The opinion
MEMORANDUM OPINION
EISELE, District Judge.
On January 17, 1990, Mr. Eugene Wallace Perry filed a “Supplemental Petition for Writ of Habeas Corpus” on the ground that he was “awaiting execution, pursuant to a conviction obtained in violation of the 14th Amendment to the U.S. Constitution.” He raises two claims for relief:
A. Newly discovered evidence that Marion Pruett, and not petitioner, committed the crime, entitles petitioner to a new trial as a matter of due process.
B. The trial court’s refusal to permit the issuance of subpoenas to compel the attendance of four out-of-state alibi witnesses violated Perry’s 6th Amendment right to compulsory process.
The latter issue was one of many that was dealt with by the Court as a result of petitioner’s first habeas corpus petition which was denied by the Court in 1986.
The original state court trial occurred in July of 1981. This Court on July 11, 1986, reviewed from the bench the evidence ad
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duced during the state trial. It mil be repeated here as background for a discussion of the issues raised in the 1990 Supplemental Petition. That review commences at page 159 of Volume II of the transcript of the habeas proceeding (which transcript was filed October 17,1986) and concludes at page 170, as follows:
Sometime in the late afternoon of September 10, 1980, someone robbed the Sta-ton Jewelry Store in Van Burén, Arkansas, of an estimated $100,000 worth of rings, watches and other jewelry, and shot to death the owner of the store¡ Kenneth Staton, and his daughter, Suzanne Ware, who also worked in the store. A clerk at a neighboring store in the same Cloverleaf shopping Center in Van Burén discovered two bound and gagged bodies in the rear part of the store at around 6:00 p.m. Autopsies revealed that both Ware and her father had been shot twice in the head from close range.
Key witnesses for the state placed the petitioner, Eugene Wallace Perry,'in and around the Staton Jewelry Store on several occasions preceding the robbery and murders. At least seven persons identified the petitioner as a man that they had seen in the Van Burén area during a period surrounding the 10th of September, 1980. In addition, various pieces of physical evidence connect the petitioner to the jewelry store and the September 10, 1980, crime. The Court believes it is important to set forth all of this evidence in some detail.
Ruth Staton, the wife and mother of the victims, testified that she saw the petitioner in the Staton Jewelry Store on September 3, 1980, one week before the robbery. She stated the man she believed to be the petitioner remained in the store looking at the display cases for over 30 minutes, affording her an opportunity to observe him. Mrs. Staton testified that the man was there with a woman and that this man conspicuously kept his hands tucked under his arms or in his pockets.
Two other local merchants testified that the petitioner had been in their places of business on September 9, 1980, one day before the crime. Arthur Parr said that the petitioner resembled one of the two men who entered his jewelry store in Fort Smith, Arkansas on September 9, 1980. According to Parr, both men carried motorcycle helmets and they looked at the store’s merchandise for about 15 minutes. Another witness, Walter Carson, told of a similar episode involving two men, traveling on a motorcycle, who came into Paul’s Pawn Shop on September 9, 1980. Carson stated that the two men told him that they were gold buyers. He identified the petitioner as one of these men. He believed that this man’s name was “Anderson” because he had produced a Kansas driver’s license bearing that name. State’s Exhibit 22 represents’ a pawn ticket issued by Carson to Anderson on September 10, 1980, when the latter pawned a ring for $45.00.
Crucial testimony was offered by Chantina Ginn. She testified that sometime after the first of September 1980, she and a man named Rick Anderson traveled from Kansas to Arkansas on a blue Harley-Davidson motorcycle, which she identified as the one photographed in State’s Exhibits 13, 14, and 15. Ginn stated that they went to the Horseshoe Bend camping area on Beaver Lake near Rogers, Arkansas. There, according to Ginn, she and Anderson met a man named Damon Peterson and his apparent wife, Lorili Peterson, who were camped at an adjacent campsite. Ginn testified that the Petersons had a white camper trailer, which they were pulling behind a light blue Cadillac, and that they invited Rick Anderson and her to stay with them in the camper. She further noted that this camper had a cardboard license plate with the words “Lost Tag” handwritten on it. Ginn identified State’s Exhibits 27 and 28 as photographs of the Petersons’ camper and State’s Exhibits 44-46 as photographs of the Cadillac that pulled the camper.
Ginn stated that on or about the third day after the two couples had met, which would have been either the 8th or 9th of September, Rick and Damon left on the motorcycle, taking with them a briefcase with a gun inside it, a change of clothes, some rope, and a woman’s brown wig. She
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testified that when the two men returned several nights later, they had two orange duffle bags of jewelry which they spread out on the floor of the camper and proceeded to divide among the four individuals. Ginn further stated that after the jewelry had been divided, Damon acted like he was talking to someone and said “Get down on the floor, dog.” [That’s from transcript 2588.]
The following day September 11, Anderson and Peterson traded the blue Cadillac for another car, according to Ginn’s testimony. She said that the four later burned their trash at the campsite, including some jewelry tags and watch boxes that had been left on the floor of the camper the night before. The four then left the Horseshoe Bend camping area and went to a storage facility in Fayetteville, Arkansas. Ginn stated that they placed the motorcycle and the camper in a self-storage room before leaving the state en-route to Atlanta. Finally, Ginn identified the petitioner as the man whom she had known as Damon Peterson and with whom she and Rick had camped at Beaver Lake.
Pat Etier also testified that an individual known to her as Damon Peterson was one and the same person as the petitioner, Eugene Perry. Etier stated that she saw Peterson and another man, who was introduced to her as “Rick,” on the afternoon of September 9, 1980 at the Wal-Mart parking lot in Van Burén. She said the two men were riding a Harley-Davidson motorcycle when she saw them. She identified State’s Exhibits 13 and 14 as photographs of that motorcycle, the same photographs which Ginn had identified as being the motorcycle that Anderson and Peter-' son were riding when they left Beaver Lake.
Etier said that she and the two men left the parking lot to get a drink together. She testified that when the man named Peterson climbed into her truck and took off his motorcycle helmet, she noticed that a wig he was wearing came off inside the helmet. She said that this wig was a light brown woman’s wig.
After the three had drunk some beer at Peterson’s and Anderson’s room in the Terry Motel in Fort Smith, Arkansas, Etier left. But, according to her testimony, she later returned to pick up Peterson and took him to her house where they spent the night of September 9, 1980, together. The following morning, September 10, Etier drove Peterson back to the motel. This occurred around 8:00 a.m. The cities of Fort Smith and Van Burén are immediately adjacent to each other, simply across the river, one from the other.
Linda Godwin, another important witness, told the jury that she had seen two men walking briskly across the Cloverleaf Shopping Center parking lot in Van Burén shortly before 6:00 p.m. on September 10, 1980. Godwin testified that as she was leaving her office she met two men who appeared to be in a hurry. She identified the petitioner as one of these two men.
A Mr. Billy Miller testified he saw two men driving a Jeep a few minutes after the robbery. The Jeep apparently belonged to one of the victims.
Grant Cummins supported Chantina Ginn’s testimony which placed the petitioner at the Horseshoe Bend campground. Cummins said that he was camping on Beaver Lake in early September and that he had talked for several hours with two couples. He identified one of the group as the petitioner.
Michael Jeffcoat told the jury that he had sold a used car to a man on September 11, 1980 in Rogers, Arkansas. Jeffcoat identified the petitioner as the man who had traded a blue Cadillac for the car Jeffcoat sold him. Jeffcoat testified that he soon sold the Cadillac to a salvage yard. Police located a blue Cadillac at an auto salvage yard, the same car that was pictured in one of the exhibits that Chantina Ginn identified as the vehicle Peterson drove to Beaver Lake.
The search of the car led to the discovery of a single page of the Van Burén telephone book with Kenneth Staton’s phone number on it, along with a copy of the September 11, 1980 edition of the
Northwest Arkansas Morning Times
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headlining the Staton robbery and murders.
The owner of a Fayetteville self-storage facility, Gifford Heckathom, provided a lease agreement which he said he entered into on September 11, 1980 with a man who signed “Damon Peterson” on the contract. Peterson was with another man according to Heckathorn when he rented space No. 109 for a month. Heckathorn testified that he could not say which man signed the agreement. Authorities later opened this storageroom and discovered a blue Harley-Davidson motorcycle and white camper trailer. The camper had a cardboard license with “Lost Tag” written on it. Ginn identified this motorcycle and camper as the ones that they had stored on the day that Rick Anderson, Damon Peterson, Lorili Peterson and she had left the state.
Items found inside the camper underscore the link between the camper and the robbery. From the camper the police obtained the following pieces of physical evidence which were introduced at the trial: a gold coin like those taken from the Sta-ton jewelry store; a buffalo nickel with an identifiable nick on its face and one that Ruth Staton testified she had kept in the store, State’s Exhibit 21; a jewelry price tag containing the handwriting of Karen Staton, State’s Exhibit 35; a brown plastic ring plug like those used at Staton’s to fill up the space in a display case after a ring is sold, State’s Exhibit 33; an orange blossom ring filler, State’s Exhibit 37; a book of matches from the restaurant at the Terry Motel in Fort Smith, State’s Exhibit 30; a book of matches from the Horseshoe Bend Marina in Rogers, Arkansas, State’s Exhibit 31.
Larry Gray of the Corps of Engineers was the Park Technician at Beaver Lake in 1980. He testified that a user permit was issued by the Corps to a Damon Peterson on September 6, 1980 and again on September 8, 1980. These permits, State’s Exhibits 49 and 50, indicate that Damon Peterson was assigned campsite 2-10 on each occasion. An investigation of the area around this particular ■ campsite turned up several additional pieces of physical evidence, further linking the campers to the robbery. Police recovered at campsite 2-9, the one adjacent to the one assigned to Peterson, a jewelry box, a ring box, a watch band display holder, and some rope. A crime lab analyst testified that burned remains of a rope found at the campsite possessed characteristics similar to those of the rope which was removed from the hands and legs of the victims.
Thus, to review, the evidence includes numerous pieces of tangible evidence connecting the jewelry store robbery-murder to the camper, the blue Cadillac, and to the man named Damon Peterson, who had possessed both the camper and the Cadillac in northwest Arkansas in early September 1980. The testimony of Chantina Ginn and Michael Jeffcoat, plus the lease agreement from the Fayetteville self-storage facility, also show that someone named Damon Peterson was in charge of those vehicles at the times in question. Ginn and Etier, both of whom spent a considerable number of hours in very proximate, even intimate, circumstances with the man they called Damon Peterson, identified the petitioner, Eugene Wallace Perry, as being one and the same as Damon Peterson.
The final significant evidence in this case consists of two rings which the petitioner had in his possession when he was arrested in Florida. I believe that was on September 23, 1980. Those two rings, introduced as State’s Exhibits 17 and 18, were identified by Ruth Staton and Karen Staton. Ruth Staton, the wife of Kenneth, testified that State’s Exhibit 17 is identical to her husband’s wedding band. Ruth Staton’s daughter, Karen, also stated that this ring “looks like my father’s wedding band.” Karen Staton further testified that she remembered State’s Exhibit 18, a man’s yellow cluster diamond ring, from her having worked with the inventory at the family store. Thus, the two rings found in petitioner’s possession emphatically implicate him in this crime. State’s Exhibits 17 and 18, more than other items in evidence, underscore and tend to corroborate Etier’s and Ginn’s testimony that Damon Peterson
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is the same individual as Eugene Wallace Perry.
The defendant relied upon an alibi defense. Seven of his witnesses testified in person at the trial. They were: David Redding, Frank King, Richard Hays, Tonya Perry, Dawn Perry, Wallace Perry and Eulene Perry. The four remaining defense witnesses testified by deposition — I think one on the basis of written interrogatories — and they were: Greg Bagley, Alicia Brown, Linda Ashworth, and Glenda Perry.
A brief synopsis of their testimony will be useful. David Redding placed Perry in Alabama on August 30, 1980. Frank King saw Perry on September 1, 1980, and believes that Perry traded his pop-up camper on that day. Richard Hays stated that Perry was in Alabama on September 1, 1980. Hays rented a camper to a man whose picture is reflected in State’s Exhibit 25.
Tonya Perry, defendant’s younger daughter, stated that her father was in Alabama on Labor Day, September 1, 1980, and that he returned one week later, September 8th and stayed with them two days before leaving on the 10th. Dawn Perry essentially gave the same testimony as Tonya. She also testified that her father took her shopping on September 9 for some clothes. Wallace Perry — that is, the father of the defendant — said petitioner arrived at his house on the night of September 10 at about 10:00 p.m. He said that Perry spent the night of the 10th and stayed most of the 11th with his parents. Eulene Perry, the mother of the defendant, essentially corroborated Wallace Perry’s testimony. The witnesses that testified by deposition testified as follows:
■Greg Bagley stated that he worked for the Red Hanger Shop in Oxford at a mall. This is Oxford, Alabama. He said that someone made payment on a lay-away account in Perry’s name on September 11, ■1980. He did not see anyone make it and said that it could have been received by mail. Alicia Brown, a teen-aged clerk at a clothing store in Oxford testified that Perry and his daughter, Dawn, came in shopping. She could only pinpoint that it was between the last week of August and the first two weeks of September. Linda Ash-worth testified by written interrogatories that she managed the store where Brown worked. She also saw a man she identified as the defendant but would only say that he was in the store sométime during the “back to school” sale. We will discuss the testimony of Glenda Perry, the ex-wife of the defendant, later. I think it can be fairly said from an examination of the record that the evidence of the defendant’s guilt was clear and strong and, if fully credited by the jury, as it obviously was, could be considered overwhelming. The case demonstrates the oft-stated proposition that circumstantial evidence can often be more damning and convincing than some eyewitness .testimony. On the other hand, a careful and meticulous review of the alibi evidence introduced on behalf of the defendant reveals that most of it is weak, uncertain, lacking in specificity, and not inconsistent with the State’s case. Only the immediate family members — that is, the defendant’s daughters, his mother and his ex-wife — provided any factual testimony that might be said to be completely inconsistent with the possibility of the petitioner’s guilt. The Court will discuss this later in connection with the confrontation issue that has been raised by the defendant. So, that’s a brief review of the evidence that was adduced during the course of the trial.
As further background for an understanding of the issues raised by the 1990 supplemental petition it is important to note how the Court dealt with the second issue currently being raised (Issue B
Supra)
since that issue was also raised in the first habeas proceeding. The Court resolved that issue from the bench. The discussion thereof found at pages 181-198 of the transcript reads as follows:
THE COURT: We will take up the compulsory process issue and then have a short break for lunch and then proceed with the other issues.
One of the most troubling issues raised by the petitioner concerns the state trial court’s refusal to grant the petitioner com
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pulsory process for a number of out-of-state witnesses whom petitioner sought to have testify at the trial. Prior to the trial, petitioner filed a motion for production of witnesses from outside the state. Therein petitioner’s defense counsel requested that the Court order the prosecutor, pursuant to his power under Arkansas Statute 43-2006, to subpoena certain witnesses to appear on petitioner’s behalf at the trial. Critically, counsel indicated to the trial court that only the prosecuting attorney held the power to bring in out-of-state witnesses pursuant to the Arkansas statute. Petitioner’s list of requested witnesses contained 17 names. Seven of these prospective witnesses were in the nature of alibi witnesses and six were character witnesses.
The defense counsel for petitioner generally argued that it was a constitutional right to have these witnesses appear at the trial in person rather than by means of depositions. As a fallback position, counsel requested that the Court require the State to pay the cost of deposing these individuals on videotape.
The trial judge, after hearing oral argument on the motion, ruled that the Court would not require the prosecutor to subpoena any of the defendant’s witnesses. The Court further held that the State was not going to pay any expenses, either for attendance or depositions, for petitioner’s character witnesses. But the Court did propose a choice to the defendant: the State would pay to have the remaining 11 witnesses deposed in Alabama, or the State would offer to reimburse four defense witnesses for travel expenses to the trial if these individuals were willing to come. But under no circumstances was the State going to have to subpoena anyone to appear on the petitioner’s behalf.
As stated in the transcript, the Court stated: “As far as the character witnesses are concerned, the Court is not going to authorize any type of expenditures for character witnesses. If he wants character witnesses and can get them here, then fíne. If he can’t, I’m sorry. He can’t. I’m not going to require the State to use its subpoena power to require the attendance of any of the witnesses. I think I am going a long way in an effort to try to be as fair as I can in a situation that’s presented. And I’m just saying to you that you can take depositions of these 11 witnesses, or I will see that the county pays the expenses of any four witnesses that will attend. That’s as far as I am prepared to go because I think I’m going further than I’m required to go by the law anyway.”
Now, although it is quite understandable, given that the defense attorney had incorrectly stated the Arkansas law at the hearing, it is nevertheless clear that the trial judge labored under the mistaken belief that the prosecutor alone could attempt' to secure out-of-state witnesses under the Arkansas law. The Court indicated its belief that the subpoena power belonged to the State only, and that if the prosecutor declined to produce the defense witnesses, the Court could not order the prosecutor to do so.
