Smith v. Baldwin

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER PAUL SMITH,  No. 04-35253

Petitioner-Appellant,

v.  D.C. No.

CV-98-00059-OMP

GEORGE H. BALDWIN,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior Judge, Presiding

Argued and Submitted

June 18, 2007—San Francisco, California

Filed December 26, 2007

Before: Alex Kozinski, Chief Judge, and

Mary M. Schroeder, Stephen Reinhardt, Andrew J. Kleinfeld,

Sidney R. Thomas, M. Margaret McKeown,

Kim McLane Wardlaw, William A. Fletcher,

Raymond C. Fisher, Richard A. Paez, Richard C. Tallman,

Richard R. Clifton, Jay S. Bybee, Milan D. Smith, Jr. and

Sandra S. Ikuta, Circuit Judges.

Milan D. Smith, Jr., Circuit Judge, delivered the opinion of

the court, in which Kozinski, Chief Judge, and Kleinfeld,

McKeown, Wardlaw, Tallman, Clifton, Bybee and Ikuta,

Circuit Judges, join.

Raymond C. Fisher, Circuit Judge, filed a concurring

opinion, in which Schroeder, W. Fletcher, and Paez,

Circuit Judges, join.

16637

16638 SMITH v. BALDWIN

Stephen Reinhardt, Circuit Judge, filed a dissent, in which

Thomas, Circuit Judge, joins.

Sidney R. Thomas, Circuit Judge, filed a separate dissent.

16642 SMITH v. BALDWIN

COUNSEL

Thomas J. Hester, Office of the Federal Public Defender,

Portland, Oregon, for the petitioner-appellant.

Kathleen Cegla, Assistant Attorney General; Erin C. Lagesen,

Assistant Attorney General (argued), Salem, Oregon, for the

respondent-appellee.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

We took this case en banc to correct a misconstruction of

the Schlup v. Delo, 513 U.S. 298 (1995), “actual innocence”

“gateway” by a divided panel of this court in Smith v. Bal-

dwin, 466 F.3d 805 (9th Cir. 2006), reh’g en banc granted,

482 F.3d 1156 (9th Cir. 2007). The panel erroneously held

that Petitioner-Appellant Roger Paul Smith could satisfy the

“actual innocence” standard to overcome “a procedural

SMITH v. BALDWIN 16643

default of his claims insofar as they relate to his felony mur-

der conviction,” thus permitting him to proceed with his con-

stitutional claims. Smith, 466 F.3d at 807. We disagree, and

we affirm the decision of the district court.

While burglarizing the home of Emmett and Elma Konzel-

man, either Smith or his criminal companion, Jacob Edmonds,

bludgeoned eighty-seven-year-old Mr. Konzelman to death

with a three-foot long crowbar. After Edmonds told police

that Smith killed Konzelman, the prosecution offered

Edmonds a plea deal contingent on his passing a polygraph

examination. The results of the polygraph test were inconclu-

sive, but the examiner opined that Edmonds had answered the

questions truthfully and Edmonds entered the plea deal in

exchange for his testimony against Smith. Despite Smith’s

request, the prosecution did not reveal the results of

Edmonds’s polygraph.

Believing that Edmonds had passed the polygraph exami-

nation, and knowing that Edmonds would testify against him,

Smith entered a no contest plea to felony murder and first-

degree robbery. Edmonds has now changed his story and

claims that Smith did not kill Mr. Konzelman. Edmonds is

unwilling to testify on Smith’s behalf, however, because the

state has informed him that he will be prosecuted for the capi-

tal murder of Mr. Konzelman if he insists on claiming that

Smith was not the person who wielded the lethal crowbar.

Smith asserts that the state’s actions constitute prosecutorial

misconduct, and he argues that his failure to exhaust his state

court remedies should be excused because Smith can show

actual innocence, as well as cause and prejudice.

Although the resolution of these issues is not essential to

our analysis, in order to more clearly demonstrate Smith’s

inability to meet his evidentiary burden, we assume without

deciding that two of Smith’s arguments have merit: (1) the

state committed prosecutorial misconduct by threatening to

prosecute Edmonds for capital murder if he testified on

16644 SMITH v. BALDWIN

Smith’s behalf; and (2) the proper remedy for the prosecu-

torial misconduct is to compel the state to grant use immunity

to Edmonds in an evidentiary hearing where Edmonds would

testify that he, not Smith, killed Emmett Konzelman.1 We do

not assume, and we expressly reject, the Smith panel majori-

ty’s decision to treat Edmonds’s affidavits as “credible, for

purposes of resolving the question whether Smith’s proce-

dural default should bar him from presenting his habeas

claims on the merits.” Smith, 466 F.3d at 828. Even indulging

the two cited assumptions, however, we conclude that Smith

has not satisfied the requirements of Schlup’s actual inno-

cence exception with respect to his conviction for felony mur-

der. We also hold that neither the actions of Smith’s first state

post-conviction trial counsel nor the state’s withholding of the

results of Edmonds’s polygraph examination constitute suffi-

cient cause and prejudice to excuse the procedural default

resulting from Smith’s failure to exhaust his state remedies.

I. Facts and Procedural Background

During the early morning hours of April 4, 1989, after

snorting methamphetamine, Smith, Edmonds, and Arlen Bouse2

decided to steal enough money or property to enable them to

purchase tickets for a rock concert the following night. The

group drove around several neighborhoods in Edmonds’s

truck searching for a good target. Ultimately, they discovered

a house with the garage door open belonging to Emmett Kon-

zelman and his wife, seventy-four-year-old Elma.

After parking Edmonds’s truck near the Konzelmans’ resi-

1

We do not endorse the three-judge panel majority’s novel addition to

our requirement that the prosecution grant use immunity, but merely

assume it to show that even under this more stringent standard we must

affirm the district court.

