Rhodes v. Smith, No. 18-3581

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtGRASZ, Circuit Judge.
Citation950 F.3d 1032
Parties Thomas Daniel RHODES Petitioner - Appellant v. Michelle SMITH, Warden Respondent - Appellee
Docket NumberNo. 18-3581
Decision Date24 February 2020

950 F.3d 1032

Thomas Daniel RHODES Petitioner - Appellant
v.
Michelle SMITH, Warden Respondent - Appellee

No. 18-3581

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2019
Filed: February 24, 2020


Mark R. Bradford, BASSFORD & REMELE, Minneapolis, MN, Julie Jonas, INNOCENCE PROJECT OF MINNESOTA, Saint Paul, MN, Samuel Thomas Lockner, Alexandra J. Olson, CARLSON & CASPERS, Minneapolis, MN, for Petitioner-Appellant.

Matthew Frank, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Appeals Division, Saint Paul, MN, for Respondent-Appellee.

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

GRASZ, Circuit Judge.

Thomas Rhodes appeals the district court’s1 denial of his third successive federal

950 F.3d 1034

habeas corpus petition from his state law murder conviction. Despite Rhodes’s claims of new scientific evidence proving innocence and entitlement to an evidentiary hearing, the district court found it lacked jurisdiction to hear his petition because he failed to establish by clear and convincing evidence it was "more likely than not that no reasonable jury would have found [him] guilty beyond a reasonable doubt." 28 U.S.C. § 2244(b)(4). Due to the Antiterrorism and Effective Death Penalty Act’s ("AEDPA") steep procedural hurdles for second or successive federal habeas petitions, we agree.

I. Background

Rhodes was convicted of the first-degree and second-degree murder of his wife, Jane Rhodes, after she drowned while the two were boating on Green Lake in August 1996. Around 11:30 p.m. Jane and Rhodes were in their speedboat on Green Lake and at some point around midnight Jane went overboard. Rhodes contends he jumped into the water to search for Jane and drove around in the boat looking before returning to their hotel to call the police. Rhodes then took the police to the place on the lake where he alleged Jane fell out, but the police searched to no avail. About thirteen hours later, some fishermen found Jane’s body floating on the lake’s surface nine-tenths of a mile away from where Rhodes took the police officers.

At trial, the State argued Rhodes forced his wife overboard with a blow to the neck, struck her multiple times with the hull of the boat, and lied to the police about the location of the drowning. Among other witnesses, the State presented Dr. Michael McGee as their medical expert. McGee testified about Jane’s injuries, including the severe bruising to the upper face along the hairline, at least one black eye, and internal bleeding underneath the scalp. McGee testified these facial injuries could be consistent with multiple strikes from the boat’s hull. He also testified regarding a laceration near her mouth and a pair of injuries to her forearms. Significant to this appeal, McGee further testified about the internal hemorrhaging in Jane’s neck. Specifically, he discussed how Jane’s autopsy showed "a series of soft tissue hemorrhages inside her neck region" but showed no external injury or bruising. In McGee’s opinion, Jane "received some type of trauma to the outer surface of the skin in the neck area ..., with enough force to cause breakage of the blood vessels ... and cause the hemorrhage to occur for a period of time prior to the subject’s death." McGee further acknowledged it was possible the external injury could have been caused by a hand striking the neck in a "V position."

In his current petition on appeal, Rhodes argues new peer-reviewed medical literature elucidates that internal neck hemorrhages may be consistent with injuries sustained in the drowning process, and that such injuries were not necessarily inflicted before drowning.