As the Court stated:
“Well, I’m hesitant about using the State’s subpoena power to bring in defense witnesses. The best I can tell you on that is that unfortunately it’s the responsibility the defendant has to get his witnesses here and the subpoena power, is not available except through the State.”
It should also be noted that the prosecutor did nothing to disabuse the Court of this erroneous view of the law.
The trial court obviously did not realize that the Court, not the prosecutor, could order the production of the out-of-state witnesses. Under Arkansas law it is clear that the defendant, as well as the prosecutor, may petition the Court to secure the attendance of material witnesses.
Mackey v. State,
279 Ark. 307 , [ 651 S.W.2d 82 ], 1983. See also
Hall,
33 Ark Law Review 122, pages 138 and 139.
Arkansas adopted the Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases back in 1935. Section 43-2001 is that statute. Similar acts have been adopted by virtually every state in the union in order to facili
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tate the interstate compulsory process.
Barber v. Page,
[ 390 U.S. 719 ] 88 Supreme Court 1318 [ 20 L.Ed.2d 255 ], a 1968 case, note 4. The Court notes that Alabama, the state where the witnesses at issue here were residing at the time of the petitioner’s trial, was among the states that had adopted the reciprocal statutes whereby that state agrees to produce witnesses for a court in another state which has likewise adopted the uniform act and would, therefore, produce witnesses for criminal trials in Alabama courts.
The Act allows the prosecutor or the defendant to seek an order from the Court requiring the officials in a cooperating state which has adopted the uniform act to command the appearance of the particular witnesses at trial in Arkansas, 43-2006. That reads as follows:
“If a person in any state, which by its laws has made a provision for commanding persons within its borders to attend and testify in criminal prosecutions or proceedings or grand jury or prosecuting attorney’s investigations commenced or about to commence, in this state, is a material witness in a prosecution or proceeding pending in a court of record in this state, or in a grand jury or in a prosecuting attorney’s investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witnesses be taken into immediate custody and delivered to the officer — to an officer of this state to assure its attendance in this state. This certificate shall be presented to a judge in the court of record in the county in which the witness is found.
“If the witness summhned to attend and testify in this state” — I’ll start that again. “If the witness is summoned to attend and testify in this state, he shall be tendered the sum of 12 cents a mile for each mile by the ordinary traveled route or the actual expense of travel, lodging and meals to and from the court where the prosecution or proceeding is pending or the grand jury or prosecuting attorney’s investigation is being conducted and $25.00 for each day he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate unless otherwise ordered by the Court. If such a witness, after coming to the state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.” The Arkansas Supreme Court has recognized that the defendant in a capital case is entitled to use this statute to secure the attendance of as many witnesses as the trial court deems material. See
Mackey
at page 314 [ 651 S.W.2d 82 ]. Thus, there is no question that Arkansas law provided a mechanism for the petitioner to request the Court to order the attendance of the defendant’s witnesses. It is equally clear that this authority did not rest exclusively with the prosecutor. To the extent that the trial judge believed that this was solely the province of the prosecutor, the Court erred or was misled by counsel.
However, it is important to note that the power of the Court to issue a certificate requiring an out-of-state witness to attend the Arkansas trial is discretionary.
Mackey
at page 314 [ 651 S.W.2d 82 ]. And, of course, Section 43-2006 does not state the Court shall issue the certificate; it says the Court may.
The Arkansas Supreme Court has so held in
Mackey
at page 314 [ 651 S.W.2d 82 ] where it states:
“It is true that Arkansas Stats. Annotated 43-2001 provides for unlimited out-of-state witnesses in capital felony cases. However, this statute must be read in conjunction with 43-2006 which provides that such witnesses must be material. We have interpreted these statutes by declaring such right not to be absolute but, rather, resting within the sound discretion of the trial judge. Citing
Wright v. State
[ 267 Ark. 264 , 590 S.W.2d 15 (1979) ]. We have
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also held that the right to have out-of-state witnesses in capital felony cases means material witnesses.
Henry v. State
[ 278 Ark. 478 , 647 S.W.2d 419 (1983) ]. Under the circumstances contained in this case, we do not find this error to be prejudicial.”
So, although the Court was unaware it had any authority to act under Section 43-2006, the result was the same as if the trial court had knowingly exercised its discretion by deciding that it would not, under the facts and circumstances of the case, issue a certificate demanding the Alabama authorities require the attendance of defendant’s witnesses. But it must be acknowledged that the Court did not knowingly exercise its discretion, believing that it had no discretion in the matter.
Is it possible to tell from the record what decision the trial court would have made had it been aware of its discretionary authority? I think not. During the hearing here last month the Court expressed certain views concerning the inferences that might be drawn from the circuit judge’s remarks. The Court was speculating on whether there was some clear indication of how the judge would have ruled, had he known that he had the power to order the subpoena of out-of-state witnesses. The Court has re-read in its entirety the relevant portions of the transcript and is now convinced that one cannot with any certainty conclude which way the Court would have ruled. The best guess is he probably would have ruled essentially as he did since he was contemplating or attempting to balance the defendant’s needs against the cost to the county.
However, even if we treat the trial judge’s decision as a sound exercise of his discretion to deny the compulsory process, we are still left with the question whether this decision may have violated petitioner’s constitutional rights. The Sixth Amendment expressly guarantees the right of a criminal defendant to “compulsory process for obtaining witnesses in his favor.” That’s the United States Constitution, Amendment Six. The Supreme Court has held in
Washington v. Texas,
[ 388 U.S. 14 ,] 87 Supreme Court 1920 [ 18 L.Ed.2d 1019 ], a 1967 case, that the Sixth Amendment’s right to compulsory process extends through the Fourteenth Amendment to the accused in a state criminal proceeding. The right of the defendant “to have compulsory process for obtaining witnesses in his favor” is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. [ 388 U.S. at page 16 ,] 87 Supreme Court at page 1922.
Drawing on previous Sixth Amendment cases, the Court held that the right to present one’s own witnesses lay at the core of the right to a defense and is as important as the right to confront those witnesses who are adverse to the defendant. As stated [ 388 U.S. at p. 18 , 87 S.Ct.] at page 1923:
“The right to offer testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for purposes of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”
The Court further noted that this specific right of compulsory process has been included in the Bill of Rights because the drafters of the Constitution were bothered by the common law rule that could prevent those accused of treason or felonies from introducing any witnesses on their own behalf. [ 388 U.S. at page 18 , 87 S.Ct.] At page 1923. The Court stated its belief that truth is more attainable when the jury hears from all the witnesses with knowledge of the issues in the case. [ 388 U.S. at page 20 , 87 S.Ct.] At page 1924. Thus, the Court held the petitioner had been deprived of his right to compulsory process for obtaining witnesses in his favor. “The State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been rel
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evant and material to the defense.” [ 388 U.S. at page 22 , 87 S.Ct. at] Page 1925 .
The Supreme Court of the United States has recently reaffirmed its holding of
Washington v. Texas
in the case of
California v. Trombetta,
[ 467 U.S. 479 ,] 104 Supreme Court 2528 [ 81 L.Ed.2d 413 ], a 1984 case. In its recent decision the Court reiterated the criminal defendant’s constitutional right to “a meaningful opportunity to present a complete defense.” [ 467 U.S. at page 486 , 104 S.Ct. at] Page 2533 . Likewise, the Eighth Circuit has cited the
Washington
case for the right of the accused to compulsory process. See
Thomas v. Wyrick,
687 F.2d 235 at page 239, a 1982 case, as has the Eleventh Circuit,
United States v. Garmany,
762 F.2d 929, 933 , a 1985 case. Clearly, then, the Sixth Amendment affords one the right to call his own witness to trial, and that right cannot be doubted.
These cases would suggest that when the trial court in this case denied Mr. Perry the chance to subpoena certain witnesses in his defense, it denied him his constitutional rights under the Sixth Amendment. Recent Supreme Court cases, however, indicate that something “more than mere absence of testimony was necessary to establish a violation of the right.”
United States v. Valenzuela-Bernal,
[ 458 U.S. 858 ,] 102 Supreme Court 3440, [ 73 L.Ed.2d 1193 ], a 1982 case. The petitioner must not only show that he was deprived of certain witnesses’ live testimony, but that such testimony was material and that its absence “fatally infected the trial.” And I quote from the Valenzuela case:
“The only recent decision of this Court dealing with the right to compulsory process guaranteed by the Sixth Amendment suggests that more than the mere absence of testimony is necessary to establish a violation of the right. See
Washington v. Texas.
Indeed, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him compulsory process for obtaining witnesses in his favor. U.S. Constitution, Amendment Six. In
Washington ,
this Court found a violation of this Clause of the Sixth Amendment when the defendant was arbitrarily deprived of testimony that would have been relevant and material, and vital to his defense. This language suggests that respondent cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation of the passengers deprived him of their testimony. He must at least find some plausible showing of how their testimony would have been both material and favorable to his defense.
“Having borrowed much of our reasoning with respect to the Compulsory Process Clause of the Sixth Amendment from cases involving the Due Process Clause of the Fifth Amendment, we have little difficulty holding that at least the same materiality requirement obtains with respect to a due process claim. Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ Citing
Lisenba v. California.
In another setting, we recognized that Jencks Act violations, wherein the Government withholds evidence required by statute to be disclosed, rise to the level of due process violations only when they so infect the fairness of the trial as to make it ‘more a spectacle or trial by ordeal than a disciplined contest.’ Citing
United States v. Augenblick.
Such an absence of fairness is not made out by the Government’s deportation of the witnesses in this case unless there is some explanation of how their testimony would have been favorable and material.”
The Supreme Court has equated the right to compulsory process and the right to effective assistance of counsel in that both are constitutionally protected means to the end of a fair trial. As such, they are not “recognized for their own sake” but because of their effect upon the trial. See
United States v. Cronic,
[ 466 U.S. 648 at page 657,] 104 Supreme Court 2039 at
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page 2046, [ 80 L.Ed.2d 657 ], a 1984 case. In short, therefore, unless the deprivation of compulsory process in the instant case actually affected the quality of the trial, it will not constitute a violation of the petitioner’s Sixth Amendment rights. To quote from Cronic:
“Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” [ 466 U.S. at page 657 , 104 S.Ct. at] Page 2046 .
In thus requiring that some material deprivation be the basis for a finding that the compulsory process clause of the constitution is violated, the Court has in effect applied a prejudice standard to the issue which is like that of the
Strickland
standard used in the context of the Sixth Amendment right to counsel. See
McNeil v. Cuyler,
782 F.2d 443 , Third Circuit, 1986. The result is that this Court must review the deprivation of the compulsory process against the backdrop of all the evidence and circumstances of the case. After having completed such a review of the voluminous record in this case, the Court concludes that the absence of live testimony from the four witnesses whose testimony is offered by deposition — namely, Greg Bagley, Aheia Brown, Linda Ash-craft, and Glenda Perry — was not prejudicial to the petitioner in the face of the substantial, indeed overwhelming, evidence of his guilt. The deposition testimony of three of these individuals was, indeed, not inconsistent with the prosecution’s theory of the petitioner’s guilt. These three individuals placed the petitioner in the Oxford, Alabama area sometime in late August or early September. Because these persons did not specifically fix the petitioner’s presence at the time of the crime, it is impossible to infer that the jury disregarded their depositions entirely. Their credibility was not put in question in a significant degree. The jury could have easily found that the witnesses were truthful, that the petitioner was in Alabama in late August, but that he had come to Arkansas by September 3, 1980, the first date that any government witness placed the petitioner in the Staton Jewelry Store.
It is true that the testimony of the fourth alibi witness who did not appear live, if credited, cannot be reconciled with the jury’s finding of guilt. Glenda Perry testified that her ex-husband, the petitioner, visited her and her two daughters— also the daughters of Perry — on September 1, 1980, and that he returned “about a week later” and stayed for a couple or three days. Accepting this testimony, Perry would have been in Alabama from September 8 through September 10, which is at odds with the testimony of numerous government witnesses who said they saw the petitioner frequently in Northwest Arkansas during this time. However, the Court notes that Glenda Perry’s testimony was not as strong as that given by Perry’s own two daughters who essentially corroborated the alibi defense and who did testify in person at the trial. In addition, the defense called petitioner’s parents who also testified at the trial that Perry was in Alabama through the morning of September 11, 1980. Had the jury been inclined to give credence to this version of the petitioner’s whereabouts at the time of the crime, there was ample live testimony before them which supported that version. The jury obviously unanimously rejected this alibi testimony.
The Court does not find it even remotely likely that the physical presence of the one deposition witness whose account was inconsistent with the verdict — namely, that of Glenda Perry — would have lent any more credibility to the alibi defense. This is particularly so in light of the fact that the four witnesses who did appear in person testified with more certainty about their recollections than did Glenda Perry. Thus, the trial court’s refusal to allow the petitioner to avail himself of the process set forth in Section 43-2006 of the Arkansas Statutes did not, under the peculiar facts and circumstances of this case, violate petitioner’s Sixth Amendment right to compulsory process. He presented the testimony of the witnesses. And for the reasons stated, the fact that certain of the witnesses testified by deposition did not prejudice him. He did in fact present the
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favorable and material evidence available to him from these witnesses. In effect, he has been denied no material evidence and there is nothing to suggest the result would have been different if the deposed witnesses had testified in the courtroom in person.
The Court might add that although the Supreme Court’s cases mandate that there can be no constitutional violation unless the denial of compulsory process concerned material evidence, even if the Court were today finding a constitutional violation, the law of this Circuit requires the Court to further determine if the violation was harmless error.
Thomas v. Wyrick,
687 F.2d [235,] 241, a 1982 case. In
Thomas ,
the Eighth Circuit refused to pass on the constitutionality of certain Missouri criminal discovery rules which had been used to prohibit the defendant from calling character witnesses to testify at trial because these witnesses had not been previously disclosed to the prosecutor.
[Id.
at] Page 236 . But the Eighth Circuit held that it made no difference whether the Missouri law had worked to violate the defendant’s constitutional right to compulsory process. It stated:
“Nevertheless, even if the trial court’s exclusion of character witnesses were deemed to be constitutional error, it would not affect the result in this ease. If there were constitutional error, it would be harmless beyond a reasonable doubt.”
[Id.
at] Page 241 .
Other circuits have adopted the automatic reversal or per se rule where constitutional violations of this nature are involved. The Eighth Circuit, however, has refused to follow those courts.
Peeler v. Wyrick,
734 F.2d, 378 , a 1984 case. Peeler involved a habeas petitioner’s claim that the government had intimidated one of his witnesses and thereby prevented him from testifying. The Eighth Circuit relied upon the Supreme Court’s opinion in
United States v. Hasting,
[ 459 U.S. 1032 ,] 103 Supreme Court 440 [, 74 L.Ed.2d 598 ] a 1983 case, which addressed the applicability of harmless error doctrine in cases of constitutional violations, to conclude that “any error which may have occurred was harmless error due to the overwhelming evidence of guilt.” The court noted that in
Hasting
the Supreme Court stated:
“That it is the duty of reviewing courts to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations. The Court acknowledged that certain errors may involve rights so basic to a fair trial that their infraction’can never be deemed harmless; however, the Court’s examples only included the right to counsel, an impartial judge, and coerced confession. Thus, it seems clear that the Court in
Hasting
directs this court to apply the harmless error rule in cases such as this.”
[Id.
at] Page 381 .
The Court here concludes that the evidence from the four deposition witnesses was not sufficiently material to implicate the compulsory process clause of the Sixth Amendment, and, alternatively, that even assuming that the denial of compulsory process was unconstitutional, the evidence of petitioner’s guilt is such that any possible violation would be harmless error.
As I said, that’s strictly under the peculiar facts and circumstances of this case as we have detailed them. Ordinarily, the refusal to permit a defendant in a case of this type to subpoena witnesses from out of state would be error that would require the granting of the petition. It is only the unusual circumstances here that precludes that possibility.
NEWLY DISCOVERED EVIDENCE CLAIM
On May 8, 1989, Marion Pruett wrote a letter to Mr. Brian Willett, an attorney in Albuquerque, New Mexico. In that letter, (See petitioner’s Exhibit 11) he made the following statements:
Look Bro, about the Van Burén deal, “I didn’t want anyone else to know about it
but you
”!! I was just thinking out loud to
you,
because my conscious has been troubling me a little, but that doesn’t mean I’m going to confess and let this guy here go free, that may sound mean, but hell Bro, if I confess then I know the D.A. in Van
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Burén mil end up giving me two more Death Sentences, plus I’ll even face another one in New Mexico. See Bro, Michelle was also involved in that Van burén deal. She, me, Sundance, Pat, (Sundance’s ole Lady), and Sportster Rick. Me and Sportster Rick are the two who went in the jewelry store, (Staton’s), on September 10th, 1980, and did the robbery, and it was I who shot the old man and his daughter, (around 23 years old). Michelle, Pat and Sundance stayed back at a Motel (Terry’s), in Fort Smith, then me and Michelle drove back to Alberqe (sic) with half of the jewelry, (over $75,000 dollars worth).