2

The record is unclear as to whether Mr. Bouse’s first name is “Arlen”

or “Marlin.” The district and magistrate judges both used “Arlen,” but the

sentencing transcript from the state court used “Marlin.”

SMITH v. BALDWIN 16645

dence, all three men entered the garage. While in the garage,

Smith inadvertently caused the door connecting the garage to

the house to slam shut. Startled, the group fled from the

garage and Bouse was separated from Smith and Edmonds.

Bouse took a beer, a hat, and gloves from the garage and

returned to the truck to await Edmonds and Smith. Bouse

waited at the truck, but Edmonds and Smith did not return for

approximately forty-five minutes.

Although accounts of what happened next occasionally

conflict, testimony of several witnesses establishes all the fac-

tual elements essential to our analysis. Smith and Edmonds

returned to the Konzelman residence and burglarized the

house. Before entering the house, Smith and Edmonds spent

some time in the garage. While there, they found two hats to

wear as disguises. One man wore a baseball cap or a skull cap

and the other wore a fedora hat. Smith and Edmonds also tied

bandannas over their faces while in the garage. Both Smith

and Edmonds wore gloves, though it is unclear what kind and

how many. Edmonds stated that he wore white latex gloves

while Smith wore a pair of black leather gloves. Smith, how-

ever, has stated that he wore either one or two brown work

gloves. In the garage, Smith and Edmonds also found a three-

foot-long crowbar and a rope.

Edmonds provided extensive testimony about what hap-

pened in the Konzelmans’ residence at Smith’s sentencing

hearing (Sentencing Hearing) on November 6 and 7, 1989.

Smith’s attorney cross-examined Edmonds at the Sentencing

Hearing.

Q. Who turned the light on?

A. Mr. Smith.

Q. Where were you when he turned that light on?

A. Standing in the doorway.

16646 SMITH v. BALDWIN

Q. Both of you were standing there in the door-

way?

A. Right.

Q. Who had the crowbar?

A. Mr. Smith.

Q. What did you have in your hand?

A. A rope.

Q. Why did you take the rope into the bedroom?

A. In case they woke up and tried to call the cops

or something.

Q. As the light was turned on, what did you see

Mr. Smith do regarding the two people in the

room, the other two, Mr. and Mrs. Konzelman?

A. I seen him just, ah, tell ’em to wake up.

Q. You heard that?

A. Yeah.

Q. Did you see them appear to wake up?

A. I seen Mrs. Konzelman appear to wake up,

yeah.

Q. Did you see Mr. Konzelman?

A. He didn’t wake up right away, so Mrs. Konzel-

man woke him up.

SMITH v. BALDWIN 16647

Q. What happened next?

A. He started to get up and Mr. Smith said to lay

back down.

Q. Do you remember how he said that?

A. “Lay back down, old man.”

Q. Did Mr. Konzelman lay down?

A. No. I don’t think he heard him.

Q. What did you see Mr. Smith do then?

A. I seen him make a threatening gesture with the

crowbar first.

Q. And then after he made the gesture what did he

do?

A. I don’t know. I said, “I’m getting the fuck out

of here.”

Q. While you were in the—still in the room, Mr.

Edmonds, did you see anybody hit with that

crowbar?

A. No.

Q. Did you leave the room or did you stay?

A. I left the room.

Q. How far away did you go?

A. Garage.

16648 SMITH v. BALDWIN

A. How long were you gone?

A. Couple minutes, waiting for him to follow me.

Q. Did he follow you out?

A. No.

Q. What did you do then?

A. I went back in to get him.

Q. When you came back in the bedroom, what

happened that you could see when you came

back in the bedroom?

A. I seen Mr. Konzelman laying on the floor.

***

Q. Where was Mrs. Konzelman?

A. Laying on the bed.

Q. Did it appear that anything had happened to

either one of those people while you were

gone?

A. Mrs. Konzelman, I couldn’t tell. Mr. Konzel-

man, there was blood on the bed.

Q. While you were there in the bedroom did you

see Mr. Konzelman move?

A. Yeah, he got back up on the bed.

Q. As he was doing that, what happened?

SMITH v. BALDWIN 16649

A. Nothing. He just got back up on the bed and

him and he [sic] wife laid together.

Q. Did you see anybody hit after that?

A. No.

Q. When Mr. Konzelman crawled back on the bed

did he appear to have been injured?

A. Yeah.

Q. Why?

A. I don’t know. He just had a lot of blood all over

him.

Q. Did there appear to be blood more in one place

than any other place?

A. Yeah, the head.

****

Q. When you first went into the room it didn’t

appear that either one of those people were hurt

or injured when the light first came on?

A. No, they just looked scared.

Q. You saw him gesture toward them, I think was

your term? You left the bedroom.

A. Yeah. I said, “Let’s get the fuck out of here.”

Q. Did Mr. Smith say anything; did he reply to

your statement, “Let’s get out of here?”

16650 SMITH v. BALDWIN

A. No I didn’t give him time. I was gone.

Q. He could have said, “I’m coming.”

A. He didn’t say anything like that.

Q. But you didn’t hear anything?

A. Right.

Q. You said in the garage and coming back, then

you noted there was injuries?

A. Yeah.

Q. At least a lot of blood on the bed?

A. Yes.

Q. And blood on Mr. Konzelman?

A. Right.

Q. Was there anybody else in the house besides the

two Konzelman’s and you, and Roger Smith?

A. No.

Mrs. Konzelman testified at the same hearing, confirming

many of the details of Edmonds’s testimony.

Q. After he had come to bed what was the next

thing you knew that was going on that wasn’t

suppose to be happening?

A. That man standing in my bedroom looking at

me.

SMITH v. BALDWIN 16651

Q. At that time, Mrs. Konzelman, do you remem-

ber one man or two men?

A. There were two men.

Q. Where in your bedroom were they, Ma’am?

A. One was in front of the dresser, the other was

in the door.

