Perry v. Norris, 95-1852

• Decision Date: 27 February 1997
• Docket Number: No. 95-1852,95-1852
• Citation: 107 F.3d 665
• Parties: Eugene Wallace PERRY, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 665

107 F.3d 665

Eugene Wallace PERRY, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 95-1852.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1997.

Decided Feb. 27, 1997.

Sam T. Heuer, Little Rock, AK, argued, for Appellant.

Kelly Kristine Hill, Deputy Attorney General, Little Rock, AK, argued, for Appellee.

Before BOWMAN and MURPHY, Circuit Judges, and JONES, ¹ District Judge.

MURPHY, Circuit Judge.

Eugene Wallace Perry appeals the denial of his second petition for habeas corpus. After conducting two evidentiary hearings the district court ² denied his successive petition. We affirm.

Perry was convicted and sentenced to death for the 1980 murders of Kenneth Staton and Suzanne Ware who were robbed and shot in their jewelry store in Van Buren, Arkansas. After pursuing relief in state court, Perry filed a petition for habeas corpus in federal court in 1983, which was denied. Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 378, 107 L.Ed.2d 363 (1989). In 1990 he filed a second habeas petition in which he claimed he was actually innocent of the murders and that his Sixth Amendment rights were violated when the trial court did not compel defense witnesses to testify. Included with that petition were the unsworn statements of Marion Pruett, who is also on death row in Arkansas, in which Pruett claims that he committed the murders. The district court held an extensive evidentiary hearing and wrote a thorough opinion that carefully examined Pruett's statements as well as the entire record and concluded there was "no likelihood of Mr. Perry's being innocent of the capital murders." Perry v. Norris, 879 F.Supp. 1503, 1582 (E.D.Ark.1995). The court also held that the defense witnesses were not "sufficiently material" to warrant compulsory process under the Sixth Amendment. Id. at 1514. The district court did not permit Perry to amend his second habeas petition with claims of ineffective assistance of counsel and Brady violations since there was no "procedural gateway" that would allow it to consider new claims. Id. at 1582.

After he filed an appeal from the denial of his second petition, Perry submitted two additional documents. One was an affidavit of Mark Gardener, who is also on death row, which stated that some evidence implicating Perry had been fabricated. The second was the sworn statement of Marion Pruett, which contained essentially the same information that had been submitted in his earlier unsworn statements. The case was then remanded to the district court so it could consider whether further proceedings were necessary to examine this material. The district court found the Gardener affidavit contained false statements and held a hearing regarding Pruett's new statement. At that hearing, Pruett refused to testify. The district court then concluded that neither the Gardener affidavit nor Pruett's sworn statement would affect its earlier decision.

Perry contends that Pruett's statement proves that he is actually innocent of the murders and therefore there is no precedential bar to consideration of the constitutional violations alleged in his second habeas petition. ³ Perry also claims he is entitled to amend his second habeas petition.

A petition for a writ of habeas corpus will be examined even if otherwise procedurally barred if the petitioner is able to demonstrate that a miscarriage of justice would occur were the petition not considered. This exception requires the petitioner to present new reliable evidence of his innocence and to prove that no reasonable juror would have found him guilty. Schlup v. Delo, 513 U.S. 298, ----, 115 S.Ct. 851, 865, 868, 130 L.Ed.2d 808 (1995). The factual findings of the district court will stand absent clear error. McDonald v. Bowersox, 101 F.3d 588, 592 (8th Cir.1996).

The district court found Pruett's sworn statement and unsworn statements unreliable, and there was much evidence to support this finding. Pruett, who is on death row in Arkansas for kidnapping and murder, has been convicted of murder in two other states and has confessed to other killings and other violent crimes. Pruett has sought payment for his testimony, and there is evidence that he seeks attention and wealth from his story, including a television appearance and a contract to publish a book about these murders. Pruett's statement is not credible on its face for it includes an enormous amount of detail not normally found in statements of past experience. ⁴ The unsworn statements were made nine years after the murders (the sworn statement was made fifteen years after the murders). All of the detail contained in the statements was either part of the trial record reflected in the transcript or could have been obtained from Perry, who had opportunities to discuss the murders with Pruett. Finally, the...