Around September 25th Sportster Rick, the guy here on death row, and Sundance were down in Jacksonville, Fla, (Rick and Sundance has went there to sale.(sic) their share of the jewelry to a guy named “Gen Perry”, (who is the guy now here on death row). While there, the police busted in on them, but Sundance got away, and called me, so I sent him the bucks to come to Albuqe.” (sic) Now Rick and the guy here, (Gen Perry), got busted in the Motel room in Fla., so the police in Van Burén said Rick and Gen Perry was the two who did the robbery and murders.
Sundances Ole Lady Pat, got mad because Sundance left her in Ft. Smith after the robbery, and he took off with another woman, so she, (Pat), went to the police and said Sundance was involved in the crime. I made Sundance go with me to Van Burén looking for her but we couldn’t find her, but Sundance knew one of the police officer’s on the Van Burén Force and he told Sundance everything the police knew about the crime, sundanee paid the Policeman to tell Rick (Rick was in the Van Burén Jail), that if he didn’t say it was him and Gen Perry who did the crime, “then I, (me), would go kill his girl-friend and sister in Kansas. Rick was really seared of me, so he did just like Sundance told him too. About three months later (after I seen Rick was going to do just like he was told), I went ahead and killed Sun-dance (I made Michelle help me), and I did away with his body there in Albuqe!! (sic) Now Sundance and Gen Perry even look alot alike, but it wasn’t Gen Perry who did the crime, (he was just going to buy the hot jewelry).
Now, what I’m going to do is just wait and see if this Gen Perry guy does get a new trial from the U.S. Supreme Court, (it’ll take about another year), and if he does then I may, (or may not), be a witness for him, and just confess in front of the jury. Hell I can even prove it all, but if he doesn’t get a new trial, then I’ll handle that when the time comes, but for now I’m not going to open my mouth, and I don’t want you to mention this to anyone. When I feel the time is right, then I’ll have you get in touch with this Gen Perry guys attorney, but not instill (sic) I feel the time is right, okay??
Apparently this letter was a follow-up to one written by Mr. Pruett to Willett on April 17,1989 — the first time Pruett mentioned the matter to Willett. Petitioner’s Exhibit 10 is a.copy of the April 17, letter. The pertinent part reads as follows:
Oh, I also need to run something “Big” by you that no one knows about but me, and when I tell the Newspapers about it, “all shit will hit the fan, and my name will be back in every Newspaper across America again.” I did a Jewelry Store Robbery in Van Burén, Arkansas back in 1980, (around the end of the easy) with another guy. Anyway, some shit came down and I killed the Store Owner, (a man), and his daughter, (around 25), during the robbery. A few months later the fool who helped me during the robbery got busted down in Fla. on some dumb shit, and he had part of the Jewelry still on him. To make a Long Story Short, “he got a Life Sentence out of the robbery, and the poor ass-hole who was in Fla. and with him at the time he got busted, “ended-up getting charged on the Robbery and Murders too, and he got the Death Sentence.
Now Bro, that guy got the Death Sentence for a crime
I truely did,
and during the last year that I’ve been here it really troubles me to see his face everytime I go on the yard with him. The Federal 8th Circuit Court of Appeals just refused His Appeal, and now he only has the United States Court of Appeals left, and its a 99%
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chance they’ll also turn him down, and then he’ll be Executed.
Shit Bro, this is really playing heavy on my conscious.
(sic) It’s bad enough that I’ve cost this guy 9 years of his life, plus I have to look at him everyday now, but here he would also be executed during the next year because of me. I’ve done make my mind up Bro, that if the U.S. Supreme Court refuses his appeal too, then I’m going to come forward and tell them Exactly what happened, “even if it means I get another Death Sentence over it.” Hell, the guy that was with me already has a Life Sentence, so it can’t hurt him by me telling the truth now. Most likely the guy here on death-row will want to Kill Me after he fines (sic) out and I sure can’t blame him. “What do
you
think I should do Bro??” Man, I can’t just allow this innocent guy die over what I did”!! Give me some advice Bro??
1
On July 7, 1989, Mr. Perry’s habeas attorney, Mr. Sam Heuer, conducted a recorded interview of Mr. Willett concerning information allegedly provided to him by Mr. Pruett. The pertinent portions of the transcript are quoted as follows:
WILLETT: You might remind me, that’s an interesting issue as far as ._and certainly you would be interested in coordinating with the New Mexico enforcement, perhaps because of the aspect that would add credibility to this, were there to be — well, just real quick, like the silence 22 that he had is supposedly with Sundance’s body and along with a single shot 12 gauge shotgun that was used to kill Sundance with. Some more metal, the three logging chains, I thought a metal detector would be as efficient as anything at that rate. That’s what I told Joe—
HEUER: Is he not in the — is his body not in the river?
WILLETT: Yes, it is. The Rio Grande is funny though. It’s dry sometimes out of the year.
HEUER: Yeah.
WILLETT: This is in the deepest part of it and it’s sandy, you know. My feeling is it would be down in the sand a little bit by now.
******
HEUER: Now you’ve just gone over, apparently, in the jewelry store there was a Coke can and a Dr. Pepper can.
WILLETT: Uh-huh.
HEUER: Pruett now thinks that the match on the finger prints would be his, and as far as the Dr. Pepper can goes.
WILLETT: Most definitely, but just the fact that he’s able to place a Dr. Pepper can in a particular location at the scene which—
HEUER: On the case with the—
WILLETT: Cash Register. He describes three horseshoe-type display cases in the store. One of them apparently has the cash register on it and the coke can was left on the counter with the cash register of the three horse-shoe display cases in the^ — -in the Statton’s at the time. Okay, he and Sportster Rick went on — Rick Anderson—
HEUER: Uh-huh.
WILLETT: —went on Rick’s Sportster, they parked it at the Safeway across the street from Statton’s. They parked it, apparently there was a bank right next to the Safeway and it was parked more towards the bank side of the Safeway by some trees there. They got the Dr. Pepper and Coca-cola that soft drink machine out in front of the Safeway. And those were the cans that were taken across the street into Statton’s. That’s where they were obtained, from the machine out front of the
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Safeway, near where the Sportster was parked. Okay, silenced 22, I think that’s in the case, is that there was a silenced 22 used. So, weighing credibility, I mean, as far as that being a matter of record that anybody could look up, I suppose. The 22 was wrapped also in a table cloth that was taken from a table back in the work area in the back of the shop. The tablecloth has sort of a flower pattern to it, and the table cloth was used to wrap the silence 22 in to make additionally sure that the report from the gun not alert anybody outside the door I have another point after that, but I’m going to stay with this point because there should be three holes in the quilt, he called it, used as a silencer around the 22. And just right on into it here, the three holes would be because as he described it, the silence 22, not only with the silencer on it but also with the tablecloth from the table in the back of the shop where the coffee and so forth was as he describe it, initially he shot her first in the temple. I got the impression it was the left temple, but anyway, in the temple. After that, he shot the man, Mr. Station I believe it was, I’m looking at the case, anyway, right above the eyebrow, and as near as I was sort of more careful with him on this, again, the left eyebrow, I believe it was. As far as the initial two shots, one in each individual, and those were at close range. Certainly lab reports and so forth as far as forensics might show that the— those two initial wounds and entries were at quite close range. After that, he backed up some three to five feet he said and shot once at them each, more or less in the center of the forehead. Her first and then the man, Mr. Station. And he moved, after the initial two shots, one in each of them, for the second two shots from the three to five foot range, he moved the table cloth after each shot so there would be more or less three holes there should be in that table cloth.
HEUER: Why wouldn’t there be four?
WILLETT: Because the first two shots, one in her left temple and one in the— Mr. — over Mr. Stratton’s right eyebrow were done without moving the table cloth to a new location on the barrel.
HEUER: All right.
WILLETT: Okay. Okay, as to details as far as the young lady. He said her dress was unusual. He says for one thing she had big tits. He says the man was a real short little guy. She had light brown hair, almost blonde. And he said her color scheme was unusual to him, something about the way he thought the color sort of clashed. He said she had on orange high-heels and sort of a blue slip. And something about, perhaps the skirt and this stood out in his mind anyway, sort of that the colors clashed he thought. Okay, once again, her in temple first, then in the middle of the forehead. Him above left eyebrow, then in middle of forehead. I described those as far as the entry wounds. Three holes in the quilt used as a silencer, okay. Pruett said he took the man’s wedding band and he also had a red ring, like a sapphire or a ruby that was taken also. He took her diamond ring, but left the watch and necklace because he said those — the watch and necklace were kind of cheaper, you know, less valuable. He said he took a little sack of loose diamonds from the safe. They were in a little pouch and that was from the smaller of the two safes that were in there.
HEUER: Did he say how he got into the safe?
WILLETT: He said they were open. I asked that too, you know, I didn’t know if he was a safe cracker too or something. But he said they were open since it was during business hours.
Okay, this is one that got me. I’m sort of fancy myself as half a mechanic, but I’ll get into it. Okay, they took her Jeep. It was a green — he was trying to explain the color. Not a lime green, closer to an army green, he said. It had a white canvass top he thought. He recalled, he said black, and I said Gee, you — I wrote white a while ago and he says that’s right. He says no, it was white. But he said the starter was defective on it. It just really whined and he didn’t know if it would engage or not. He said the starter was really funny on it. He said his — like Chrysler products, they’ve got the double reduction and make
*1518
their own special noises, but this one, he said, he thought was really defective because it made a lot of noise and so forth when he started it up.
He said he used the same style of wig, sort of a sandy blonde color, as he used in the Mississippi robberies. Okay, we do the Coke can by cash — I mean Dr. Pepper can by cash register, three horseshoe show cases, Dr. Pepper can left on counter by cash register.
Oh, this is very good. There were three small diamonds in the man’s wedding band, he recalled. He had on, and then just sort of as a quick aside, it’s obvious he’s bright enough to realize that these are details that someone who was not actually on the scene might not know. The dress. The man was dressed in blue slacks, a short sleeve shirt, and was on crutches. The short sleeve shirt he wasn’t quite so clear about. It’s been several years. He thought it was light colored with blue stripes. Okay. The starter hung bad, whined real bad on the Suzuki Jeep. Her Suzuki Jeep, when they got into it, was sitting by the light post out front when they got into it. He left it in front of the laundromat for an apartment complex that was about two miles from the Cloverleaf Shopping Center. The 22 gun that was used in this robbery/murder, was his — in the Rio Grande where Sundance was put along with a single shot 12 gauge shotgun that killed Sundance.
Here’s another one. Sportster Rick, Rick Anderson, had Harley wings on one arm. He couldn’t remember exactly if it was on the shoulder or upper arm, but he said on one arm. I asked him a little bit more about it, something I didn’t write down here. I said, well, how did Rick act when this was happening? The way it came up, I asked him, I said, how did you keep people from coming in while this was going on since it was during business hours. And he said Rick locked the door. Something about he had some trouble locking the door and so forth. He said mostly he was pretty quiet and did what he was told and he said that’s the only reason he didn’t end up on the floor there too.
HEUER: Did he not get along with Rick, Sportster Rick?
WILLETT: He didn’t even know Sportster Rick. He was real annoyed when he got — when they were planning this thing. Apparently, Sundance is the one that cased the deal and set it up. At the Terry Motel there was a room there. Pruett and his wife, Michelle, Pruett, who of course, was a federally protected witness at this time under the name of Charles Sonny Pearson. I call him Sonny.
HEUER: Uh-huh.
WILLETT: His wife would be then Michelle Pearson. He and Michelle showed up at the Terry Motel and Sundance had Sportster Rick there and Pruett said he was very annoyed about that. The security and so forth on it. Someone else being in it and knowing about it and so forth. Initially, he said he was very upset about Sportster Rick being in on it. But accepted it after a point apparently and because they did sort of cruise and ease the joint, he and Sportster on — on Rick Anderson’s sportster, which was also used to come to near the scene when the crime was committed. Parked, as I said before, at the Safeway over by the bank near some trees. He — and something else I didn’t write down. When they took the Jeep, he took Sportster Rick back over to the Safeway parking lot and he turned in and he let Sportster Rick out, just sort of at the entrance to it. And then Sportster Rick went back to his sportster. And whereupon, Pruett stayed by himself in the Jeep. Another thing he said, when he got out of the — out of the Jeep at the apartment complex, in front of the laundromat at the apartment complex, he said a black lady hollered at him. I don’t know why, I guess he didn’t either, but he said he just kept moving. He didn’t stop for that. Well, I’m out of my written notes. I’m just going to what I recall that was details.
HEUER: Has he told you how — tell me again how the transaction occurs between him and Perry that caused Perry’s car to end up with some of this property.
*1519
WILLETT: Sundance had purchased a new Buick, apparently under the alias he was using, Damon—
HEUER:
WILLETT: Okay, or Malentino, apparently, but Peterson, I think, you know, on this could be checked as to how that car was registered. But under that alias, I d know from the cases that that was the name the warrant was under, was Damon Peterson or Malentino, when there was a warrant on it initially. Sundance, Damon Peterson—
HEUER: Uh-huh.
WILLETT: — had given this new Buick to Gene Perry. I don’t know why exactly, but it was a new Buick. And so apparently, when they find Gene Perry in the new Buick, perhaps by then they had enough leads that the license plate as NCIC’d on the Buick or something, from what Pruett says, Perry wanted to keep that new Buick. He sort of says dumb shit, but then you’d have to know Pruett, I guess. Anyway, he says Gene Perry owned up to the alias of Damon Peterson because he wanted to keep that new Buick. And it was at that point when he owned up to that alias, apparently the arrest was made on the outstanding warrant, that apparently he did receive the death sentence pursuant to—
HEUER: But actually, the car was registered to Damon?
WILLETT: That’s my understanding. HEUER: And Damon was the one that was in northwest Arkansas and Gene wasn’t in northwest, he was in Alabama at that time.
WILLETT: Actually, this happened down in Florida, is my understanding.
HEUER: But when he owned up — when he was arrested, he was in Florida. WILLETT: Uh-huh.
HEUER: Okay.
WILLETT: With the new Buick.
LAMBERT: Where did the transfer of the Buick take place, was that in Florida?
WILLETT: I’m afraid I don’t have any hard information on that. I meant to ask Pruett what they kept the goods in. I was sort of keeping in mind that it was Friday, and trying to, you know, not to be too late as far as confirmed with you with being the end of the week and me needing to be back to Texas, but I was interested — also, the cases speak to the jury at least as it got back to Beaver Lake and sort of some orange duffel bags. I meant to ask Pruett what they put the bootie in out of this and I didn’t get a change to. It slipped my mind and we went on to more that could well be more pertinent.
* ‡ ❖ H: sfc
HEUER: All right, let me ask you this. Since we apparently on the money aspect, Pruett is now willing to cooperate with us without money?
WILLETT: No, I think. he’s not yet. Willing to do this, I mean we are cooperating, he is certainly at this point where through me today.
HEUER: Okay.
WILLETT: but he told me that if he had the money he would give the deposition, he’d finally says I’ll even provide in court testimony. The deposition would be interesting, no doubt, but well, anyway, for what it’s worth at this point, these details that perhaps no one else would know. Anyway, his — he said if it comes out in the paper, he’ll just deny the whole thing unless the money’s been paid. Is that responsive?
LAMBERT: How does he feel about us coming down there and talking to him, do you know?
WILLETT: He’d like to see the money. HEUER: Will he not talk to us without the money?
WILLETT: That was what he told me when I saw him last time. The issue didn’t really come up this time.
HEUER: Do you have any objection, as his counsel, of us, knowing now that we’re not going to pay any money to him for his testimony, and what not, do you have any objection to us going down and attempting to interview him as a witness? WILLETT: I don’t, but let me give a specific example. I think I know him as— or better than anyone in this room. You’ll
*1520
recall perhaps that I had some hesitation in giving you a photocopy of the letter before. And I hope you’ll understand that that was only because I didn’t want to queer the deal, if you will, as far as his availability perhaps, somewhere on down the line as that may be advisable, further on down. My legal instinct is to let this jell and sit with it a little bit and then perhaps we can confer further on it. Certainly, I think if his deposition were to be made available and I will say, knowing him as I do, I really think he’s going to — well, look any man in his position, you know, what’s he got to lose, you know.
HEUER: Why would he be willing to do this for $7,500?
WILLETT: Because he doesn’t have anything to lose really. He’s not subject to any law enforcement—
HEUER: Why would he require a payment though, if he doesn’t have anything to lose?
WILLETT: He does have some conscience I think, as far as Gene Perry’s being there or this wouldn’t have come out in the first place. In other words, he confided in me only because he had some conscience about it. But okay, he mentioned it today and certainly, you know, being there to be able to see his demeanor is worth something, the trier of fact, and then I’m sure you know, as far as appellate work. But he said oh, he was just being kind of hard about it, he said this happened to Gene Perry because of something else he did in his life and it’s just his karma coming back on him.