****

Q. Was the light on or off at that time, Ma’am?

A. I can’t tell you that.

Q. At least there was two men. The light must have

been on.

A. I can—I could tell—I could see plainly.

Q. When no one answered, did you check to see if

your husband was there with you?

A. I did.

Q. Where was he?

A. He was still asleep right beside me.

Q. As far as you can remember—would you tell

the Judge what you remember next happening

with these two men and with you and your hus-

band?

A. Well, apparently my husband moved as if he

were going to—after I awakened him, as if he

were going to do something and the guy said,

16652 SMITH v. BALDWIN

“Lay down old man.” And that’s about my last

memory. Until I felt (indicating) a hit across my

forehead.

The police later found the crowbar in the kitchen and the

rope in the bedroom. After the beating, Elma Konzelman lay

motionless in her bed until convinced the burglars had left the

house. She climbed out of bed and when she realized that the

intruders had disabled her phones she found her cane and

slowly made her way to a neighbor’s house to call for help.

Paramedics arrived quickly and rushed the Konzelmans to the

hospital. Elma Konzelman required surgery to implant a metal

plate in her head, but she survived. Emmett Konzelman died

approximately sixteen hours later as a result of his injuries.

Shortly after the attack on the Konzelmans, while the police

were interrogating Edmonds about an unrelated offense,

Edmonds mentioned that he had attended a Judas Priest con-

cert. An alert police officer recalled that a ticket stub from the

same concert was found in the street near the Konzelman resi-

dence on the morning following the burglary. Further investi-

gation revealed that the ticket stub belonged to Edmonds and

he confessed to participating in the burglary. Edmonds identi-

fied Smith and Bouse as his criminal companions and he

stated that Smith entered the Konzelmans’ bedroom and beat

them with the crowbar. Based on Edmonds’s description of

the events and his apparent credibility,3 as well as Mrs. Kon-

zelman’s statements to police and Smith’s history of violent

crime, police charged Smith with aggravated murder, felony

murder, burglary, two counts of robbery, and two counts of

assault.

Because Edmonds provided a statement indicating that

3

When police told Edmonds that they found his ticket stub at the scene,

he put his head down on the table and began to cry. In addition, Edmonds

made statements to his cellmate in prison that corroborated the version of

events Edmonds gave to the police.

SMITH v. BALDWIN 16653

Smith beat the Konzelmans, the state offered him a plea

agreement contingent on his passing a polygraph examination.

The results of the polygraph were inconclusive, but the exam-

iner stated that he believed Edmonds had answered the ques-

tions truthfully. As a result, the state entered a plea agreement

with Edmonds. Smith believed that Edmonds had passed the

polygraph and requested a copy of the results. The prosecu-

tion refused to give Smith the polygraph results, however,

because it believed that it could not admit the polygraph

results as evidence at trial and, thus, it was not required to

share them with Smith.

Smith faced prosecution for capital murder and he knew

that Edmonds would testify against him. Instead of proceed-

ing to trial, Smith elected to enter a plea agreement whereby

he pled no contest to felony murder and one count of robbery.

The state agreed to drop the remaining charges against Smith.

At Smith’s insistence, the state also dropped charges of hin-

dering prosecution against Jeanne Simons, Smith’s girlfriend,

whom Edmonds had previously implicated in the crime.

Although his attorney indicated that he was on some kind of

“mild sedative or tranquilizer” during the plea hearing, when

questioned by the judge, Smith replied that he did not feel

affected by the medication and that he understood what was

going on around him. After thoroughly reviewing the charges

and likely sentence with Smith, the court accepted Smith’s

plea. The sentencing judge stated that the evidence in the

record was sufficient to satisfy him that Smith “caused the

assault” and he imposed a life sentence with a minimum term

of 30 years in prison.4 Thereafter, Smith filed unsuccessful

direct appeals with the Oregon Court of Appeals and the Ore-

gon Supreme Court.

Smith then filed a petition for post-conviction relief in the

Oregon Circuit Court. He claimed (1) ineffective assistance of

4

Smith does not challenge his sentence in the current federal habeas

petition.

16654 SMITH v. BALDWIN

counsel because his trial lawyer failed to properly advise him

of potential defenses and “hounded” Smith into pleading no

contest, and (2) a violation of his due process rights both

because Edmonds’s plea bargain wrongfully exposed Smith to

“greater consequences for his acts than are legally justifiable”

and because Smith was on drugs when he entered his plea,

thus rendering it unknowing and involuntary, notwithstanding

his contemporaneous report that he felt unaffected by the

drugs. The Oregon Circuit Court denied Smith’s petition on

the merits and also denied his request for appointment of new

counsel.

The Oregon Court of Appeals appointed new counsel for

Smith. On appeal, however, Smith argued only that the Ore-

gon Circuit Court that heard his post-conviction claims should

have appointed new counsel for him; he did not challenge the

denial of his substantive post-conviction claims on the merits.

The Oregon Court of Appeals affirmed without opinion the

Circuit Court’s refusal to appoint new counsel for Smith and

the Oregon Supreme Court denied review. Accordingly,

Smith never presented his substantive post-conviction claims

to the Oregon Supreme Court, and thus they are procedurally

defaulted.

Meanwhile, Edmonds completed his sentence for the Kon-

zelman robbery and was released from prison. In 1992,

Edmonds was arrested on various charges of rape, sodomy,

and kidnapping with a firearm, to which he pleaded no contest

and was sentenced to life in prison.

On February 16, 1996, Edmonds signed an affidavit read-

ing, in pertinent part:

On April 4, 1989, myself, Roger Smith and Arlen

Bouse were involved in a residential burglary. On

the above date mentioned Emmit Konzleman [sic]

was bludgeoned to death at the adress [sic] of 3030

South Shore Drive, Albany, OR.

