Schlup v. Delo

• Decision Date: 17 November 1993
• Docket Number: No. 93-3272,93-3272
• Citation: 11 F.3d 738
• Parties: Lloyd E. SCHLUP, Appellant, v. Paul K. DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 738

11 F.3d 738

Lloyd E. SCHLUP, Appellant, v. Paul K. DELO, Appellee.

No. 93-3272.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 3, 1993.

Decided Nov. 15, 1993.

Order Denying Suggestion for

Rehearing En Banc and Motion

for Stay Nov. 17, 1993

Sean D. O'Brien of the Missouri Capital Punishment Resource Center, argued, Kansas City, MO, for appellant.

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued for appellee.

Before JOHN R. GIBSON, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Lloyd Eugene Schlup, a Missouri death-row inmate, requests a stay of execution and reversal of the district court's judgment denying his second petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The district court ¹ dismissed Mr. Schlup's second petition on August 23, 1993, and denied his subsequent Fed.R.Civ.P. 59(e) motion to set aside the dismissal order. The district court's final ruling came on September 13, 1993, and Mr. Schlup's appeal and motion for a stay of execution pending the resolution of his appeal followed.

The district court dissolved its stay of execution on September 15, 1993, in conjunction with its final rulings on the second petition. After a hearing, we denied the motion for stay pending appeal. Schlup v. Delo, No. 93-3272, 1993 WL 409815, 1993 U.S.App. LEXIS 26748 (8th Cir. Oct. 15, 1993). We now vacate that opinion and consider a renewed request for stay and the merits of Mr. Schlup's appeal.

In support of his second petition for habeas relief, this appeal, and the renewed request for stay of execution, Mr. Schlup tendered to the district court and now tenders to this court several affidavits and statements, mostly from present or former prisoners, purporting to be newly discovered evidence tending to establish that he was not present at the scene of the murder for which he was sentenced to death. He also renews his reliance on a videotape, offered at trial as part of an alibi defense, showing his presence in the dining room near the time of the murder. In other words, appellant says he could not have been present at the assault and is actually innocent of the crime.

I.

In his second petition, Mr. Schlup asserts a number of constitutional claims not raised, or raised and denied in his first petition. Thus, these allegations constitute either successive or abusive uses of the writ, 28 U.S.C. Sec. 2244(b), and may be considered by this court only under limited circumstances. Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992).

Unless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); (b) new claims, not previously raised which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). These cases are premised on our concerns for the finality of state judgments of conviction, and the "significant costs of federal habeas review." McCleskey, supra, at 490-91, 111 S.Ct. at 1468; see, e.g., Engle v. Isaac, 456 U.S. 107, 126-128, 102 S.Ct. 1558, 1571-1572, 71 L.Ed.2d 783 (1982).

Id. (parallel citations omitted).

Mr. Schlup seeks to establish "cause and prejudice" or, in the alternative, seeks to establish his "actual innocence" of the crime as a means of obtaining federal court review of his constitutional claims. The district court reviewed and denied his cause and prejudice allegations. We agree with this result and adopt the well-reasoned opinion of the district court in this regard.

II.

A. Procedural Bar

Under a second federal habeas review of a petitioner's state court conviction, a claim of actual innocence requires a dual analysis. First, we must consider Mr. Schlup's attempt to invoke the rule announced in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) that even if a petitioner cannot meet the cause and prejudice standard, a federal court may examine the merits of a constitutional claim if failure to do so would result in a miscarriage of justice. Id., at 454, 106 S.Ct. at 2627. A petitioner "may make the requisite showing by establishing that ... he has a colorable claim of factual innocence." Id. The contours of this qualification were more clearly delineated by the Supreme Court in Sawyer v. Whitley, which referred to the test as the miscarriage of justice or "actual innocence" exception. Sawyer, --- U.S. at ----, 112 S.Ct. at 2519.

In this context, actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). Thus, the question is: Has this appellant established "actual innocence" as defined by the Supreme Court? We think not, at least under the test this panel must apply.

Sawyer dealt with the punishment phase of the criminal proceeding as opposed to the guilt or innocence phase of the trial. Therefore, appellant argues, with some justification, that Sawyer announced only a test for analyzing the fairness of the death penalty portion of a trial. And, the Supreme Court did say, in Sawyer, with regard to guilt or innocence:

Our standard for determining actual innocence was articulated in Kuhlmann as: "[T]he prisoner must 'show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of the facts would have entertained a reasonable doubt of his guilt.' "

Sawyer, --- U.S. at ----, 112 S.Ct. at 2519, n. 5 (citations omitted).

On the other hand, Sawyer says that "actual innocence" under the death penalty phase of a case must be determined by considering whether a "petitioner has shown by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty." Id., at ----, 112 S.Ct. at 2523. Says appellant, this seemingly higher (penalty) test is necessary because the amorphous concept of being actually "innocent of death" requires a more objective standard. Id., at ----, 112 S.Ct. at 2519-20. In other words, in the context of guilt or innocence of the crime itself, the concept of "actual innocence" is easier to grasp. Id., at ----, 112 S.Ct. at 2520. Thus, the more subjective Kuhlmann test is sufficient.

Whatever the merits of appellant's contentions, we do not write on a clean slate. We must reject appellant's argument because in this circuit "the new standard [required by Sawyer ] applies equally to challenges to a conviction, not just challenges to a death sentence." McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992). And, the imprimatur of this court en banc was stamped on the McCoy holding in Cornell v. Nix, 976 F.2d 376 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993). Accordingly, we make our determination of whether Mr. Schlup's claim of actual innocence opens the gateway to our consideration of his constitutional claims on that basis.

Before reviewing the gateway evidence now advanced by Mr. Schlup, we consider the presence or absence of any constitutional error at the trial for which relief could be granted. The dissent contends that there was constitutional error in the form of "utter ineffectiveness of Schlup's trial counsel" and that but for this error "the jury would have received the full picture of Dade's murder, and if it were to credit the evidence, it would have no choice but to acquit." The dissent barely mentions that, although the district court found the claim of ineffective assistance to be procedurally barred, we disregarded this holding and considered the merits of this ineffective assistance claim in the appeal of Mr. Schlup's first petition for habeas relief. Schlup v. Armontrout, 941 F.2d 631, 638-42 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1273, 117 L.Ed.2d 499 (1992). We found that under the test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), Mr. Schlup's counsel was not ineffective at either the guilt or penalty stages of the state trial proceeding. Schlup, 941 F.2d at 639. We see no reason to change this result even if we consider the evidence Schlup now presents.

As at the first habeas, Mr. Schlup faults his counsel, Mr. Bushmann, for failing to sufficiently investigate the facts surrounding the murder of Arthur Dade. The dissent agrees. This allegation is erroneous and unfair.

There were three inmates involved in the murder. The three lawyers representing the accused worked together on parts of their investigations. Mr. Bushmann spearheaded the discovery and defense preparation. He arranged and participated in the taking of thirty-eight depositions including those of every guilt witness who testified at trial and who was directly related to the prison. It was Mr. Bushmann's persistence that confirmed the existence of the dining room videotape now used by Mr. Schlup in his effort to show actual innocence. Mr. Bushmann also determined through discovery that one hundred persons were interviewed by prison investigators and appears to have obtained, for review, the tapes or transcripts of all the statements resulting from these inquiries. The trials of...