Other statements about Pruett’s knowledge of facts and circumstances relating to the Van Burén, Arkansas, murders will be found in other letters he wrote to Mr. Willett which were admitted into evidence. For instance, petitioner’s Exhibit 19 which is the letter from Pruett dated March 21, 1990, contains the following:
Say Bro, that Mike Gallagher guy sounds pretty good, and I agree with you on the credibility issue. I’m gonna answer the questions you wrote down and you can give them to Mike, “plus have Mike call Perry’s attorneys”!! If that’ll help us get the Harley Parts out of Geraldo, then good.” but I’m not going to give Mike anymore than I’ve already given Perry’s attorneys,” cause I don’t want those attorneys to have anymore evidence than they have now— unless they or Geraldo does come up with the Harley Parts. I’ll write Jake Dalton today also and tell him to talk with Mike about Michelle and the Perry case. Maybe that will help Mike to believe me, “also help him to get interested in Michelle’s Murder, plus help Jake sale the Book.”!! Hey Bro, you did Damn Good, and I’m proud of you.” Now let us see if we can get those Harley Parts.”
“Answers to questions for Mike”
1. Sundance used the name,
“DAMON PETERSON,”
(birth Certificate Name)!! He also used “DAMON MALATINO” and had a birth certificate for it too!! Tell Mike if he can talk with the D.A. there in Alburge (sic), and get “Barbara Padilla’s” address, and Guy Rogers address, then they can both tell him about Sundance.” I hooked Barbara up with sundance in 1980, and he almost killed her!! “Also see if you can get her address for me too, — it may be in the Alburge (sic), phone book”!!
2. Pat’s last name was “ETIER,” But she also used the last name, “MALATINO”!! She use to have a Ole Cabin around “Mountainburg, Ark.”!!
8. No tickets going or coming back. Michelle and I stayed in the Van in Fort Smith, “at the same place I killed the woman at in the robbery I’m convicted of now. Thats how I knew about that place and why I used it to dump the body at. Sundance was staying at the “Terry Motel in Van Burén,” and Michelle and I met him there.
4. Guy Rogers watched my mobile home, dogs, trucks, and scooters while Michelle and I were gone and he is the only person who knew Michelle and I were gone. Maybe this will help some. I also told Zeb Jones down in Miss, to call Perry’s attorneys and give them a statement about me telling the FBI about a Jewelry Store robbery I done (I told them in 1981 — in Jackson), but I refused to tell them where the Jewelry Store Robbery took place. Tell
*1521
Mike to also call Zeb Jones.” Thats all I’m going to release now Bro, hell, if that don’t help Mike believe me, then nothing will.
In addition to Mr. Pruett’s letters and statements to Mr. Willett and his own testimony, Mr. Perry has brought forth the testimony of other witnesses in support of his Supplemental Petition. A great effort was made to show that Mr. Anderson may have said on one or more prior occasions that Mr. Perry was not the person who was with him during the robbery and murders on September 10, 1980. That effort has failed.
When Mr. Anderson was asked if he did not tell one of Mr. Perry’s attorneys, prior to the Perry trial, that “Gene Perry is not the man I was with in Van Burén when I did the jewelry store,” he responded, “I have never made that statement.” And, the Court notes that Mr. Harrison (the attorney), when he testified, could not recall exactly what Mr. Anderson, in fact, said. He could not recall if Anderson said Perry was not the person with him (“because I don’t know if Anderson admitted that”) or that Perry was not the person known as Damon Peterson, or if he (Anderson) was not the person who was with Perry in Alabama. Of course, Anderson did, and does, deny being in Alabama in August 1980 with or without Perry. He claims to have been in Kansas.
Perry tried to make the point that Anderson did not identify him as “Damon Peterson” until 68 days after being returned to Arkansas from Vancouver, Canada, where he had been arrested. But it is clear from the evidence, and the Court so finds, that Mr. Anderson identified Mr. Perry as Damon Peterson, and as the one who murdered Mr. Staton and Ms. Ware,
before
he left Canada. And he has been consistent on this point since (even though at one point, after they were both in prison, he engaged in some “negotiations” with Perry concerning Perry’s “help” in connection with Anderson’s conviction of the Georgia murders).
This finding also thoroughly undercuts Pruett’s explanation of why Anderson “fingered” Perry. Recall Pruett’s statements in his May 8, 1989, letter to Willett,
supra:
“... Sundance knew one of the police officers on the Van Burén Force and he told Sundance everything the police knew about the crime. Sundance paid the policeman to tell Rick (Rick was in the Van Burén Jail) that if he didn’t say it was him and Gene Perry who did the crime, then I (me) would go kill his girl-friend and sister in Kansas. Rick was really scared of me, so he did just like Sundance told him to. About three months later. (After I seen Rick was going to do just like he was told), I went ahead and killed Sundance ...”
But, as found above, Anderson implicated Perry to Arkansas law officers while Anderson was still in Canada, i.e. shortly after his arrest there.
The Court finds that Anderson never met Pruett before 1981. And he could have known of no threat by Pruett at the time he identified Perry from a photo-line up in Canada. And, as pointed out below, it is difficult to identify any motive Anderson would have to say Perry was the same person as Damon Peterson if he were not that same person.
Here we have an egregious example of attempted manipulation of the justice system by an admitted murderer. And, although Mr. Pruett refers to his conscience, his most obvious motives are to obtain money and further notoriety. Mr. Pruett’s cynicism and at least part of his motive (“Harley Parts” equals money) are revealed in several of his letters to Mr. Willett. For instance the letter dated June 17, 1991, Petitioner’s Exhibit 12, states as follows:
As for Sam Huer, and Perry!! Well Bro, “fuck them, both”!! I’m not going to that Court Hearing unless we get the Harley Parts up front. And if Huer calls you to the Hearing, “then just get up there and tell the Judge you are handling My Appeal in New Mexico, and I have advised you to say NOTING”!! (sic)
Now, if the Judge Order’s you to talk, “then thats different, cause I sure don’t want you to go to jail but if the Judge doesn’t Order You to talk, then don’t say a word to help Perry at that Hearing. I’ll show that Cocksucker how to be a Real Weasel.!! If they don’t give us the Harley Parts, then fuck them.
*1522
As for Jack Gilliam, after Perry is Executed, then maybe I’ll give him the gun that was used and the rest of the Evidents (sic) to prove I did it “just so I can make a fool out of the State’s A.G’s Office for Executing an innocent man, “Har!! Harü I know that sounds cold, but I’m starting to believe now that the whole Pruett/Perry deal will be worth alot more after Perry is Executed, and since Perry and Huer wants to play games with Perry’s life (by not giving us the Harley Parts) then fuck them. Like I said, the whole deal will sale (sic) better after Perry has been Executed — “so fuck them all”!! I know I can prove I did the murders and I’ll really get the last laugh on them all,” the State of Arkansas too”!!
Just remember this Bro, “you busted your ass to help prove Perry was innocent, and to get the wheels of Justice to help him”!! It was I who keep back part of the real good Evidents (not you)!! The State will spend millions to try and prove Perry did it!! And Perry and Huer both know that fact. If Perry and Huer are so dumb as to not see that fact and to damn dumb to give us the Harley Parts, “then let the State with all its millions and manpower go ahead and execute the wrong man.”
You can only do as much to save a fool’s life, and Perry is a fool. He knows I am the only one who can help him now and I’m not all that crazy over seeing the wheels of Justice move right now for Perry. So let the fool be Executed, “you did your part to try and save his life.”
And after he is Executed, “then I’ll give everything up to the Right Magazine or T.V. Show, and prove Perry was innocent”!! Then you and I will really make some good money off this story. So for now, just let things go, and if Perry wants to stay a fool, then let him, “cause I’ll still get my money after he is Executed — and maybe even more too”!!
Along the same vein see the following comments contained in Mr. Pruett’s letter to Mr. Willett dated July 12, 1991, Petitioner’s Exhibit 13:
That reminds me, I have somemore good news, and some bad news to share with you. My Attorney’s from New York City called here yesterday and told me that Judge Howard has sit (sic) a Nov. 25th Hearing Date for My Appeal in Federal District Court. They said they are gonna try and ask the Judge to set the Hearing Date off till after Jan. 1st, 1992, “cause they don’t want to fly down here just for one day (the 25th) then back home for Thanksgiving, and then back down here for another four or five days. They seem to feel sure they’ll get a new Hearing Date, so keep your finger’s crossed that they will,!! Looks like the long wait here in Arkansas could be up pretty soon. Man, I don’t mind telling you I’d like to be back in Miss.!! If I ever beat the Death Sentence here in Arkansas, then I’m gonna try and get transferred to New Mexico or Colorado.!!
Now, Gene Perry stopped by my cell door the other day on his way to take a shower and he let me read a letter he had just received from his attorney here. The letter said the Federal Judge seat (sic) Dec. 16th for Perry’s Hearing Date And that he and the State Attorney General (from here in Ark.) were going to New Mexico to get
Statement from
You!!
I guess Perry’s attorney feels he can squeeze you into giving a statement for Perry if he has the State A.G. with him. So like you wrote “Fuck-Them,” you and I shot straight with them all from the word go. They are the ones who tried to put the squeeze on you because you are an attorney, and it was them who played the Waiting Game!!
Gene Perry had his chance for freedom, but instead of playing the Harley Parts, he listened to his attorneys and played the waiting game and squeeze game on you. So, in my books Gene Perry was as much in The Wrong as his attorneys were. All he had to do was shot straight with me and he would have his freedom. Since he went along with his attorneys, then let them worry over Perry’s Execution, “cause I’m sure not going to, and neither should you”!!
Don’t worry over any of this anymore. When Perry’s Attorney and the Ark.A.G.
*1523
comes to see you, “then tell them the New Mexico Advisory Committee told you to do as I wish and its My wishs that you don’t give a Statement or Testify for Perry in Federal Court!! And that should be the end of it. Then after Perry is Executed, we can both come forward and make a Killing off how the State and Perry’s Attorneys let him be Executed,!! As far as I’m concerned, “Perry is Dead,” and I’m just waiting to cash in on the Execution when its over with. So like I said, “don’t worry over it, and just tell them all to Blame Themselfs”!!
Finally, note the language in Pruett’s letter to Willett dated December 30,1991, Petitioner’s Exhibit 14:
I see now the only way you and I are gonna get any money out of this Perry Deal is to wait till after he is Executed. Then we’ll get with that guy n England and sale (sic) the Whole Story,!!
That reminds me, I also got a Christmas Card and letter from John Jake Dalton---- Anyway, I hope he’ll do something with the Book now, “because the U.S. Supreme Court ruled last month that the Son of Sam Law in New York wasn’t any good” — that prisoners
can make
money and keep it, off the sale of a Book on their Crimes,!!
Other communications by Marion Pruett show him to have used the same approach in other situations that he is using here. For instance respondent’s Exhibit # 1 is a letter to Ms. Pettigrew of the
Jackson Daily News,
written by Pruett on November 7,1989. The daughter of one of his murder victims, Mrs. Lowe, had made many efforts to find out what happened to an expensive heirloom diamond ring that Mrs. Lowe had been wearing when she was kidnaped by Pruett. In this letter Pruett states, “Well, Ms. Pettigrew, I’ll not only tell you what I did with that expensive heirloom but I will also give you the name and address of the woman who is still wearing it to this day.” He then states what he wants for this “exclusive story”: “A nice big donation to my legal fund to prove I did not murder my wife in New Mexico. So if the
Jackson Daily News
will donate 20,000 dollars to my New Mexico attorney (Mr. Brian Willett) for my New Mexico appeal, then I will give you the person who still wears that expensive diamond ring and a first hand interview.”
In a similar vein we find the letter written by Mr. Brian Willett to Geraldo Rivera on May 24, 1990, in an attempt to get Mr. Rivera interested in three subjects: “(1) Pruett — Perry, Arkansas (see newspaper clipping, copy enclosed). (2) Pruett — Ring offer (Mississippi, see copy enclosed). (3) Pruett — Body location offer (Florida; see below).” Mr. Willett then goes on to state that item 3 will bear on the credibility of the other two items. He states that item 3. is “that Mr. Pruett offers to disclose, and even point out, the location of a body resulting from his robbing a bank in Tallahassee, Florida. He proposes to do this through the auspices of your program.” Finally, Mr. Willett states, “Mr. Pruett does expect some monetary compensation for providing such information and assistance in these matters.”
Nevertheless, we must not forget that the focus here is on Mr. Perry’s claim of actual innocence rather than on the ethics or morality of Mr. Pruett. Still the credibility of Mr. Pruett remains central to the issue. But the best tool we have for determining credibility in a judicial proceeding, that is, cross examination under oath, is not available to us because Mr. Pruett refuses to testify. So we are called upon to credit the unchallenged out-of-court statements of a felon whose admitted conduct reveals a criminal mind of seldom encountered depravity and evil. What guidance do we find in the law?
THE LAW
The Supreme Court has recently clarified the law governing the consideration of habeas claims, such as petitioner’s, that seek relief on the grounds that the petitioner is “actually innocent” of the crime(s) of which he has been convicted. In
Schlup v. Delo,
— U.S. -, 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), the Court recognized three possible scenarios in which such “actual innocence” claims can be raised, each of which must be evaluated under a separate analytical framework. First, where a petitioner is attempting to put forward a constitutional claim in a successor habeas proceeding, and cannot
*1524
make the requisite showing of “cause and prejudice” necessary to avoid the bar of the “abuse of the writ” doctrine, see
McCleskey v. Zant,
499 U.S. 467, 493-94 , 111 S.Ct. 1454, 1469-70 , 113 L.Ed.2d 517 (1991), the petitioner may raise his claim of “actual innocence” as a means of persuading the habeas court to address the merits of his constitutional claim. In this scenario, the petitioner’s claim of actual innocence is not itself a substantive claim for relief, but is rather a procedural gateway that will allow him to present the underlying independent, and otherwise barred, constitutional claim.
2
Schlup v. Delo, supra,
— U.S. at -, 115 S.Ct. at 860-62 . In order to pass through this gateway, the petitioner must prove that it is “more likely than not” that he is, in fact, actually innocent of the crime(s) of which he has been convicted.
Id.
at -, 115 S.Ct. at 867 ;
see also Murray v. Carrier,
477 U.S. 478, 494-96 , 106 S.Ct. 2639, 2648-49 , 91 L.Ed.2d 397 (1986). Second, a habeas petitioner can argue that, while he may be guilty of the crime(s) charged, he is actually innocent of the death penalty. See
Sawyer v. Whitley,
505 U.S. -, 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992). Since such a claim does not assert that the petitioner’s conviction was the product of a constitutionally infirm proceeding, the petitioner must meet a higher burden of proof and must demonstrate by “ ‘clear and convincing evidence’ ” that he is actually innocent of the death penalty.
Schlup v. Delo, supra,
— U.S. at -, 115 S.Ct. at 865 (quoting
Sawyer v. Whitley, supra,
505 U.S. at -, 112 S.Ct. at 2515 ) (emphasis omitted). Finally, a petitioner can argue that he is, in fact, actually innocent of the crime(s) charged, and that given this fact it would be constitutionally impermissible to allow him to be executed.
3
Under this scenario, the petitioner’s claim of actual innocence is advanced as a substantive ground for habeas relief in-and-of itself. However, the Supreme Court did not discuss the parameters governing free-standing claims of actual innocence in its
Schlup
decision. See — U.S. at - & n. 31, 115 S.Ct. at 860 -61 & n. 31. Accordingly, in addition to the gateway claim analysis set forth in
Schlup v. Delo,
the five opinions in
Herrera v. Collins,
506 U.S. -, 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993) relating to freestanding claims, set the stage for the discussion of petitioner’s actual innocence claims.
First we must ask: Is there an independent constitutional violation in the underlying state criminal proceedings? Here petitioner reasserts the claim made in his first habeas proceeding that the trial court’s refusal to permit the issuance of subpoenas to compel the attendance of four out-of-state alibi witnesses violated his Sixth Amendment right to compulsory process. This Court, see
supra,
denied this claim and its ruling thereon was affirmed on appeal. See
Perry v. Lockhart,
871 F.2d 1384 (1989). But petitioner asserts that this Court should now revisit that issue in the light of the newly discovered evidence issue. The Court disagrees, concluding that the Sixth Amendment issue was properly resolved in the original habeas proceeding and that it is unaffected by the newly discovered evidence allegations.
There are no other unresolved constitutional claims arising out of the state proceedings up to and including the verdict and sentence. In short, petitioner received a fair trial in accordance with constitutional standards, and there was ample evidence to support the jury’s verdicts. But how about
after
the verdict and sentence? Has the State of Arkansas deprived the petitioner of due process under the Fourteenth Amendment by not providing him with a
judicial procedure
for obtaining a new trial based upon newly discovered evidence of his actual innocence? Or, put another way, even if the state is required to provide some remedy in this' situation, are the procedures incident to Executive Clemency not sufficient to satisfy the Fourteenth Amendment? Justices Scalia and Thomas are clearly of the opinion that, if indeed any due process is required in such
*1525
situations, Executive Clemency should be enough. Note Justice Scalia’s language:
We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.” I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
# ^ * * * ifc
I nonetheless join the entirety of the Court’s opinion, including the final portion (pages 869-870) — because there is no legal error in deciding a ease by assuming
arguendo
that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.