SMITH v. BALDWIN 16655

After all incidents occured [sic] and I had been

apprehended and taken into custody. [sic] I stated in

a sworn statement that Roger Smith was my code-

fendent and had in fact bludgeoned Emmit Konzle-

man [sic] to death.

I would like to, for the record [sic] retract that

statement. Roger Smith did not kill Emmit Konzle-

man. [sic]

I am confessing right now that I committed pur-

gory [sic] with full knowledge of the consequences.

The reason I lied under oath was because my

attorney of record at the time Thomas Hill led me to

believe that Roger Smith was about to testify and

leave me to do a life sentence for a crime I did not

commit.

The only way for me to set the record straight is

to write this confession now.

Based on Edmonds’s recantation, Smith again sought post-

conviction relief in state court claiming that the recantation

constituted new exculpatory evidence. Smith also claimed that

his due process rights were violated because his trial counsel

failed to explain the difference between aggravated murder

and felony murder, and, given his below-average intelligence

and his use of drugs, the trial court further failed to adequately

explain the charges against him. The Oregon Circuit Court

granted summary judgment for the state and Smith appealed.

While the appeal was pending, Smith filed a motion for vol-

untary dismissal, apparently because he grew frustrated with

his attorney and the delays caused by the court granting exten-

sions of time. The court granted Smith’s motion for voluntary

dismissal of his state claims and Smith turned to federal court.

In 1997, Smith filed a petition for writ of habeas corpus in

the federal district court. Smith raised four substantive claims

16656 SMITH v. BALDWIN

in his federal habeas petition: (1) the plea resulting in his con-

viction was not knowing and voluntary; (2) ineffective assis-

tance of counsel during the investigative and trial preparation

stages of his case; (3) ineffective assistance of counsel during

the plea negotiation/entry stage; and (4) ineffective assistance

of counsel in hearings before the Oregon Circuit Court.

While Smith’s federal habeas petition was pending, he

received another affidavit from Edmonds, dated July 24,

2001. That affidavit reads in pertinent part:

1. On April 4, 1989, I participated in a residential

burglary at 3030 Southshore Drive in Albany,

Oregon, along with Roger Smith and Arlen

Bouse.

2. I clearly recall the events relating to the burglary

and this affidavit is based entirely on my first

hand knowledge of those events.

3. During the course of the burglary, an elderly res-

ident of the home, Mr. Emmit Konzleman [sic],

was bludgeoned to death.

4. In the underlying prosecution of Mr. Smith and

myself, I falsely stated, under oath, that Mr.

Smith had bludgeoned Mr. Konzleman [sic],

when in fact I knew that he had not.

5. I recognize that my false sworn statement was

an act of perjury, and I acknowledged this when

I sent a sworn recantation to the Linn County

District Attorney in 1996.

6. I know that Mr. Smith did not bludgeon or oth-

erwise strike Mr. Konzleman [sic] and I know

that Mr. Smith never entered the Konzleman’s

bedroom, where the killing occurred.

SMITH v. BALDWIN 16657

7. I was motivated to falsely implicate Mr. Smith

because my trial attorney and others counseled

that, by doing so, I could avoid prosecution for

murder or aggravated murder.

8. As a part of my plea agreement in the underly-

ing case, I was required to take a polygraph con-

cerning the murder and I was told that I neither

passed or failed that test but that the results were

inconclusive.

After receiving the new affidavit from Edmonds, Smith

amended his federal habeas petition to include two additional

claims: (1) Smith’s conviction was unconstitutional because

he was actually innocent of felony murder; and (2) Smith’s

due process rights were violated under Brady v. Maryland,

373 U.S. 83 (1963), when the prosecution made a deal with

the actual killer and failed to produce the results of

Edmonds’s polygraph test when requested.

After receiving a copy of Edmonds’s second affidavit, a

state prosecutor met with Edmonds and his newly appointed

counsel. The prosecutor informed Edmonds that if he insisted

on testifying in accordance with his recantations, the state

would seek to set aside his plea agreement in this case, sub-

jecting Edmonds to capital murder charges for killing Emmett

Konzelman. If, however, Edmonds reaffirmed his original tes-

timony identifying Smith as the killer, the state would agree

not to pursue perjury charges based on the contents of the

affidavits. Edmonds conferred with counsel and decided to

invoke his Fifth Amendment rights and refused to testify.

Smith argued that the state’s actions constituted prosecu-

torial misconduct intended to distort the fact-finding process

and he requested that the federal district court order an evi-

dentiary hearing and compel the state to grant use immunity5

5

When a witness receives a grant of use immunity, “while the govern-

ment may prosecute the witness for an offense related to the subject matter

16658 SMITH v. BALDWIN

to Edmonds under United States v. Westerdahl, 945 F.2d 1083

(9th Cir. 1991). The federal district court rejected Smith’s

claim of prosecutorial misconduct and denied his request for

an evidentiary hearing. The district court held that it was

unable to reach the merits of Smith’s habeas petition because

Smith had failed to exhaust his claims in state court. The dis-

trict court also concluded that Smith’s failure to properly

exhaust his state court remedies constituted procedural

default, which Smith could not overcome because he had

failed to demonstrate either actual innocence or cause and

prejudice. Smith appealed to this court.

A majority of a three-judge panel of this court held that

“because prosecutorial misconduct in connection with his fed-

eral habeas proceedings seriously interfered with Smith’s

ability to make the necessary showing under Schlup, and

because the resultant harm cannot be effectively remedied by

less intrusive means, the exculpatory testimony withheld from

the court as a result of the state’s actions must be presumed

to be true.” Smith, 466 F.3d at 806-07. As a result, the panel

majority concluded that “Smith satisfies the Schlup ‘actual

innocence’ standard for overcoming a procedural default of

his claims insofar as they relate to his felony murder convic-

tion . . . and thus Smith is entitled to proceed with his consti-

tutional claims.” Id. at 807. The dissenting judge argued that,

even assuming prosecutorial misconduct, “the evidence in this

case is still insufficient to qualify Smith for Schlup v. Delo’s

actual innocence gateway.” Id. at 829 (Bybee, J., dissenting).