Another important topic at trial was the water temperature of Green Lake at the time of Jane’s drowning. At trial, the State argued Rhodes was not truthful in disclosing the location of the drowning to the police because in the location Rhodes identified, the water was forty feet deep and Jane’s body resurfaced only thirteen hours after the drowning occurred. An expert witness, Captain William Chandler, testified that once an adult person drowns and submerges, the body will go straight down. In the absence of a current or other obstruction, the body will not travel after sinking but will eventually refloat due to the decomposition of the body by bacteria. The hotter the water, the quicker the decomposition and resurfacing time. Chandler testified that "[i]n Minnesota lakes,

950 F.3d 1035

upper Midwest, they are all fresh water lakes that are over 30 feet deep, you’ve got some basic levels of water in all of them, but starting about 30 feet on down, the bottom temperature of any Minnesota lake year round is about 39 degrees, so it’s essentially like a refrigerator." Chandler concluded that he believed a body drowned in the location Rhodes identified would have taken "several weeks" to refloat. Even Dale Morry, Rhodes’s expert, testified that although water temperature varies from lake to lake depending on the depth, size, and surface temperature, "as a ‘rule of thumb’ a person who drowned in 40 feet of water would resurface in five to eight days."

For purposes of this habeas action, Rhodes alleges Chandler’s testimony was false because a survey completed by the Minnesota Department of Natural Resources ("DNR") in 2006 indicated the temperature of Green Lake in August of 1996 at a depth of forty feet was 68.9 degrees.

At trial there was also evidence presented of a "six-month...

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7 practice notes
  • Feather v. United States, 20-3371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 22, 2021
    ...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......
  • Feather v. United States, CIV 18-4090
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 14, 2020
    ...has not addressed whether introduction of flawed expert testimony could amount to a constitutional violation. See Rhodes v. Smith, 950 F.3d 1032, 1036 n. 2 (8th Cir. 2020). In Rhodes, the Eighth Circuit was faced with deciding if a petitioner convicted of murder for a drowning death could f......
  • Rick v. Harpstead, 19-cv-2827 (NEB/DTS)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 13, 2021
    ...information, which reveals that a conviction results from “false testimony, ” may amount to a due process violation. Rhodes v. Smith, 950 F.3d 1032, 1036 n.2 (8th Cir. 2020). Introducing false evidence at trial violates due process, see Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012), e......
  • Pitts v. Payne, 5:15-cv-00354 DPM-JTK
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • December 4, 2020
    ...See Doc. No. 12; see also Rhodes v. Smith, Case No. CV 17-4025 (JNE/BRT), 2018 WL 5555123, at *2 (D. Minn. Oct. 29, 2018), aff'd, 950 F.3d 1032 (8th Cir. 2020) (citing Case v. Hatch, 731 F.3d at 1026 n.3) (noting that an unpublished order authorizing second habeas petition did not have prec......
  • Request a trial to view additional results
7 cases
  • Feather v. United States, 20-3371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 22, 2021
    ...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......
  • Feather v. United States, CIV 18-4090
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 14, 2020
    ...has not addressed whether introduction of flawed expert testimony could amount to a constitutional violation. See Rhodes v. Smith, 950 F.3d 1032, 1036 n. 2 (8th Cir. 2020). In Rhodes, the Eighth Circuit was faced with deciding if a petitioner convicted of murder for a drowning death could f......
  • Rick v. Harpstead, 19-cv-2827 (NEB/DTS)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 13, 2021
    ...information, which reveals that a conviction results from “false testimony, ” may amount to a due process violation. Rhodes v. Smith, 950 F.3d 1032, 1036 n.2 (8th Cir. 2020). Introducing false evidence at trial violates due process, see Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012), e......
  • Pitts v. Payne, 5:15-cv-00354 DPM-JTK
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • December 4, 2020
    ...See Doc. No. 12; see also Rhodes v. Smith, Case No. CV 17-4025 (JNE/BRT), 2018 WL 5555123, at *2 (D. Minn. Oct. 29, 2018), aff'd, 950 F.3d 1032 (8th Cir. 2020) (citing Case v. Hatch, 731 F.3d at 1026 n.3) (noting that an unpublished order authorizing second habeas petition did not have prec......
  • Request a trial to view additional results

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