaffirmed her previous identifications of Merrill during trial, but did not make an in-court identification of him. Kayla had picked Kidd out of a video lineup during the investigation, but failed to reaffirm her previous identification of him during trial. She also failed to make an in-court identification of Kidd.

The evidence against Kidd also included testimony from Richard Harris, one of Bryant's neighbors on Monroe Street. Harris testified he was walking down Monroe Street at the time of the shootings, and saw Bryant's garage door opening while he passed Bryant's house. He saw Bryant duck underneath the garage door, heard Bryant yell for help, and saw a blood stain on the front of his shirt. Another man, who Harris identified as Gary Goodspeed, Jr.,³ chased after Bryant. Goodspeed, Jr., caught Bryant and dragged him behind a car parked near Bryant's carport. Harris then saw a second pursuer exit the house. The second man walked over to where Bryant was lying wounded and shot Bryant twice with a gold .45 caliber handgun. During the investigation, Harris identified Kidd as the shooter in both a photo and video lineup. At trial, Harris testified he was “2001% sure” Kidd was the man who shot Bryant as he lay wounded near the carport. Appellant's App'x at 159.

During the investigation, the police questioned Kidd and his girlfriend, Monica Gray, about their whereabouts on the day of the shootings. Both indicated they picked up Kidd's car at his sister's place of employment in downtown Kansas City about 11:00 a.m. and then drove to the Jackson County (Mo.) Sheriff's office near Lake Jacomo (approximately a half hour from downtown Kansas City) to fill out an application to purchase a handgun. Kidd then visited his daughter, who lived with Kidd's former girlfriend, Kelly McGill, in Blue Springs, Missouri. Kidd's alibi was partially supported by the fact the Jackson County Sheriff's office ran a background check on Kidd's handgun permit application at 1:47 p.m. on the day of the shooting.⁴

At trial, Kidd presented evidence of his alibi through himself, his sister, his sister's coworker, his girlfriend, and his former girlfriend. The jury rejected Kidd's alibi, however, and found him guilty. The jury also found Merrill guilty. Both were sentenced to life in prison without the possibility of parole.

Kidd filed a direct appeal, which was unsuccessful. State v. Kidd, 990 S.W.2d 175, 186 (Mo.Ct.App.1999). Kidd then brought a motion for post-conviction relief alleging his direct appeal counsel was ineffective for failing to argue Kidd should not have been sentenced as a prior offender. The Missouri Court of Appeals determined Kidd suffered no prejudice from appellate counsel's failure to challenge Kidd's prior offender status, and affirmed the denial of his motion for post-conviction relief. State v. Kidd, 75 S.W.3d 804, 815 (Mo.Ct.App.2002). Notably, Kidd did not challenge the effectiveness of his trial counsel in his post-conviction action.

Kidd filed a timely habeas petition in federal district court. His habeas petition was initially dismissed, but he obtained new counsel and filed a successful Rule 60(b) motion to have the petition reopened. The amended petition raised eight new claims, including five claims alleging the ineffectiveness of Kidd's trial counsel. Kidd admitted all eight claims had been procedurally defaulted by failing to raise them in his state court post-conviction proceeding, but claimed he could overcome the default by showing his actual innocence. Specifically, Kidd alleged the three men who murdered Bryant and Bridges were Merrill, Gary Goodspeed, Jr., and Gary Goodspeed, Sr. Kidd had an affidavit from Merrill admitting his own role in the two murders, and stating Kidd was not involved. Merrill averred that Kidd “was mistaken for [Goodspeed, Sr.] since they favor.” State App'x at 109.

The federal district court held an evidentiary hearing. Merrill testified on behalf of Kidd. He said he and the Goodspeeds committed the murders. Merrill gave a detailed description of the shootings, which matched the physical evidence found at the crime scene. Merrill stated Kidd was not involved. On cross-examination, however, Merrill admitted he and Kidd communicated with one another while the two were incarcerated after being found guilty. Merrill acknowledged he did not come forward with his current story exonerating Kidd until he had exhausted all of his own appeals.

Several letters between Merrill and Kidd were introduced into evidence. In the first letter, Merrill sent a message to Kidd through another inmate which said Merrill could help Kidd get out of jail, but that in return, Merrill wanted to get out of jail as well. Kidd responded to Merrill, stating:

If Sean [my attorney] can ... play you decent (which I am confident he can) let say three to five more. Okay, you do the first 15 and let [the Goodspeeds] do their share of the rest.... Sean and I figured out that's where you could come in at. Indeed he is not the DA's office, but I do believe he can bring you within a range of time you can deal with.

Id. at 116–17.

Merrill admitted he understood this letter to mean if he testified for Kidd, he might get his life sentence reduced. Merrill responded to the letter by asking Kidd, “[a]lso it's needed to be known what is needed of me and what do I receive in return?” Id. at 124. Kidd responded: “I imagine the D.A. Office will, at least, want an outline of what you would be speaking on.... They would then be in a position to offer you what you want (within reason)..... at this stage you become valuable—more to them than to me.” Id. at 119–20. Merrill admitted his testimony was based on his self interest in reducing his life sentence.

Kidd also testified at the hearing, restating his alibi evidence. In addition, Kidd claimed for the first time that Gary Goodspeed, Jr., contacted him the day before the murders. Kidd met with the Goodspeeds. During the meeting, Goodspeed, Sr., asked Kidd about Bryant's status in the drug community and asked Kidd if he would be interested in robbing Bryant. Kidd declined. Kidd further testified that Goodspeed, Sr., called Kidd on the night of the murders and said Bryant was dead, claiming someone had robbed Bryant before Goodspeed, Sr., had a chance to do so. According to Kidd, Goodspeed, Sr., later met with him and admitted to the murders. On cross-examination, Kidd acknowledged not revealing any of this information to the police in the initial investigation, and admitted lying to the police and changing his story after he discovered he was a suspect.

Richard Harris also testified at the hearing. Although Harris still maintained Kidd was the shooter, Kidd's habeas counsel was able to discredit much of Harris's eyewitness testimony, pointing out discrepancies in his testimony and generally impeaching Harris's credibility. For example, Harris claimed Bryant's shooter had a red do-rag on his head with hair flowing out the back, but it was undisputed Kidd had a shaved head at the time of the murders. In addition, habeas counsel established that Harris frequently used drugs with Bryant, and Harris was upset with Bryant because Bryant wanted to kill Harris's best friend. Furthermore, on the morning of the shootings, Harris admitted smoking marijuana at a neighbor's house before walking past Bryant's house. Harris was walking back to his house to get some food because he was hungry, the implication being he was under the...