Chief Justice Rehnquist’s opinion is less clear on the point. Still, it appears that he is of the opinion that the potential of executive, i.e. not judicial, relief would meet any due process requirement. A great part of his opinion is devoted to laying the foundation for such a position. See
Herrera ,
506 U.S. at -, 113 S.Ct. at 864-869 . Therein he reviews the history of new trials in our state and federal jurisprudence and the current state of time limitations on the filing of motions for new trials on the basis of newly discovered evidence. Note his language:
In 1945, we set a two-year time limit for filing new trial motions based on newly discovered evidence and abolished the exception for capital cases Rule 33, Federal Rules of Criminal Procedure, 327 U.S. 821 , 855-856 (“A motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment”). We have strictly construed the Rule 33 time limits.
Cf. United States v. Smith,
331 U.S. 469, 473 , 67 S.Ct. 1330, 1332 , 91 L.Ed. 1610 (1947). And the Rule’s treatment of new trials based on newly discovered evidence has not changed since its adoption.
The American Colonies adopted the English common law on new trials. Riddell, New Trial in Present Practice, 27 Yale L.J. 353 , 360 (1917). Thus, where new trials were available, motions for such relief typically had to be filed before the expiration of the term during which the trial was held. H. Underhill, Criminal Evidence 579, n. 1 (1998); J. Bassett, Criminal Pleading and Practice 313 (1885). Over time, many States enacted statutes providing for new trials in all types of cases. Some States also extended the time period for filing new trial motions beyond the term of court, but most States required that such motions be made within a few days after the verdict was rendered or before the judgment was entered. See American Law Institute Code of Criminal Procedure 1040-1042 (Official Draft 1931) (reviewing contemporary new trials rules). The practice in the States today, while of limited relevance to our historical inquiry, is divergent. Texas is one of 17 States that requires a new trial motion based on newly discovered evidence to be made within 60 days of judgment. One State adheres to the common-law rule and requires that such a motion be filed during the term in which judgment was rendered. Eighteen jurisdictions have time limits ranging between 1 and 3 years, with 10 States and the District of Columbia following the 2-year federal time limit. Only 15 States allow a new trial motion based on newly discovered evidence to be filed more than 3 years after conviction. Of these States, 4 have waivable time limits of less
*1526
than 120 days, 2 have waivable time limits of more than 120 days, and 9 States have no time limits.
In light of the historical availability of new trials, our own amendments to Rule 33, and the contemporary practice in the States, we cannot say that Texas’ refusal to entertain petitioner’s newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness “rooted in the traditions and conscience of our people.”
Patterson v. New York,
432 U.S. [197], at 202, 97 S.Ct. [2319,] at 2322[, 53 L.Ed.2d 281 (1977)] (internal quotation marks and citations omitted). This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. See Tex. Const., Art. Iv., § 11; Tex.Code Crim.Proc.Ann., Art., 48.01 (Vernon 1979). Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.
In a footnote Chief Justice Rehnquist notes that 17 states, including Arkansas, require such motions to be filed within 60 days of judgment. The note states that Arkansas allows only 30 days. But see discussion below.
The other six Justices, in their concurring and dissenting opinions, appear to support a due process requirement that would provide some
judicial
ventilation of the claim of newly discovered evidence of actual innocence in death penalty cases, although that conclusion is subject to debate. Justice . O’Connor, joined by Justice Kennedy, deals with this issue thusly:
Consequently, the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial.
Ante,
[506 U.S. at -, n. 6, 113 S.Ct.] at 864, n. 6; see
ante,
[506 U.S. at -, 113 S.Ct.] at 860. In most circumstances, that question would answer itself in the negative. Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.
Ante,
[506 U.S. at -, 113 S.Ct.] at 859 (opinion of the Court). The question similarly would be answered in the negative today, except for the disturbing nature of the claim before us. Petitioner contends not only that the Constitution’s protections “sometimes fail,”
post,
[506 U.S. at -, 113 S.Ct. at] 876 (dissenting opinion), but that their failure in his case will result in his execution— even though he is factually innocent and has evidence to prove it.
Exercising restraint, the Court and Justice WHITE assume for the sake of argument that, if a prisoner were to make an exceptionally strong showing of actual innocence, the execution could not go forward. Justice BLACKMUN, in contrast would expressly so hold; he would also announce the precise burden of proof. Compare
ante,
[506 U.S. at -, 113 S.Ct.] at 869 (opinion of the Court) (We assume, “for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim”), and
ante,
[506 U.S. at -, 113 S.Ct.] at 875 (WHITE, J., concurring in judgment) (assuming that a persuasive showing of actual innocence would render a conviction unconstitutional but explaining that, even under such an assumption, “petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could [find], proof of guilt beyond reasonable doubt.’
Jackson v. Virginia,
443 U.S. 307, 314 , 99 S.Ct. 2781, 2786 , 61 L.Ed.2d 560 (1979)”), with
post,
[506 U.S. at -, 113 S.Ct.] at 882 (dissenting opinion) (“I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent”).
*1527
Resolving the issue is neither necessary nor advisable in this case. The question is a sensitive and, to say the least, troubling one. It implicates not just the life of a single individual, but also the State’s powerful and legitimate interest punishing the guilty, and the nature of state-federal relations. Indeed, as the Court persuasively demonstrates,
ante,
[506 U.S. at -, 113 S.Ct.] at 859-869, throughout our history the federal courts have assumed that they should not and could not intervene to prevent an execution so long as the prisoner had been convicted after a constitutionally adequate trial. The prisoner’s sole remedy was a pardon or clemency. Nonetheless, the proper disposition of this case is neither difficult nor troubling.
Why not difficult or troubling? Because Justice O’Connor examines the record and finds that there is no possibility that Herrera might actually be innocent. Her conclusion: “Petitioner is guilty,”
Id.
506 U.S. at p. -, 113 S.Ct. at p. 873 . She thereby avoided having to decide the “sensitive” and “troubling” issue. So it is at least possible that Justice O’Connor, Justice Kennedy and Chief Justice Rehnquist, will join Justices Scalia and Thomas if there is ever any show-down on this issue. And, of course, Justice White and Justice Blackmun are no longer on the Court.
Of course, if Justice Scalia’s position controlled, this Supplemental Habeas Petition would simply have to be dismissed without further ado. In that situation Mr. Perry’s only recourse would be to seek Executive Clemency. But even Justice Scalia acknowledges that the
Herrera
opinion does not unequivocally leave the lower courts this option. Note his language:
My concern is that in making life easier for ourselves we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly-discovered-evidence-of-innocence claims in capital cases (in which event such federal claims, it can confidently be predicted, will become routine and even repetitive).
But he does suggest that lower courts could follow
Townsend v. Sain,
372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963) and certain decisions of various Courts of Appeals and thereby avoid this exercise. Again note his language:
A number of Courts of Appeals have hitherto held, largely in reliance on our unelaborated statement in
Townsend v. Sain,
372 U.S. 293, 317 , 83 S.Ct. 745, 759 , 9 L.Ed.2d 770 (1963), that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief. See,
e.g., Boyd v. Puckett,
905 F.2d 895, 896-897 (CA5), cert. denied, 498 U.S. 988 , 111 S.Ct. 526 , 112 L.Ed.2d 537 (1990);
Stockton v. Virginia,
852 F.2d 740, 749 (CA4 1988), cert. denied, 489 U.S. 1071 , 109 S.Ct. 1354 , 103 L.Ed.2d 822 (1989);
Swindle v. Davis,
846 F.2d 706, 707 (CA11 1988)
(per
curiam);
Byrd v. Armontrout,
880 F.2d 1, 8 (CA8 1989), cert. denied, 494 U.S. 1019 , 110 S.Ct. 1326 , 108 L.Ed.2d 501 (1990);
Burks v. Egeler,
512 F.2d 221, 230 (CA6), cert. denied, 423 U.S. 937 , 96 S.Ct. 297 , 46 L.Ed.2d 270 (1975). I do not understand it to be the import of today’s decision that those holdings are to be replaced with a strange regime that assumes permanently, though only “arguendo,” that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court’s extensive and scholarly discussion of the question presented in the present case does nothing but support our statement in
Townsend ,
and strengthen the validity of the holdings based upon it.
Is it possible that, under
Herrera ,
this Court should dismiss this case because of petitioner’s failure to exhaust state remedies,
i.e.
the remedy of Executive Clemency?
In light of the numerous opinions rendered in the Supreme Court’s decision in
Herrera v. Collins,
the lower courts have been faced with somewhat of a quandary as to how exactly a claim of “actual innocence” should now be evaluated in the context of a successive petition for a writ of habeas corpus. In an effort to answer this question, the Eighth Circuit has since endeavored to piece together the Justices’ various opinions, and has formulated a two-part analytical framework which is to be applied to claims of actual
*1528
innocence based on newly discovered evidence. In so doing, the Eighth Circuit has recognized two distinct claims of actual innocence, namely gateway claims and freestanding claims, each of which may, if proven, serve as a basis for habeas relief. See
Griffin v. Delo,
33 F.3d 895, 906-08 (8th Cir.1994).
Since petitioner’s attempt to raise his claim of actual innocence in this successive habeas petition is presumptively viewed as an abuse of the writ,
see McCleskey v. Zant, supra,
499 U.S. at 477-93 , 111 S.Ct. at 1461-69 ;
cf.
28 U.S.C.A. § 2244 (b) (West 1994), the Court must first consider his claim in the context of the “miscarriage of justice”-“actual innocence” exception to the abuse-of-the-writ doctrine articulated in
Sawyer v. Whitley, supra,
505 U.S. at -, 112 S.Ct. at 2519 .
Griffin v. Delo, supra,
33 F.3d at 906 . As the Eighth Circuit has repeatedly recognized, in this context petitioner is not required to make the “cause-and-prejudice” showing that is normally required to avoid application of the abuse-of the-writ doctrine, but rather must only prove that he is, in fact, actually innocent. See
Murray v. Delo,
34 F.3d 1367, 1372-73 (8th Cir.1994);
Fairchild v. Norris,
21 F.3d 799, 801 ,
cert. denied,
— U.S. 115 S.Ct. 1092 , 130 L.Ed.2d 1061 (1994);
Battle v. Delo,
19 F.3d 1547, 1552 (8th Cir.1994). Under this analysis, however, petitioner’s claim of actual innocence is not itself viewed as a cognizable claim for habeas relief. Instead, it functions as a gateway claim which, if proven, would allow the Court to reach the merits of an independent claim for habeas relief that would otherwise be construed as procedurally barred.
4
Griffin v. Delo, supra,
33 F.3d at 906 -07 (quoting
Herrera v. Collins, supra,
506 U.S. at -, 113 S.Ct. at 862 ). Since the current petition does not raise any claim for relief other than petitioner’s claim of actual innocence, this mode of analysis is inapplicable to the present case.
However, the Eighth Circuit has also concluded that a meritorious claim of actual innocence can, standing alone, serve as a valid and independent basis for the issuance of a writ of habeas corpus. In so concluding, the Court of Appeals viewed the Supreme Court as having recognized in
Herrera
that the execution of a person who was actually innocent would violate the constitutional guarantees of due process.
5
Griffin v. Delo, supra,
33 F.3d at 908 ;
Schlup v. Delo,
11 F.3d 738, 743-44 , (8th Cir.1993),
vacated on other grounds,
— U.S. -, 115 S.Ct. 851 , 130 L.Ed.2d 808 . Thus, in the present context petitioner’s claim of actual innocence must be viewed as a free-standing claim for habeas relief, the merits of which will ultimately determine the fate of his habeas petition.
See ibid.
In assessing the merits of petitioner’s free-standing actual innocence claim, based as it is upon newly discovered evidence, the Court’s inquiry is quite circumscribed:
[The Court] must review the evidence [, including petitioner’s newly discovered evidence,] to determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt[,]’ not whether ‘[the Court believes]
*1529
that the evidence ... established] guilt beyond a reasonable doubt.’
Murray v. Delo, supra,
34 F.3d at 1374 (quoting
Herrera v. Collins, supra,
506 U.S. at -, 113 S.Ct. at 861 );
see also Griffin v. Delo, supra,
33 F.3d at 908 ;
Battle v. Delo, supra,
19 F.3d at 1552 ;
Schlup v. Delo, supra,
11 F.3d at 743-44 . Further, the Eighth Circuit has held that a petitioner must prove a free-standing claim of actual innocence by clear and convincing evidence.
6
Schlup v. Delo, supra,
11 F.3d at 740 ;
cf. Grffin v. Delo, supra,
33 F.3d at 908 .
However, before the Court may proceed to evaluate the merits of petitioner’s free-standing claim of actual innocence, the Court must be satisfied that the Arkansas courts no longer provide a “ ‘state avenue open to process such a claim.’”
7
G
riffin v. Delo, supra,
33 F.3d at 908 (quoting
Herrera v. Collins, supra,
506 U.S. at -, 113 S.Ct. at 869 );
accord Schlup v. Delo, supra,
11 F.3d at 743 (same). As this requirement is, in reality, nothing more than a corollary to the exhaustion-of-remedies doctrine that has long obtained in state petitioners’ habeas corpus proceedings, 28 U.S.C.A. § 2254 (b) (1994); see
Ex parte Royall,
117 U.S. 241, 252-53 , 6 S.Ct. 734, 740-41 , 29 L.Ed. 868 (1886), the Court may not address the merits of petitioner’s claim if “he has the right under the law of [Arkansas] to raise, by any available procedure, the question presented” in this habeas petition. 28 U.S.C.A. § 2254 (c) (1994);
see also Castille v. Peoples,
489 U.S. 346, 350-51 , 109 S.Ct. 1056, 1059-60 , 103 L.Ed.2d 380 (1989);
Dolny v. Erickson,
32 F.3d 381, 383-84 (8th Cir.),
cert. denied,
— U.S. -, 115 S.Ct. 902 , 130 L.Ed.2d 786 (1994). If, however, none of the potential avenues for state relief remain open, then the merits of petitioner’s actual innocence claim must be addressed.
See Griffin v. Delo, supra,
33 F.3d at 908 ;
Schlup v. Delo, supra,
11 F.3d at 743-44 ;
cf. Herrera v. Collins, supra,
506 U.S. at -, 113 S.Ct. at 869 (“We may assume ... that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would ... warrant federal habeas relief if there were no state avenue open to process such a claim.”);
Coleman v. Thompson,
501 U.S. 722, 732 , 111 S.Ct. 2546, 2555 , 115 L.Ed.2d 640 (1991) (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).
*1530
As this opinion has previously indicated, petitioner’s claim of actual innocence is founded upon what he characterizes as newly discovered evidence. Arkansas law permits a person convicted of a crime to file a motion with the trial court seeking a new trial based on newly discovered evidence,
8
provided that such a motion is filed “[pjrior to the time fixed to file a notice of appeal.” Ark.Code Ann. § 16 — 91—105(b)(1) (Michie 1987);
accord
Ark.R.Crim.P. 36.22 (Michie 1994) (“A ... motion for new trial ... must be filed prior to the time fixed to file a notice of appeal.). Arkansas law requires the filing of a notice of appeal, and hence a motion for a new trial, “[wjithin thirty (30) days from the date of the sentence and entry of judgment by the trial judge.” Ark.Code Ann. § 16-91-105(a)(l) (Michie 1987);
accord
Ark.R.Crim.P. 36.9(a) (Michie 1994). Clearly, petitioner’s effort to secure a new trial based upon newly discovered evidence, coming as it does some 13 years following the trial court’s entry of the criminal judgment of conviction against him, is well outside the time period prescribed by Arkansas law for the presentation of such claims. Thus, it is not terribly surprising that petitioner has made no effort to present his claim of actual innocence to the state courts.
This conclusion does not, however, dispose of the exhaustion problem presented by the present petition. Although petitioner’s claim of actual innocence and request for a new trial is clearly untimely under Arkansas law, this fact does not necessarily mean that the Arkansas courts no longer provide a forum for the adjudication of his claim. This conclusion would only follow if the thirty-day filing period contemplated by § 16-91-105(b)(1) and Rule 36.22 operates so as to limit the state courts’ ability to exercise jurisdiction over petitioner’s claim. If, on the other hand, this limitations period operates only as a prudential consideration to be taken into account when considering whether to entertain an untimely motion for a new trial, then the state courts would have to be viewed as an available forum for the presentation of petitioner’s actual innocence claim.
Compare Herrera v. Collins, supra,
506 U.S. at -, -, 113 S.Ct. at 860, 869-70 (the Supreme Court considered (and rejected) Herrera’s actual innocence claim since Texas’ thirty-day period for presenting a motion for a new trial imposed a
jurisdictional limitation
on the Texas courts).
Unfortunately, this inquiry is complicated by the fact that the Arkansas courts have not yet considered the question whether Arkansas’ thirty-day filing period applicable to a motion for a new trial is jurisdictional in nature.