We agreed to rehear this case en banc. We focus our analy-

sis primarily on whether Smith can overcome his procedural

default either by demonstrating actual innocence under Schlup

of the witness’s testimony, the testimony itself and any ‘fruits’ thereof

may not be used against the witness in any criminal case except a prosecu-

tion for perjury arising out of the testimony.” United States v. Lord, 711

F.2d 887, 890 (9th Cir. 1983).

SMITH v. BALDWIN 16659

or by establishing cause and prejudice. Because we hold that

Smith fails on both counts, we affirm the decision of the dis-

trict court.

II. Standard of Review and Jurisdiction

Smith’s federal habeas petition was filed after April 24,

1996, and is thus governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.

Woodford v. Garceau, 538 U.S. 202, 204, 210 (2003). We

review de novo the district court’s decision to dismiss the fed-

eral habeas petition for procedural default. Manning v. Foster,

224 F.3d 1129, 1132 (9th Cir. 2000). The district court’s

denial of an evidentiary hearing pursuant to AEDPA is

reviewed for abuse of discretion. Davis v. Woodford, 384 F.3d

628, 638 (9th Cir. 2004). We review the district court’s rele-

vant factual findings for clear error. Barajas v. Wise, 481 F.3d

734, 738 (9th Cir. 2007).

We have appellate jurisdiction over the district court’s

denial of the petition under 28 U.S.C. § 2253.

III. Analysis

Smith’s amended federal habeas petition raised six claims:

(1) lack of a knowing and voluntary plea; (2) ineffective assis-

tance of counsel during the investigative and trial preparation

stages of this case; (3) ineffective assistance of counsel during

the plea negotiation/entry stage of this case; (4) ineffective

assistance of counsel in hearings before the Oregon Circuit

Court; (5) actual innocence of felony murder, rendering

Smith’s conviction unconstitutional; and (6) violation of

Smith’s due process rights under Brady v. Maryland, 373 U.S.

83 (1963), when the prosecution made a deal with the actual

killer and failed to comply with Smith’s request to produce

the results of Edmonds’s polygraph test. The district court

declined to address these claims on the merits because it

determined that they were procedurally defaulted. The district

16660 SMITH v. BALDWIN

court also denied Smith’s request for an evidentiary hearing

and found that the state did not commit prosecutorial miscon-

duct leading to Edmonds’s decision not to testify on behalf of

Smith.

On appeal, Smith argues that (1) his federal habeas claims

are not procedurally defaulted, (2) even if they are defaulted,

such default is excused because of actual innocence as well as

cause and prejudice, (3) Smith is at least entitled to an eviden-

tiary hearing, and (4) the state committed prosecutorial mis-

conduct.

Given our holding in this case and because it highlights the

weakness of Smith’s case, we assume, arguendo, that Smith

is entitled to an evidentiary hearing and that the state commit-

ted prosecutorial misconduct. As noted, however, we do not

presume Edmonds’s affidavits to be “credible, for purposes of

resolving the question whether Smith’s procedural default

should bar him from presenting his habeas claims on the mer-

its,” as required by the panel majority. Smith, 466 F.3d at 828.

Even if we assume that the state committed prosecutorial mis-

conduct by threatening to seek the death penalty against

Edmonds if he testified on behalf of Smith, and that the state

should be forced to grant use immunity to Edmonds at an evi-

dentiary hearing at which he would testify that he, rather than

Smith, killed Mr. Konzelman, Smith still cannot overcome his

procedural default because he cannot show either actual inno-

cence of felony murder or cause and prejudice from the

default.

A. Smith’s federal habeas claims are procedurally

defaulted.

[1] Before a federal court may consider the merits of a state

prisoner’s petition for a writ of habeas corpus, the prisoner

generally must first exhaust his available state court remedies.

28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509,

515 (1982). If the petitioner fails to present his federal claims

SMITH v. BALDWIN 16661

to the state’s highest court, and if he is procedurally barred

from presenting those claims to the appropriate state court at

the time of filing his federal habeas petition, the petitioner’s

claims are considered procedurally defaulted for purposes of

federal habeas review. O’Sullivan v. Boerckel, 526 U.S. 838,

848 (1999).

[2] Smith raises several constitutional claims in his federal

habeas petition, none of which he properly exhausted in state

court. In his first round of state post-conviction proceedings,

Smith abandoned all substantive claims and challenged on

appeal only the denial of his motion for new counsel by the

state trial court on post-conviction review. Smith abandoned

all federal claims raised in his second post-conviction action

when the court granted his motion to voluntarily dismiss the

appeal.6 Accordingly, Smith’s federal habeas claims are not

properly exhausted. In addition, his claims are procedurally

defaulted for federal habeas purposes because Oregon’s time

limit for filing petitions for post-conviction relief bar Smith

from now returning to state court to exhaust his remedies. Or.

Rev. Stat. § 138.510(3) (2005).

Smith presents two arguments on appeal to excuse his fail-

ure to raise his claims before the Oregon courts, neither of

which help him. Smith notes that, despite a petitioner’s failure

to exhaust his state remedies, a federal court will consider the

merits of a federal habeas petition when “circumstances exist

that render [the state post-conviction] process ineffective to

protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)

(B)(ii). First, Smith argues that Oregon’s post-conviction pro-

cess was ineffective because, with respect to his first petition,

the original post-conviction court denied his request for new

counsel and, on appeal, the state court denied Smith’s request

to depose his trial counsel and the prosecutor. Second, Smith

6

Smith did properly exhaust on direct review his Eighth Amendment

challenge to the length of his sentence, but he does not raise that claim in

his federal habeas petition.