9
This circumstance could, arguably, justify the Court’s dismissal of petitioner’s petition, thereby requiring him to present this issue to the state courts.
10
Cf. Collins v. Lockhart,
707 F.2d 341, 343-44 (8th Cir.1983). Alternatively, the Court could attempt to prognosticate the view that would likely be expressed by the Arkansas Supreme Court were it to be confronted by this question.
See Walker v. Jackson Nat’l Life Ins. Co.,
20 F.3d 923, 924 (8th Cir.1994);
Carvin v. Arkansas Power & Light Co.,
14 F.3d 399, 403-04 (8th Cir.1993). Although not without some hesitation, the Court elects to follow the latter approach.
While the Arkansas Supreme Court has not directly addressed the jurisdictional ramifications, if any, that result from failing to comply with the filing period specified by § 16 — 91—105(b)(1) and Rule 36.22, it appears that the court has provided an indirect answer to this question. In
Goodwin v. State,
261 Ark. 926, 929-30 , 552 S.W.2d 233, 235-36 (1977) (per curiam), the court concluded that the thirty-day period established by Rule 36.9 for the filing of a notice of appeal does
*1531
not limit the jurisdiction of the state’s courts, since that rule expressly provides that the state’s appellate courts “may act upon and decide a case in which the notice of appeal was not given or ... filed in the time prescribed,” provided that good cause is shown for the delay.
11
Id.
at 930 , 552 S.W. at 235 (quoting Ark.R.Crim.P. 36.9 (1976)) (emphasis omitted);
see also
Ark.R.Crim.P. 36.9(e) (Miehie 1994). As previously discussed, the time frame for the filing of a motion for a new trial is not itself defined as being thirty days, but is instead defined as “the time fixed to file a notice of appeal.” See also
Penn v. State,
282 Ark. 571, 574 , 670 S.W.2d 426, 428 (1984);
Chisum v. State,
274 Ark. 332, 334 , 625 S.W.2d 448, 449 (1981). In light of
Goodwin ,
it seems to follow,
a fortiori,
that the jurisdictional consequences for failing to timely file a motion for a new trial should mirror those which result from failing to timely file a notice of appeal, since the limitations period of § 16-91-105(b)(1) and Rule 36.22 is specifically defined by reference to that set forth in Rule 36.9(a). Accordingly, the Court concludes that compliance with the thirty-day filing period contemplated by § 16 — 91—105(b)(1) and Rule 36.22 is not a jurisdictional prerequisite to the state court’s consideration of a motion for a new trial based upon newly discovered evidence.
Compare State v. Thurman,
305 Ark. 448 , 808 S.W.2d 762 (1991) (holding that the sixty-day period established by Ark.R.Crim.P. 36.10(c) for filing transcripts in appeals by the State, which does not expressly contain a provision for untimely filings, operates as a jurisdictional limitation).
This conclusion is not inconsistent with the Arkansas Supreme Court’s application of § 16-91-105(b)(l) and Rule 36.22. The Court is aware that the Arkansas Supreme Court has relied upon this statute and/or rule in affirming lower court decisions not to address a motion for a new trial based on newly discovered evidence that was filed more than thirty days after the entry of the criminal judgment of conviction. However, the court has never expressly held that this thirty-day period is jurisdictional.
See, e.g., Cigainero v. State,
310 Ark. 504, 506-08 , 838 S.W.2d 361, 362-64 (1992);
Smith v. State,
301 Ark. 374, 375 , 784 S.W.2d 595, 596 (1990);
compare State v. Thurman, supra,
305 Ark. at 448 , 808 S.W.2d at 762 . Given that the thirty-day period contemplated by § 16-91-105(b)(1) and Rule 36.22 is expressly qualified by a “good-cause” exception (through its reference to § 16-91-105(a)(l) and Rule 36.9), this fact is hardly unexpected.
Cf. Chisum v. State, supra,
274 Ark. at 334 , 625 S.W.2d at 449 (Rule 36.22 fixes “the time for filing a motion for a new trial as that allowed for the filing of a notice of appeal (ordinarily 30 days)”);
Goodwin v. State, supra,
261 Ark. at 930 , 552 S.W.2d at 235-36 .
In light of the good-cause exception that the Court considers to have been incorporated into § 16 — 91—105(b)(1) and Rule 36.22, the Court’s answer to the jurisdictional question now presented also appears to be consistent with the approach that the Arkansas courts have historically taken when addressing a belated motion for a new trial based on newly discovered evidence.
See generally
Woodson W. Bassett, Jr. & James L. Sloan,
New Trial in Arkansas on Basis of Newly Discovered Evidence, 4
Ark.L.Rev. 60 (1949). When one considers that the Arkansas Supreme Court has characterized claims of newly discovered evidence as “one of the least favored grounds for [a] motion for a new trial,”
Cooper v. State,
246 Ark. 368, 376 , 438 S.W.2d 681, 685 (1969);
accord Gross v. State,
242 Ark. 142, 145 , 412 S.W.2d 279, 282 (1967), it is not surprising to learn that Arkansas has historically imposed rigid time constraints upon the filing of such motions. At common-law, a motion for a new trial in a criminal case was required to be filed before the end of the court term in which the judgment of conviction was entered.
See Howard v. State,
58 Ark. 229, 232 , 24 S.W. 8, 9 (1893). Arkansas incorporated this requirement into its 1869
*1532
criminal code, see Ark.Crim.Code §§ 266 to 270 (1869) (repealed 1987), and it appears that this requirement was originally viewed as being jurisdictional.
See Howard v. State, supra,
58 Ark. at 229 , 24 S.W. at 8-9 ;
but cf. Bussey v. State,
69 Ark. 545, 547 , 64 S.W. 268, 269 (1901) (apparently recognizing a “fundamental miscarriage of justice” exception to a defective motion for a new trial based on newly discovered evidence). However, while this limitation upon the filing of new trial motions continued to be included in later statutory compilations, see Ark.Stat. Ann. §§ 43-2202 to 2205 (1947) (repealed 1987), at some point the Arkansas Supreme Court appears to have stopped construing this time constraint as imposing a jurisdictional limitation upon the state courts.
See Taylor v. State,
255 Ark. 65, 66-67 , 498 S.W.2d 876, 877 (1973) (rejecting on the merits an untimely new trial motion based on newly discovered evidence);
Gross v. State, supra,
242 Ark. at 144-48 , 412 S.W.2d at 282-83 (same);
Hix v. State,
189 Ark. 688, 691 , 74 S.W.2d 966, 967-68 (1934) (same);
but see Delaney v. State,
212 Ark. 622, 626-27 , 207 S.W.2d 37, 38-39 (1948);
Thomas v. State,
136 Ark. 290, 291-92 , 206 S.W. 435 (1918). Thus, by declining to view the thirty-day filing period contemplated by § 16-91-105(b)(1) and Rule 36.22 as being jurisdictional, the Court has not only given effect to the good-cause exception that has been incorporated into this rule, but it has also has adopted an approach for addressing an untimely motion for a new trial, based upon newly discovered evidence, that is in accord with the approach which has evolved in the decisions of the Arkansas courts.
Although the Court has determined that the thirty-day filing period established by § 16-91-105(b)(1) and Rule 36.22 does not itself operate as a jurisdictional bar to petitioner’s presenting his actual innocence claim in the state courts, the Court must nevertheless conclude that petitioner is time-barred from raising this claim in the Arkansas courts. As indicated in the preceding discussion, the Court has concluded that, under Arkansas law, the jurisdictional consequences for failing to timely file a motion for a new trial must mirror those which result for failing to timely file a notice of appeal. Although the thirty-day period established by § 16-91-105(a)(1) and Rule 36.9 for the filing of a notice of appeal is not jurisdictional, Rule 36.9 does impose an absolute time limit within which belated appeals may be considered. After setting forth the “good cause” exception to the thirty-day filing period, Rule 36.9 goes on to provide that “no motion for belated appeal shall be entertained ... unless application has been made ... within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which appeal is taken.”
12
Ark.R.Crim.P. 36.9(e) (Michie 1994). Since this provision establishes an explicit and unqualified limitation upon the state court’s ability to address the merits of an untimely appeal, the Court concludes that compliance with this eighteen-month limitations period was intended to be viewed as a jurisdictional prerequisite.
Cf. State v. Thurman, supra,
305 Ark. at 488 , 808 S.W.2d at 762 . Accordingly, since the Court has concluded that the jurisdictional limits upon the state courts’ ability to hear an untimely appeal serve also to define those established by § 16-91-105(b)(l) and Rule 36.22, the Court is forced to conclude that the Arkansas courts lack jurisdiction to hear a motion for a new trial, such as petitioner’s, that has been (or would be) filed more than eighteen months after the entry of the criminal judgment of conviction. Therefore, since Arkansas does not have available any other procedure which would allow petitioner to present his actual innocence claim to the state courts,
13
the Court is required to consider the
*1533
merits of petitioner’s free-standing actual innocence claim.
14
See Griffin v. Delo, supra,
33 F.3d at 908 ;
Schlup v. Delo, supra,
11 F.3d at 743-44 .
Assuming federal district courts must examine such newly discovered evidence claims, must they not first decide whether that which is proffered is, indeed, “evidence,” that is, proof which, if available, would have been admissible at the original trial or would be admissible at any new trial that might be ordered? For, if what is proffered would not be admissible as evidence in a judicial trial, then it could in no event affect the outcome.
Here Mr. Pruett has written certain letters and made certain statements to his attorney and others acknowledging or suggesting that he, not Perry, murdered Mr. Staton and his daughter, Ms. Ware, on September 10, 1980, in Van Burén, Arkansas. Mr. Pruett’s statements were not made under oath. He refuses to testify or to submit himself to cross-examination on the pertinent issues. Would Pruett’s untested out-of-court statements be admissible to prove the truth of the matter asserted, that is, that he, not Perry, was the murderer? If not could his out-of-court statements be admitted for any other purpose?
When used in the context of a federal judicial proceeding, the term “evidence” applies only to proffers that qualify for admission under the Federal Rules of Evidence.
See
Fed.R.Evid. 101, 1101;
see also
Black’s Law Dictionary 656 (4th ed. 1968) (Defining “evidence” as “[a]ny species of proof, or probative matter, legally presented at trial.”); 1
McCormick on Evidence
§ 51 at 194 (John William Strong ed., 4th ed. 1992) (Defining “evidence” as the “rules and practices that make it clear when proof has been presented so that it is officially introduced and thereupon can be considered by the trier of fact.”). Since these rules apply to proceedings involving habeas corpus petitions filed pursuant to 28 U.S.C.A. § 2254 (West 1994), Fed.R.Evid. 1101(e), petitioner’s claim of actual innocence would surely be short-circuited if the proffers submitted in support of this claim do not qualify as legally admissible evidence. If petitioner’s proffers do not meet the requirements established by the Federal Rules of Evidence, then his claim for habeas relief must fail, as there would, by definition, be no newly discovered “evidence” to support his claim of actual innocence.
As has been discussed, petitioner’s actual innocence claim is based upon his assertion that another individual, Marion Pruett, was the person who in fact committed the murders for which he (Perry) was convicted. As has also been made clear, the linchpin of this claim is petitioner’s allegation that Pruett has previously confessed to these crimes. To substantiate this allegation, petitioner has, in his present petition, proffered two documents which he seeks to have considered as substantive evidence, namely: (1) a May 8, 1989 letter handwritten by Pruett, which represented not only that Pruett was the actual murderer, but also that petitioner was not directly involved in those crimes; and (2) a transcription of a July 7, 1989 interview with Pruett’s then-attorney, Brian Willett, wherein Willett revealed that Pruett had confessed, in detail, to having committed the aforementioned crimes. See Supplemental Petition for Writ of Habeas Corpus, exh. A & B
*1534
(Document No. 105).
15
In addition, this petition also represented that “Pruett is now ready, willing and able to come forward and publicly confess,” that Pruett would “testify regarding certain details of the robbery and murder[s] that only a person who was present would know about,” and that Pruett’s confession would be corroborated by additional evidence. Supplemental Petition for Writ of Habeas Corpus 5-7.
Despite these representations, Pruett repeatedly exercised his Fifth Amendment privilege against self-incrimination during the evidentiary hearing that was held in this matter, and he has continued to refuse to offer any testimony corroborating petitioner’s claim that he (Pruett) was the person who committed the above-mentioned crimes. Moreover, after the Court determined that Pruett had improperly relied upon the Fifth Amendment in declining to answer several (but not all) of the questions put to him by petitioner’s counsel, he persisted in refusing to substantively respond to most (but not all) of those inquiries, despite the Court’s ordering him to do so. As a result of Pruett’s testimony, or rather, his non-testimony, petitioner’s allegation that Pruett committed the aforementioned crimes remains supported almost entirely by his own unsworn statements and writings. However, it is clear that these two documents and the other writings by Pruett must be legally viewed as hearsay, since they are founded upon out-of-court statements
16
by a declarant (Pruett)
17
which petitioner seeks to offer as proof of the truth of the matter asserted therein (that Pruett previously confessed to the aforementioned crimes). See Fed.R.Evid. 801(c);
United States v. Hazelett,
32 F.3d 1313, 1316 (8th Cir.1994). Therefore, in so far as these documents have been offered to prove that Pruett, rather than petitioner, was one who committed the above-mentioned crimes, they cannot be viewed as substantive evidence unless they qualify for admission under some exception to the hearsay exclusionary rule. Fed.R.Evid. 802;
see Firemen’s Fund Ins. Co. v. Thien,
8 F.3d 1307 , 1311 & n. 10 (8th Cir.1993).
In the Court’s opinion, the only window through which Pruett’s former statements, as reflected in his letters and the Willett interview transcript,
18
could be reasonably viewed as potentially admissible evidence is through that afforded by the “statement against penal interest” exception to the hearsay rule. See Fed.R.Evid. 804(b)(1). As applied to this case, Rule 804(b)(3) provides that “statement[s] tending to expose the declarant to criminal liability and offered to exculpate the accused [are] not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement[s].” Thus, for the above-referenced documents to qualify for admission under this exception, petitioner must show: (1) that Pruett is “unavailable” as a witness in this matter; (2) that Pruett’s statements were in fact against his penal interest when made; and (3) that there are sufficient corroborative facts to clearly indicate that Pruett’s statements were truthful.
United States v. Hazelett, supra,
32 F.3d at 1316 (quoting
United States v. Riley, 657
F.2d 1377, 1383 (8th Cir.1981)).
*1535
As noted above, Pruett’s refusal to offer substantive testimony during the evidentiary hearing resulted from his proper exercise of his Fifth Amendment privilege against self-incrimination, as well as his decision to remain silent in defiance of the orders of the Court. Since the Court has no indication that Pruett will deviate from this pattern of conduct in the future, he is properly viewed as being “unavailable” for purposes of Rule 804(b)(3).
See
Fed.R.Evid. 804(a)(1), (2);
United States v. Woolbright,
831 F.2d 1390, 1395 (8th Cir.1987) (refusal to testify based on Fifth Amendment);
United States v. Carlson,
547 F.2d 1346, 1354 (8th Cir.1976) (refusal to testify despite court order),
cert. denied,
431 U.S. 914 , 97 S.Ct. 2174 , 53 L.Ed.2d 224 (1977). Next, the Court considers whether the statements which petitioner seeks to introduce were in fact against Pruett’s penal interest when they were made. Under Rule 804(b)(3), statements are considered to be against a declarant’s penal interest whenever “‘a reasonable person in the declarant’s position would not have made the statements] unless believing [them], to be true.’”
Williamson v. United States,
— U.S. -, -, 114 S.Ct. 2431, 2437 , 129 L.Ed.2d 476 (1994) (quoting Fed.R.Evid. 804(b)(3));
see also United States v. Hazelett, supra,
32 F.3d at 1316. On the surface Pruett’s unqualified confessions would appear to satisfy this criteria,
19
as “no other statements] [are] so much against interests as ... confession[s] of murder.”
Donnelly v. United States,
228 U.S. 243, 277-78 , 33 S.Ct. 449, 461 , 57 L.Ed. 820 (1913) (Holmes, J., dissenting);
see also Williamson v. United States, supra,
— U.S. at -, 114 S.Ct. at 2436 ;
id.
at -, 114 S.Ct. at 2438 (Sealia, J., concurring);
United States v. Bagley,
537 F.2d 162, 165 (5th Cir.1976),
cert. denied,
429 U.S. 1075 , 97 S.Ct. 816 , 50 L.Ed.2d 794 (1977);
compare United States v. Riley,
657 F.2d 1377, 1383-85 (8th Cir.1981) (confession which inculpated a third party and which was likely made to secure favorable treatment from the authorities was not truly against the declarant’s penal interest).
Here we have the declarant (Pruett) already sentenced to death. And he is also subject to additional sentences of life imprisonment. Both Pruett and his attorney, Willett, have commented that Pruett really has nothing to lose by making such statements. And his motives are clear. He seeks money and further notoriety. The Court finds that, subjectively, Pruett has no fear of, or concern about, the possible penal consequences of his statements. Does this finding permit the Court to stop at this point and simply deny Mr. Perry’s petition on the ground that there is no newly discovered
evidence
of his actual innocence? The Court cannot answer that question with any degree of confidence.
Mr. Pruett has his own habeas petition still pending. The Court must indulge the theoretical possibility that his death penalty might be set aside. While the Court does not see even the remotest possibility that, in such event, he would ever again be free, the State of Arkansas might then choose to try him for the Staton/Ware murders in an effort to obtain the death penalty. So there is some theoretical penal consequence that might be visited upon him as a result of these statements that he, not Perry, committed these murders.
In addressing the admissibility of Pruett’s prior confessions, the only question that remains is whether there is sufficient corroborative evidence to indicate that these statements were truthfully made. This inquiry requires the Court to evaluate the totality of the circumstances,
see Williamson v. United States, supra,
— U.S. at -, 114 S.Ct. at 2437 , and to determine whether the record “clearly indicate[s]” that Pruett’s confessions were truthful. Fed.R.Evid. 804(b)(3);
United States v. Hazelett, supra,
32 F.3d at 1316. While the Court of Appeals for the Eighth Circuit has established certain criteria that should ordinarily by considered when making this evaluation,
see United States v. Bobo,
994 F.2d 524, 528 (8th Cir.) (quoting
United States v. Rasmussen,
790 F.2d 55, 68 (8th
*1536
Cir.1986)),
cert. denied
, — U.S. -, 114 S.Ct. 250 , 126 L.Ed.2d 203 (1993), in the context of the present habeas petition this inquiry ultimately requires the Court to assess the merits of petitioner’s actual innocence claim.
Cf. Griffin v. Delo, supra,
33 F.3d at 906-08 ;
Schlup v. Delo, supra,
11 F.3d at 739-43 ;
cf. also Herrera v. Collins, supra,
506 U.S. at -, 113 S.Ct. at 861 . Although this conclusion is undoubtedly circular — petitioner’s actual innocence claim is based on hearsay that will be admissible only if his actual innocence claim has merit (i.e., that his claim is corroborated) — the Court believes that such a conclusion is compelled given the Eighth Circuit’s (and the Supreme Court’s) treatment of free-standing claims of actual innocence. Thus, the upshot of the Court’s extended discussion of this evidentiary issue is the conclusion that, when evaluating future free-standing actual innocence claims for habeas relief, the courts of this circuit should probably proceed directly to the merits of such claims rather than attempting to evaluate their viability under the niceties of evidence law at least until the appellate courts declare otherwise.
As a practical matter, however, this conclusion is hardly surprising. If a habeas petitioner presents a federal court with clear and convincing evidence of his or her factual innocence, and thereby establishes a due process violation,
see Griffin v. Delo, supra,
33 F.3d at 908 ;
Schlup v. Delo, supra,
11 F.3d at 743-44 , the Federal Rules of Evidence would have to be construed to allow the presentation of this evidence. Otherwise, they would have to be declared unconstitutional to the extent that they prevent the petitioner from doing so, since “the hearsay rule may not be applied mechanistically to defeat the ends of justice.”
Chambers v. Mississippi,
410 U.S. 284, 302 , 93 S.Ct. 1038, 1049 , 35 L.Ed.2d 297 (1973). Similarly, if this Court were to grant petitioner’s habeas petition on the strength of his free-standing claim of actual innocence, the state courts would be required to construe the Arkansas Rules of Evidence so as to allow petitioner to present his evidence of actual innocence upon retrial in order to prevent their evidentiary rules from being declared unconstitutional.
20
See id.
at 300-303 , 93 S.Ct. at 1048-49 ;
Turner v. Armontrout,
845 F.2d 165, 169 (8th Cir.),
cert. denied,
488 U.S. 928 , 109 S.Ct. 315 , 102 L.Ed.2d 333 (1988).
ANALYSIS
The proper standard of proof to apply in cases such as this under
Herrera
is far from clear. But regardless of which of the several possible standards is applied in this case, see discussion of law,
supra,
the Court concludes that Mr. Perry’s proof falls far short of supporting his claim of actual innocence. Indeed, the overall effect of the proof and information adduced in this habeas proceeding has been to reinforce, rather than weaken, the conclusion reached by the jury.
In cases such as this we start with the presumption of guilt since the defendant has already received a full and fair trial and has been found guilty of capital murder. This is because, as stated by Justice O’Connor, see
supra:
“Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.”
So, presumption-wise, Mr. Perry’s present position is the opposite of what it was
before
*1537
he was tried. Before he was tried he was presumed to be innocent; now he is presumed to be guilty.
THE JUDGE AS INQUISITOR
Claims of actual innocence such as the one before the Court, have a tendency to place the judge in the unfamiliar role of an investigator or inquisitor. Even though the rules place the burden of proof upon the petitioner, courts, in dealing with such a serious matter, will naturally seek certitude. For example, in this case the Court sought to obtain a transcript of the plea of Cindy Sue Brown which was entered on February 11, 1985.
21
Obviously that transcript has the potential of simplifying the factual issues before this Court. However, the Attorney General’s Office reported on March 31,1993, that, despite diligent efforts the transcript could not be located. So the obvious next question arose: could Ms. Brown be located and produced as a witness in this case? The Court is advised she “has gone with the wind.” And it might be helpful to produce FBI Special Agents Willie H. Covington and T. Scott Hendricks who interviewed Mr. Pruett back in December 1981, at the time Pruett was apparently confessing everything. His attorney at that time, Mr. Zeb Jones, and the authors of various articles found in the record are also obvious sources of useful information. Additionally, the record reflects that Mr. Pruett was in the Federal Witness Protection Program at the very time he admitted committing five murders and also at the time he claims to have committed the Staton/Ware murders. The Court made an effort to determine if the records of the Federal Witness Protection Program would reveal Mr. Pruett’s location at or around the time of the Staton/Ware murders. At one point it was suggested that those records would indicate that he was in New Mexico at that time, but later the parties were advised that such records could not fix Pruett’s location, on September 10, 1980.
22
The Court mentions these problems not to complain, but to point out the difficulties which arise when the Court ceases to rely solely upon the adversarial process and takes the initiative in its search for the truth. In this imperfect world the Court has now concluded that it should resist the obvious temptation to further “investigate the case.” Indeed, it has already gone too far in that direction. Rather, it must basically rely upon the evidence provided by the parties.
23
In every trial the factual determinations must be based upon the evidence presented. Of course, if different evidence were presented, then different factual findings might result. That is simply the way the system works. And the.Court reiterates: The burden of proof is on the petitioner.
When confronted with a habeas petitioner’s claim of actual innocence based upon, essentially, a confession by another person, it becomes necessary for the Court to assess the creditability and reliability of that purported confession (the newly discovered evidence) in the context of a careful review of
*1538
the
all
of the evidence in the state trial that led to the petitioner’s conviction, together with all relevant ancillary information. The Court has done so here. And it concludes that there is no likelihood of Mr. Perry’s innocence of the capital murders of Mr. Sta-ton and Ms. Ware.
Another observation preliminary to a review of the evidence: in the various sections that follow there will be a great deal of repetition. This is because the Court wants to make each section stand on its own as much as possible and also because the same proof must often be analyzed over and over again in relation to a variety of other evidence and a variety of different contentions.
MARION ALBERT PRUETT
Mr. Pruett has given detailed confessions to the FBI involving numerous crimes. He has also given many interviews to the media which have resulted in a number of publications about him. So we know quite a bit about him.
For our purposes we can start in March of 1978, when, at age 29, Pruett was serving a twenty-three year sentence in the federal penitentiary in Atlanta, Georgia for bank robbery and other crimes. The record suggested that he was involved in the murder of a fellow inmate, William Rhett Zambito, who had apparently testified against some underworld figures, one of whom was Allen Benton. Benton was also doing time in the Atlanta Penitentiary. The records suggest that Benton arranged for Zambito to be murdered. There appears to be some question as to who actually murdered Zambito. Pruett has played games with this issue. At times he has stated he was a witness, but he has also stated that it was he who, in fact, murdered Zambito. From all that appears, the federal prosecuting authorities were so anxious to obtain a conviction of Benton that they made a deal with Pruett to release him and place him in the Witness Protection Program if he would testify against Benton. How much of this background is true the Court cannot say, but it is clear that Pruett was placed in the Witness Protection Program in New Mexico in late 1979, provided with a new identity, “Charles Sonny Pearson” and paid a monthly stipend which one report states was $900.00 and another $700.00
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. His girlfriend, Pamela Sue Carnuteson, whom Pruett married in April 1980, was also given the false name of “Michelle Pearson.” New Social Security numbers were obtained for them.
On April 16, 1981, Pamela Sue Carnuteson’s (MicheEe Pearson) badly burned and beaten body was found by pipeHne workers near Rio Ranch. She had been struck by a hammer and there were marks of strangulation on her neck. Her body had been doused with gasoEne and torched. Pruett was arrested as a suspect but released two days later for lack of evidence. After an arrest warrant was issued on June 1, 1981, Pruett could not be found. Between that date and the date of his arrest on October 17, 1981, the known criminal activities of Marion Albert Pruett as Ested in Joint Exhibit 2, the FBI file on Pruett, are as follows:
6/26/81 Robbed the Queen City Savings & Loan, Denny Regrade Branch, Seattle, Washington, and took the bank manager hostage, who was subsequently released, in connection with the robbery. Obtained $12,400.
7/29/81 Robbed the Gibraltar Savings Association, 3717 Leopard, Corpus Christi, Texas, and took a bank teller hostage, who was subsequently released, in connection with the robbery. Obtained $6,461. 8/26/81 Robbed the Sun federal Savings & Loan, 2437 North Monroe Street, TaEahassee, Florida, and took a bank teller hostage, who was subsequently released, in connection with the robbery. Obtained $13,907.35.
9/17/81 Robbed the Unifirst Savings & Loan, Metro Center Branch, Jackson, Mississippi, and took a hostage, Peggy Lowe, Commercial Loan Officer, in connection with the robbery. Obtained $6,893. 9/17/81 Took Peggy Lowe to a wooded area in Sumter County, Alabama, and shot
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Lowe in the back of the head, which resulted in her death.
9/30/81 Robbery the Lincoln Savings Bank, Great Southern Shopping Center, Bridgeville, Pennsylvania, and took the branch manager hostage, who was subsequently released, in connection with the robbery. Obtained $7,800.
10/12/81 Robbed the Convenience Corner, Old Greenwood Road and Phoenix Street, Fort Smith, Arkansas. Took employee hostage and shot and killed her. Obtained approximately $150.00.
10/16/81 Robbed 7-11 Convenience Store, 408 Orion Court, Fort Collins, Colorado. Shot and killed store employee. Obtained approximately $28.00.
10/16/81 Robbed 7-11 Convenience Store, 1215 East Eisenhower Street, Loveland, Colorado. Shot and killed store employee. Obtained approximately $32.00.
A more detailed summary from that same report of Pruett’s whereabouts from April, 1981, until his arrest near Stratford, Texas on October 17, 1981, is quoted as follows, to wit:
April, 1981 Murders wife in Albuquerque, New Mexico
May, 1981 Believed to be in Colorado 6/26/81 Robs savings and loan in Seattle, Washington.
6/28-7/9/81 Stays in Los Angeles, California — rents and subsequently embezzles brown Ford.
7/29/81 Robs savings and loan in Corpus Christi, Texas
7/30-8/81 New Orleans, Louisiana
8/26/81 Robs savings and loan in Tallahassee, FL
8/30-9/9/81 Myrtle Beach, South Carolina
9/9-16/81 New Orleans, Louisiana — steals girl friend’s yellow Toyota on 9/16/81
9/17/81 Robs savings and loan in Jackson, Mississippi — takes Peggy Lowe hostage
9/21/81 Knoxville, Tennessee
9/24/81 Lexington, Kentucky
9/24-10/1/81 Columbus, Ohio
9/30/81 Robs savings and loan in Bridge-ville, Pennsylvania
10/1-3/81 Ypsilanti, Michigan
10/4-5/81 Knoxville, Tennessee (Holiday Inn)
10/10/81 Little Rock, Arkansas
10/12/81 Fort Smith, Arkansas — robs convenience store and kills clerk. Obtained $150.00.
10/13/81 Albuquerque, New Mexico
Leaves Albuquerque, goes to Farmington, New Mexico — 10:40 a.m., Presbyterian Medical Center
Leaves Yellow Toyota at Husky Truck Stop, Albuquerque
8 p.m. — Community Hospital Alamosa, Colorado
10/14/81 Laramie County Hospital, Cheyenne, Wyoming, and Motel 6.
10/15/81 Cheyenne, Wyoming — stayed at Motel 6
10/16/81 Fort Collins, Colorado — 3 a.m.— robs convenience store and murders clerk. Obtained $28.00.
Loveland, Colorado — 4:30 a.m. — robs convenience store and murders clerk. Obtained $32.00.
10/17/81 Lamar, Colorado — pawned diamond ring
Arrested Stratford, Texas
10/26/81 Returned to Jackson, Mississippi
10/28/81 directed law enforcement authorities to location site of Peggy Lowe’s body in Sumter County, Alabama.
Since 1981, Mr. Pruett has accumulated the following record of conviction:
Mr. Pruett was sentenced to death in Mississippi in 1982, for the murder of Ms. Lowe but that sentence was later reduced to life imprisonment.
On June 9, 1982, Pruett was convicted in Colorado of murder in the first degree of James R. Balderson; murder in the first degree of Anthony Taitt; and two counts of aggravated robbery. He was sentenced to life imprisonment on each of the murders and to sixteen years on the aggravated robbery counts, each sentence to be served consecutive to the other sentences.
Mr. Pruett was convicted of capital murder in Ft. Smith, Arkansas, on September 9,
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1982, in connection with kidnapping and murder of Ms. Bobbie Robertson and sentenced to death.
The Court was, of course, interested in obtaining information as to the whereabouts of Pruett and his wife during the period before and after the Staton/Ware murders.
The Marshal Service’s records show Albuquerque addresses for them until May, 1980, at which time they show a new address in Corrales, New Mexico. During the period from July 1, 1980, until November 1, 1980, those same records document meetings between Ms. Carnuteson (Michelle) and agents of the Marshal’s Service on the following dates: July 12, August 28, September 15, September 16, and October 22.
In that same period (July 1, 1980, to November 1, 1980) the Marshal’s records reveal the following contacts with Pruett:
07/14/80 We possess a document which indicates Mr. Pruett met briefly with one of our agents in New Orleans, Louisiana on this date. It appears Mr. Pruett was in New Orleans for a one or two day meeting with agents of the Department of Justice. 07/16/80 We possess a document which indicates Mr. Pruett met briefly with one of our agents in Albuquerque, New Mexico on this date.
08/06/80 We possess a document entitled “Criminal complaint” which states Mr. Pruett committed a crime on or about the 6th day of August, 1980 in Bernalillo County, state of New. Mexico. The “Criminal Complaint” was filed under docket number CR7259-80 on the 7th day of August, 1980. 08/29/80 We possess a document which indicates Mr. Pruett met briefly with one of our agents in Washington, D.C. on this date. It appears Mr. Pruett was in D.C. for a one or two day meeting with agents of the Department of Justice.
10/29/80 We possess a document entitled “Final Order on Criminal Complaint” which indicates Mr. Pruett pled nolo contendere on docket number CR7259-80 on this day in the Metropolitan Court, county of Bernalillo. The document indicates Mr. Pruett was placed on six months unsupervised probation.
The Staton/Ware murders occurred on September 10, 1980, some twelve days after Mr. Pruett met with agents of the Department of Justice in Washington, D.C., and some 50 days before he pled
nolo
in the metropolitan Court in New Mexico. And the U.S. Marshall's records show meetings of their agents with Michelle Pearson, Pruett’s wife, on September 15, 1980, just five days after those murders. It will be recalled that Pruett’s statements indicate that he and Michelle returned to New Mexico after the Staton/Ware murders.
CONFLICTS AND PROBLEMS
In its factual analysis, the Court must relate the alleged confession of Pruett to Mr. Perry’s testimony in this proceeding concerning his own actions, knowledge, and whereabouts in the period from late August, 1980, until his arrest on September 23, 1980, in order to determine if the two are consistent or inconsistent. And then it must compare both with the other evidence introduced at Mr. Perry’s state trial and with the other evidence and information produced during this habeas proceeding. The Court has done so. Some important generalizations arise from this analysis.
For Mr. Perry’s version to be creditable at all, it must be accepted that he is the victim of a massive conspiracy by and among Richard Anderson, Chantina Ginn, and Pat Etier to conceal the truth and to give false testimony against him.
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As will be pointed out in greater detail below, the likelihood of such a conspiracy approaches zero. At this point the court need note only certain fundamental conflicts and problems with the new PruetbPerry scenario.