16662 SMITH v. BALDWIN

argues that Oregon’s post-conviction process was ineffective

because the post-conviction trial court denied his second peti-

tion by holding that it could not allow relief based on newly-

discovered evidence of actual innocence under Or. Rev. Stat.

§ 138.530(1) (2005).7 Smith claims that this ruling establishes

that Oregon’s post-conviction process was ineffective to pro-

tect his rights because it prevents the state post-conviction

court from considering evidence of actual innocence. There-

fore, Smith argues that his failure to exhaust state remedies

should be excused under 28 U.S.C. § 2254(b)(1)(B)(ii).

[3] We need not reach the merits of either of these argu-

ments, however, because these excuses for failure to exhaust

are irrelevant to our present inquiry. Smith needs no excuse

from the exhaustion requirement because he has technically

exhausted his state remedies through his procedural default.

The Supreme Court has noted that “[a] habeas petitioner who

has defaulted his federal claims in state court meets the tech-

nical requirements for exhaustion; there are no state remedies

any longer ‘available’ to him.” Coleman v. Thompson, 501

U.S. 722, 732 (1991). In cases such as this, where a petitioner

7

Or. Rev. Stat. § 138.530(1) (2005):

(1) Post-conviction relief pursuant to ORS 138.510 to 138.680

shall be granted by the court when one or more of the following

grounds is established by the petitioner:

(a) A substantial denial in the proceedings resulting in petition-

er’s conviction, or in the appellate review thereof, of petitioner’s

rights under the Constitution of the United States, or under the

Constitution of the State of Oregon, or both, and which denial

rendered the conviction void.

(b) Lack of jurisdiction of the court to impose the judgment

rendered upon petitioner’s conviction.

(c) Sentence in excess of, or otherwise not in accordance with,

the sentence authorized by law for the crime of which petitioner

was convicted; or unconstitutionality of such sentence.

(d) Unconstitutionality of the statute making criminal the acts

for which petitioner was convicted.

SMITH v. BALDWIN 16663

did not properly exhaust state remedies and “the court to

which the petitioner would be required to present his claims

in order to meet the exhaustion requirement would now find

the claims procedurally barred,” the petitioner’s claim is pro-

cedurally defaulted. Id. at 735 n.1. In light of the procedural

bar to Smith returning to state court to exhaust his state reme-

dies properly, the relevant question becomes whether Smith’s

procedural default can be excused, not whether Smith’s fail-

ure to exhaust can be excused. Therefore, the exceptions to

the exhaustion requirement set forth in § 2254(b) are irrele-

vant to Smith’s petition. Rather, we must determine whether

we can excuse Smith’s procedural default under the applica-

ble exception to that rule.

B. Smith cannot overcome his procedural default.

[4] On federal habeas review under AEDPA, generally

“[w]e may not reach the merits of procedurally defaulted

claims.” Williams v. Stewart, 441 F.3d 1030, 1061 (9th Cir.

2006) (per curiam). However, a petitioner can overcome pro-

cedural default and obtain federal review of the merits of his

claim in one of two ways. First, a petitioner overcomes proce-

dural default if he presents sufficient evidence to “demon-

strate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. To make this showing, a petitioner’s case must fall

within the “narrow class of cases . . . [involving] extraordi-

nary instances when a constitutional violation probably has

caused the conviction of one innocent of the crime.”

McCleskey v. Zant, 499 U.S. 467, 494 (1991). Second, a peti-

tioner may overcome procedural default by making “an ade-

quate showing of cause and prejudice” for his failure to

exhaust his state court remedies. Strickler v. Greene, 527 U.S.

263, 282 (1999). Because we conclude that Smith has demon-

strated neither actual innocence nor cause and prejudice, we

cannot consider the merits of Smith’s procedurally defaulted

federal habeas petition.

16664 SMITH v. BALDWIN

1. Actual Innocence

We will excuse Smith’s procedural default if he can make

the requisite showing of actual innocence of his conviction for

felony murder. See Schlup, 513 U.S. at 315-16.8 In this con-

text, Smith’s “claim of innocence . . . is procedural, rather

than substantive” because it allows him to overcome proce-

dural default to obtain federal review of his substantive con-

stitutional claims on the merits. Id. at 314. Such a “claim of

innocence is thus ‘not itself a constitutional claim, but instead

a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on

the merits.’ ” Id. at 315 (quoting Herrera v. Collins, 506 U.S.

390, 404 (1993)). In order to pass through the actual inno-

cence procedural gateway of Schlup, Smith must show that,

in light of all available evidence, it is more likely than not that

no reasonable juror would convict him of the relevant crime.

See House v. Bell, 126 S. Ct. 2064, 2076-77 (2006).9

8

Based on the briefs, record, and oral argument, we conclude that Smith

challenges only the procedural default with respect to his conviction for

felony murder and not with respect to his conviction for robbery. Smith

does not offer any facts or arguments to support a claim of actual inno-

cence of the robbery conviction or to otherwise excuse his procedural

default concerning that conviction.

9

We recognize that in Schlup the Supreme Court made the actual inno-

cence gateway available to a federal habeas petitioner who was convicted

following a jury trial, while in this case, Smith entered a no contest plea

in state court rather than proceeding to trial. We are aware of a potential

incongruity between the purpose of the actual innocence gateway

announced in Schlup and its application to cases involving guilty (or no

contest) pleas. See Bousley v. United States, 523 U.S. 614, 629-36 (1998)

(Scalia, J., dissenting). For purposes of our analysis, however, we assume

without deciding that the actual innocence gateway is available to Smith.

We do not determine whether the Schlup actual innocence gateway always

applies to petitioners who plead guilty (or no contest), but in this case, the

state has not raised the argument and, more importantly, Smith has failed

to satisfy the requirements of Schlup. Thus, the question is ultimately irrel-

evant for purposes of the habeas petition under consideration.