Mr. Perry claims that he met Mr. Richard Anderson in Alabama early in 1980. He states that he rented to Anderson and a
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“Damon Peterson” a pop-up trailer and a car on August 30, 1980. (This weird transaction will be discussed later. See “Two Transactions” Section below.) On that occasion he states that Anderson told him that he had a girl Mend in Arkansas living with a rich jeweler and that Anderson intended to use her to help steal the man’s jewelry. The plan, according to Perry, was for Richard Anderson and Damon Peterson, after the theft, to contact Perry (standing by at his ex-wife’s home in Oxford, Alabama) who would then arrange to “fence” the stolen jewelry for them. So it is Perry’s position that he was not in Arkansas in September, 1980; that there is such a person as “Damon Peterson;” that Peterson and Anderson were going to Arkansas to engage in a jewelry heist; and that he, Perry, was to be their “fence.” Pruett has no role in Perry’s explanation of events.
Chantina Ginn testified she was working with a traveling fair in Topeka, Kansas, when she met Rick Anderson for the first time on August 29, 1980. (On another occasion she placed the date as August 31, 1980.) She then remained with Richard Anderson constantly (except for the brief hiatus when Perry and Anderson went to Van Burén) until he sent her home from Jacksonville, Florida, around September 19, 1980. Ms. Ginn unequivocally, repeatedly, and forcefully, has identified Mr. Perry as the “Damon Peterson” she and Rick Anderson met at the campground on Beaver Lake in Northwest Arkansas in early September, 1980, and with whom they traveled, along with Cindy Sue Brown, to Atlanta and then on to Jacksonville, Florida.
Richard Anderson’s testimony is in all respects “in syne” with that of Ms. Ginn. Both insist that Eugene Wallace Perry, then age 36, is the same person that they met in Arkansas at the Horseshoe Bend camping area on Beaver Lake, who introduced himself and the woman with him as “Damon and Lorili Peterson.” According to Anderson and Ginn, neither Ms. Ginn,-then 18 years of age, nor Mr. Anderson, then 23, had ever met either of these persons before. It is undisputed that the woman using the name “Lorili Peterson” is Cindy Sue Brown, who was Mr. Perry’s almost constant girl-Mend and perhaps wife, in the 1979-1980 period, right on up into July or August, 1980. He acknowledged that he lived with her “about a year” but claims they separated in July, 1980. (There is other information before the Court, including Mr. Perry’s own testimony, see below, suggesting that she was with him in August, 1980, spending time at a Georgia campground where two persons were murdered under circumstances strikingly similar to those surrounding the Staton/Ware murders. The Georgia murders occurred on August 25, 1980.) Mr. Anderson fully admits his involvement in the Arkansas crimes committed on September 10, 1980. He admitted his guilt at his own (separate) trial but denied that he was the one who actually shot Mr. Staton and Ms. Ware. He identified Perry as the murderer. Anderson also denies any involvement in the Georgia murders although he stands convicted thereof.
Mr. Perry claims to have been a Mend and associate of “Damon Peterson”. According to Mr. Perry, “Damon” worked for J.Y. Stovall’s various businesses just like Perry did. Until Pruett’s “confessions” entered the picture, it was Perry’s position that Damon Peterson must have committed the Sta-ton/Ware murders and that he, Perry, was simply not Damon Peterson. How does Perry explain his long standing girlMend’s (Cindy Sue Brown) being with Damon Peterson in Arkansas? He theorizes that when he and Cindy Sue broke up in July or August, 1980, she might naturally take up with a Mend of his to make him angry.
Cindy Sue Brown, who was a fugitive for several years, pled
nolo contendere
in 1985 to her involvement in the Arkansas crimes. Although Cindy Sue Brown cannot presently be located, the record reflects that she has given statements identifying herself and Mr. Perry as the persons representing themselves as “Damon and Lorili Peterson” in Northwest Arkansas in the September 6-11 period. See,
infra.
The State also represents that Ms. Ginn identified pictures of Cindy Sue Brown as “Lorili.” And Mrs. Staton has identified Ms. Brown and Mr. Perry as the two persons who spent time in the Jewelry Store on September 3, 1980.
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Ms. Pat Etier, who lived in the small community of Graphic near Mountainburg, Arkansas, at the time, testified concerning her involvement with Rick Anderson and the man identifying himself as “Damon” on September 9 and September 10, 1980. She stated that she met them for the first time in her life on September 9 and saw them the last time (before their apprehension) on September 10, 1980. Her testimony will be set out in more detail below. For present purposes, suffice it to say, that she spent the night of September 9 with “Damon” at her home and returned him to the Terry Motel at around 8:00 a.m. on September 10, 1980. She contacted the police on September 11, 1980, as soon as she heard of the Staton/Ware murders, and provided them with descriptions of the two men. At trial she strongly and positively identified Mr. Perry as the “Damon” with whom she had been on September 9 and September 10 and as the man with whom she slept at her home at Graphic on the night of September 9.
All in all, some 7 witnesses identified Mr. Perry as having been in the Beaver Lake area or the Van Burén, Arkansas, area at various times between September 3, and September 11, 1980.
TESTIMONY OF MR. PERRY
Mr. Perry did not testify in his state court capital murder trial, but he did testify in this habeas proceeding. And the Court has found in the record reports of other statements made by Mr. Perry since the Sta-ton/Ware murders on September 10, 1980.
The Court will summarize the important portions of Mr. Perry’s testimony and attempt to relate that testimony to the other proof in the case. And then it will make its own assessment of the credibility of Mr. Perry.
Perry testified that he knew Damon Peterson who was “Basically a courier at the same place I was ... that is we drove cars to various places, worked with the same people” among whom were J.B. Stovall, Charles Bryant and Jack Roberts of Atlanta. He states he (Perry) was “into the distribution and transportation of narcotics” and was a drug user.
Perry’s testimony about his connection with Mr. Anderson is revealing. It must be recalled that Anderson has testified many times, and again in this habeas proceeding, that he first met Perry, who identified himself as “Damon Peterson” around September 6, 1980, at the Campground on Beaver Lake in Northwest Arkansas.
Perry, on the other hand, says that he met Anderson for the first time in January or February of 1980 at the Windsor Wood Apartments on the outskirts of Gadsden, Alabama. He next met him at Bill’s Go-Go Bar. He states that he introduced himself to Anderson using his true name, Gene Perry. He states his next contact was when Anderson drove him to Knoxville from Birmingham, Alabama, in March 1980. The only other time he claims to have seen Mr. Anderson before the Staton/Ware murders was on August 30, 1980, at Babe’s Bar when he states he transferred a camper and a car to Damon Peterson and Anderson. This testimony will be discussed later but, first, the Court will attempt to account for Mr. Perry’s whereabouts prior to August 30, 1980.
Perry testified that from early 1980 until J.B. Stovall died on July 25, 1980, he lived at Stovall’s home on Elm Street in Hapeville, Georgia, a suburb of Atlanta. He says that “soon thereafter is when I moved to the Camper’s Paradise Campground” which is also on the outskirts of Atlanta. He also admits that he stayed there at least a month, maybe six weeks. He testified he left the Paradise Campground on August 22, 1980, which is three days before the double murders at that campground.
According to Perry, Cindy Sue Brown stayed with him at the Georgia campground but was not there with him the last three or four weeks of his stay.
Perry acknowledged that he had the 1971 blue and white Cadillac with him at the Paradise Campground in Georgia (along with a “pop-up camper”) and that it was the same car that ended up in Northwest Arkansas in September, 1980, in the possession of “Damon and Lorili Peterson.” He does not know who they got the car from. He believes it belonged to J.B. Stovall or Damon
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“or something.” He then states “it may have belonged to someone else. I think it belonged to Tom Brackett.” (This backing and filling in quite typical of Mr. Perry’s testimony before this Court.)
We have now found in the transcript of Mr. Anderson’s Georgia trial an FBI report on an interview of Mr. Perry conducted just 20 days after the Staton/Ware murders. The entire statement reads as follows:
On Tuesday, September 30, 1980, Special Agent Hardin and Detective Sgt. Tommy Nations interviewed Eugene Wallace Perry, white male, d.o.b. 7/8/44, at the Duval County Jail in Jacksonville, Florida.
Mr. Perry told the investigators that he had lived at Camper’s Paradise in Tyrone, Georgia from June, 1980 until August, 1980. Perry said while living at Camper’s Paradise, he was known as Jim Jackson, Pop-Up Jim and Fro.
Perry said he knew Barbara and Allen Price very well. Perry said Barbara Price knew that he was a fugitive from justice, but she never tried to obtain any information about his past. Perry said Barbara Price knew the name Jim Jackson was an assumed name, but she never questioned him about it.
Perry told the investigators the white female who stayed at Camper’s Paradise with him, who was known as Sandy, was hi wife. Perry said her real name was cindy brown, but failed to elaborate on Cindy Brown’s past.
When questioned about Richard Anderson, Perry said Anderson had never been to Camper’s Paradise.
Perry said he had gotten together with Anderson after he had left Georgia, but would not say where he had joined up with Anderson
Perry said he left Camper’s Paradise on Saturday, August 23, 1980. perry said he would have left he park three weeks sooner, but Barbara Price had asked him to stay because of a van show, which was coming to the Park. Perry said Barbara Price told him he could make some real good money selling drugs to the people in the van show. Perry said he remained at the park and sold cocaine and marijuana to people at the Park during the van show and split the profits with Barbara Price.
Perry said Barbara Price smoked marijuana. Perry said he supplied Barbara Price with most of the marijuana that she smoked.
Perry said he would not relate to the investigators his activities after he left Camper’s Paradise on August 23, 1980, because he felt it could be incriminating.
When questioned about the Price murders, Perry said he was embarrassed that peopled thought he was involved. Perry said that he had been close to both Barbara and Allen Price and could not imagine who would have killed them.
When asked if he would take a polygraph in reference to the murders in Fayette County, Perry said he would not. Perry said the reason for not wanting to take a polygraph was that a polygraph could be manipulated anyway the police wanted it to be.
Perry said his attorney, George Simms from Talladega, Alabama, was the only person he trusted, and that if Simms arranged the polygraph and agreed for him to take it, he would.
Perry said he had been in a considerable amount of trouble in Anniston, Alabama and had served time in Alabama on Armed robbery and drug charges.
Perry said he had been in the drug business primarily and had made $150,000.00 in 1979 selling cocaine.
When questioned about Charles T. Bryant, white male, d.o.b. 2/9/77, and Ruban Deese, white male, Perry said he thought of Bryant as a father figure. Perry said he had first met Bryant four or five years ago.
Perry said he met Bryant through J.B. Stovall, white male, age 53. Perry said Stovall was deceased. Perry said Stovall had died from Cirrhosis brought on by drinking to much.
Perry said he knew Ruban Deese, but not as well as Bryant. Perry said he was well acquainted with everyone on Stewart Avenue.
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Perry was questioned about Bobby Joe Upton and Ted Griffith.
This statement was offered by the defendant Anderson but excluded by the Court.
And we have found Ms. Cindy Sue Brown’s statement made upon her admission to the Arkansas Department of Corrections in 1985, after her
nolo
plea to her own involvement in the Van Burén crimes. That statement fits well with other testimony showing that Perry and Cindy Sue Brown entered and “cased” the Staton Jewelry Store on September 3, 1980, one week before the murders, and then went up to the Beaver Lake Campground in Northwest Arkansas where they first came in contact with Richard Anderson and Chantina Ginn.
So we have Perry testifying that he left the Paradise Campground in Georgia on August 22,1980, and telling the FBI that he left on August 23, 1980. We have several statements of Ms. Brown stating Perry committed the Georgia murders on August 25, 1980. We have Ms. Brown’s guilty plea to her involvement in the Georgia Crimes. We have Ms. Brown putting herself and Perry in Van Burén, Arkansas in the first few days of September and then a few days later at the campground on Beaver Lake. We have statements by her corroborating the testimony of Ms. Ginn and Mr. Anderson on the events after the Arkansas crimes including the trip from Arkansas to Georgia and from there to florida. But we also have additional information which tends to account for Mr. Perry’s and Ms. Brown’s whereabouts for part of the period between August 25 and August 30, 1980. See discussion under section on “Camping Registration Forms,” below.
In the Georgia trial of Mr. Anderson, three registration slips were introduced into evidence by a Mr. Harper, the owner of the Nanade Creek Camp Ground in Meridian, Mississippi. He testifies that on August 27, 1980, a “Lori Peterson” registered at the campground. She was accompanied by one male. They were driving a 1971 Cadillac with a pop-up camper. The three registration slips cover the date of August 27 to August 30. Each slip refers to a Cadillac with Georgia tags TG-563, the third letter being difficult to read. (The user permits issued by Horseshoe Bend Recreation area in Northwest Arkansas on September 6, and September 8 show the license as “TGM-593” and one gives the state as “GA”.) Mr. Harper, when shown a picture of the “the boy they call Richard” (Anderson), stated he had never seen that man. If Cindy Sue Brown (“Lori Peterson”) and Perry were in Meridian, Mississippi from August 27 until August 30 this would be inconsistent with Perry’s testimony as to his whereabouts in that period. Further, if they had the ’71 Cadillac on that date, that would be inconsistent with Perry’s testimony that he returned the Cadillac upon leaving the Georgia campground. And it would also the contrary to his testimony that he broke up with Cindy Sue Brown in July 1980. It also easts a big shadow over his testimony about meeting with “Damon” and Anderson on August 30,1980, and selling or “renting” to them the camper and an automobile.
When Mr. Perry was trying to explain the August 30, 1980, transaction, See “Two Transactions” Section, below, he was asked how he arranged to meet with “Damon” and Anderson on that date. To get the flavor of Perry’s testimony, we quote his response at length:
Q. I understand that, but let me stop you and back up because my question was aimed at finding out how you made arrangements to meet Anderson and Mr. Peterson at Babe’s Bar. Did you receive a phone call somewhere or letter, or how did you know to go there?
A. Yes I did. Damon Peterson knows Turkey Collins.
Q. Okay.
A. And he had called there to get in touch with me. When I had left my parents’ house in Alabama on the 26th, I guess it was — maybe the 25th or 26th.
Q. Of August?
A. Right. I had received a phone call from Jack Roberts, and I was told by him to stay out of the Georgia area. I had instructed him at that time where I was going, which was to the Black Fox campground.
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Q. The what?
A. Black Fox campground.
Q. Where was that?
A. The extreme outskirts of Knoxville .. It wouldn’t be in Knoxville anymore. It would be probably in Maryville, Tennessee.
Q. All right.
A. And I told him that I would go there and stay, and his advice to me was to lay low, which I was doing. And then I went to see a couple of friends while I was there. I went by Turkey Collins’ house. At that time I had a message from Damon that he had to talk to me. It was at this point in time that I told him I would be coming back through Gadsden, Alabama. So he knew that I was coming there to Frank King’s apartment.
Q. So did you make arrangements to meet at Babe’s Bar, or did he call you at Frank King’s house?
A. I don’t remember the specific arrangements that we made and what we discussed, but I know that he knows that I was there, and that’s how we met up. But when we met up, I was just going down Megan Boulevard, I think is the title of it, and both of them were on their motorcycles. Damon on the Honda and Rick on his Harley, and I told them then that I was going to Babe’s Bar, so when I pulled in they just pulled in behind me.
Q. So you just happened upon them on them street?
A. Yes, sir.
Q. And that’s how you arranged this meeting?
A. Yes, sir. They were already there looking for me.
Q. Tell me this: Who is Turkey Collins? Is he a courier for illegal activities or a friend of yours or what?
A. No, he’s not a courier or anything. He’s just a friend.
Q. And you said that he knows Damon Peterson or knew him?
A. Yes, sir.
Q. Did you tell your attorneys about Turkey Collins.
A. No sir, I did not.
Mr. Perry was asked about the camper he was “renting” to Damon and Anderson:
THE COURT: You said you had used this camper before.
THE WITNESS: Yes, sir.
THE COURT: For several months, did you say.
THE WITNESS: Yes, sir.
THE WITNESS: Camping.
THE COURT: Where would you take it?
THE WITNESS: This was my connection, sir, to the Campers’ Paradise, which has been referred to here as the double murder in Georgia. I had camped there at that campground.
THE COURT: An account?
THE WITNESS: I had camped there at that campground. I think from about the middle of July to August, but I am not real sure. I only know the date that I left there, which was the 22th, and that was pinpointed for me by GBI officials.
THE COURT: They told you you left there on August 22.
THE WITNESS: Yes, sir.
THE COURT: How did they fix that date?
THE WITNESS: I suppose by the witness accounts of people that they interviewed.
As a result of the August 30,1980, transaction, Perry says he got the use of the Honda motorcycle Damon had been riding. He states he drove the Honda to Frank King’s trailor where he parked it. “We then got in his (King’s) car and continued to party in Gadsden, Aabama “until the next day, Labor Day.” Then what?
THE COURT: And where did you go then?
THE WITNESS: At that particular time I carried the motorcycle back through the back woods through Cedar town — instead of going the Interstate I went through the back woods through Cedar Town and wen
This text is long and has been trimmed here. Open the source document for the complete record.