SMITH v. BALDWIN 16665

[5] In this case, Smith pled no contest to felony murder, an

offense with which he was charged because Emmett Konzel-

man was killed in the course of the burglary committed by

Smith and Edmonds. Smith does not dispute his involvement

in the burglary, but instead rests his actual innocence claim on

Oregon’s affirmative defense to felony murder, which has

five statutory elements. See Or. Rev. Stat. § 163.115(3)

(2005). Had Smith gone to trial on the felony murder charge,

he would have had the burden of proving all five elements of

the affirmative defense by a preponderance of the evidence.

Id. § 161.055(2). Accordingly, to pass through the Schlup

actual innocence gateway, Smith must prove that it is more

likely than not that no reasonable juror would have found that

he failed to establish any of the five elements of the affirma-

tive defense by a preponderance of the evidence. See

Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003);

Griffin v. Johnson, 350 F.3d 956, 963-64 (9th Cir. 2003).

[6] Oregon’s statutory affirmative defense to felony murder

requires Smith to prove that he:

(a) Was not the only participant in the underlying

crime;

(b) Did not commit the homicidal act or in any way

solicit, request, command, importune, cause or aid in

the commission thereof;

(c) Was not armed with a dangerous or deadly

weapon;

(d) Had no reasonable ground to believe that any

other participant was armed with a dangerous or

deadly weapon; and

(e) Had no reasonable ground to believe that any

other participant intended to engage in conduct

likely to result in death.

16666 SMITH v. BALDWIN

Or. Rev. Stat. § 163.115(3). Because Smith and Edmonds

both participated in the burglary of the Konzelman residence,

the state does not dispute that Smith has established element

(a). Each of the remaining four elements is contested. Even

though we assume, arguendo, that the state engaged in pro-

secutorial misconduct and that Edmonds would testify at that

hearing that he, not Smith, was the true killer, we hold that

Smith cannot meet his high burden of establishing actual

innocence of felony murder under Schlup because he cannot

meet the requisite evidentiary burden for all five elements of

his affirmative defense to take advantage of the gateway. Spe-

cifically, Smith cannot meet his burden under elements (b),

(c), or (d).

(b) “Did not commit the homicidal act”

[7] The second element of the affirmative defense requires

Smith to prove, by a preponderance of the evidence, that he

was not Mr. Konzelman’s actual killer. Or. Rev. Stat.

§ 163.115(3)(b). We have assumed for purposes of this analy-

sis that, granted use immunity, Edmonds would testify to this

effect. We do not assume, however, that every reasonable

juror would believe him.

Edmonds, taking the stand in Smith’s defense, would be

confronted with the numerous inconsistent statements he has

made under oath and to his cellmate in prison. He would have

his contradictory statements to the police read into the record

to impeach his credibility. He would be forced to refute his

prior testimony at Smith’s Sentencing Hearing, where he

recounted, in detail, seeing Smith with the crowbar in his

hand and threatening Mr. Konzelman, leaving, and returning

to find Mr. Konzelman battered on the floor and a pool of

blood on the bed where he had been lying. See Fed. R. Evid.

801(d)(1) (admitting prior statements to prove the truth of the

matter asserted therein where declarant testified under oath

and was subject to cross examination). This refutation would

be no less difficult for the fact that his prior testimony is sub-

SMITH v. BALDWIN 16667

stantially corroborated by that of Mrs. Konzelman, the only

surviving victim of what occurred in the Konzelmans’ bed-

room. Edmonds’s prior testimony that Smith woke the Kon-

zelmans by turning on the lights and that he was standing

behind Smith in the doorway when Smith entered the room,

his description of the confrontation between Mr. Konzelman

and Smith, and his statement that he left the doorway shortly

before the beating occurred, all correspond to Mrs. Konzel-

man’s description of the same events, given in the same pro-

ceeding. The fact that the police found the rope (which

Edmonds admitted to carrying) in the bedroom is further evi-

dence that he was there.

Even Edmonds’s wholesale disavowal of parts of his previ-

ous testimony would not exculpate Smith. Edmonds would,

for example, have to reconcile the inconsistencies in the two

affidavits. In his February 1996 affidavit, Edmonds wrote

both that “Roger Smith did not kill Emmit Konzleman [sic]”

and that Edmonds lied because “Roger Smith was about to

testify and leave [Edmonds] to do a life sentence for a crime

[Edmonds] did not commit.” It is undisputed, however, that

one of them was the killer. His second, 2001 affidavit, on the

other hand, states merely that he committed perjury to avoid

being sent to prison. This would be consistent with the first

statement of his 1996 affidavit, but in tension with the second.

That second affidavit, which states categorically that “Mr.

Smith never entered the Konzleman’s [sic] bedroom, where

the killing occurred,” also contradicts Mrs. Konzelman’s testi-

mony that both burglars were in the room at one point, as well

as what Edmonds told the police under oath, and what he told

his cellmate while he was in prison.

[8] Edmonds would also have to convince the jurors that

they should believe him now, with no corroborating evidence,

when the statute of limitations on perjury has expired,10 and

10

A perjury charge for Edmonds’s testimony at Smith’s Sentencing

Hearing would be barred by the statute of limitations.

16668 SMITH v. BALDWIN

when he is serving a life term in prison, meaning that he faces

almost no consequences for lying to them now. Why would

a reasonable juror believe Edmonds, knowing that he was fac-

ing yet another story spun by a drug addict, kidnapper, rapist,

and admitted perjurer who, because of his current life sen-

tence, can now lie with impunity? Smith must not only show

that such a juror would find it more likely than not that

Edmonds was lying in his statements to the police, his cell-

mate, and to the court in his Sentencing Hearing testimony;

he must also show that every reasonable juror would find it

more likely than not that Edmonds, at long last, has decided

to tell the truth. We do not find it more likely than not that

every juror would do so.

[9] Edmonds’s recantation changes little. A reasonable

juror would still have sufficient evidence to believe that Smith

was more likely than not the real killer, and Smith certainly

cannot meet his burden by a preponderance of the evidence.11

11

Curiously, our dissenting colleagues are unhappy that we make what

they refer to as “credibility findings,” Reinhardt, J., dis. op. at 16695, in

evaluating evidence a reasonable juror might review in making a Schlup

“actual innocence” determination in this case. They had no hesitancy in

making similar determinations themselves when they participated as en

banc members of the majority making a Schlup “actual innocence” evalua-

tion in Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc). In

Carriger, the allegedly exculpating witness had originally testified against

the petitioner, then testified in a post-conviction proceeding that he, him-

self, was the real murderer, then retracted the confession three weeks later.

Id. at 471-72. By the time the petitioner made a Schlup actual innocence

argument, the exculpating witness was unavailable to testify because he

was dead. Id. at 472-73. Nonetheless, the Carriger court deemed the con-

fession credible—when neither the state court nor federal district court in

the Schlup proceeding had witnessed it—and deem its subsequent retrac-

tion incredible. Id. at 473-76. Notably, the majority stated, “the fact that

[the accusing witness] confessed without immunity and overwhelmingly

against his own penal interest is a strong indicator of his reliability.” Id.

at 475. We respectfully suggest that our dissenting colleagues are being

inconsistent when they criticize us for drawing the opposite inference with

respect to a witness who thought he could recant, and possibly help his

partner in crime, without any personal consequences.

SMITH v. BALDWIN 16669

Perhaps it is for this reason that our dissenting colleagues (and

the original panel majority) would have us adopt the novel

approach of simply accepting Edmonds’s affidavits at face

value, declaring them to exculpate Smith, and proceeding to

a hearing on his constitutional claims—a remedy with no sup-

port in relevant precedent. The dissents’ (and the original

panel majority’s) remedy goes well beyond the Schlup actual

innocence excuse for procedural default. Instead, the dissent-

ers (and the original Smith majority) appear to have fashioned

an additional, independent excuse that opens the gateway for

defendants alleging serious prosecutorial misconduct to pro-

ceed to the merits of their cases without complying with

AEDPA’s exhaustion requirements. That is not the law, and,

left unchanged, could potentially open a gaping hole in

AEDPA’s jurisdictional and exhaustion framework. It was

that error in law, combined with the panel’s other miscon-

structions of the Schlup gateway, not “the factual question

whether the evidence does or does not support an affirmative

defense,” Reinhardt, J., dis. op. at 16701, that required our en

banc review. The Schlup gateway exists only for those who

can demonstrate their actual innocence, which Smith cannot

do under Oregon law.

(c) “Was not armed with a dangerous or deadly weapon”

[10] The third element of the affirmative defense requires

Smith to prove, by a preponderance of the evidence, that he

“[w]as not armed with a dangerous or deadly weapon.” Or.

Rev. Stat. § 163.115(3)(c). We note that the retraction in both

Further, we note that this is not a true “credibility finding” based on a

lower court’s direct observation of a witness on the stand. It is quite the

opposite, in fact—here, we evaluate potential testimony that no judge or

jury has ever heard. It does not matter to our analysis whether the witness

is actually telling the truth—the purpose of a credibility determination—

but rather we care only whether all reasonable jurors would choose to

believe the proffered testimony.

16670 SMITH v. BALDWIN

of Edmonds’s affidavits is limited to his “sworn statement”

but makes no reference to his testimony at Smith’s Sentencing

Hearing or what he told his cellmate. Moreover, while some

of the statements in the affidavit flatly contradict parts of his

Sentencing Hearing testimony (for example, that “Mr. Smith

did not bludgeon or otherwise strike Mr. Konzleman [sic] and

. . . that Mr. Smith never entered the Konzleman’s [sic] bed-

room, where the killing occurred”), it is completely silent

about the rest of his statements. If a reasonable juror could

somehow manage to believe every word in both Edmonds’s

affidavits, he or she could still find much to believe in

Edmonds’s Sentencing Hearing testimony that is not men-

tioned or contradicted in either affidavit.

[11] For example, at the Sentencing Hearing, Edmonds tes-

tified that he found Smith holding the crowbar in the Konzel-

mans’ bedroom, and that he shortly thereafter threatened Mr.

Konzelman with it. While he has disavowed his statement that

Smith was in the Konzelmans’ bedroom, he has not changed

his story that Smith was holding the crowbar. A reasonable

juror could still credit this part of Edmonds’s Sentencing

Hearing testimony, and find that Smith, at some point in the

evening, held the crowbar. A reasonable juror who found it as

likely as not that Smith held the crowbar at some point in the

evening would be compelled to find that Smith had failed to

establish the third element of his affirmative defense, and find

Smith guilty.

(d) “Had no reasonable ground to believe that [Edmonds]

was armed with a dangerous or deadly weapon”

[12] The fourth element of the affirmative defense requires

Smith to show that he “[h]ad no reasonable ground to believe

that any other participant was armed with a dangerous or

deadly weapon.” Or. Rev. Stat. § 163.115(3)(d). Even assum-

ing that a reasonable juror really believed the core of

Edmonds’s new story—that he, not Smith, was the true killer

—the record demonstrates that such a juror would still con-

SMITH v. BALDWIN 16671

clude that Smith had reason to believe that Edmonds was

armed with a dangerous weapon, and thus that Smith’s affir-

mative defense to felony murder fails.

[13] It is undisputed that Emmett Konzelman died as a

result of being beaten with a three-foot-long crowbar at the

hands of either Smith or Edmonds. Assuming that Edmonds

was the killer, we do not believe that all reasonable jurors

would find by a preponderance of the evidence that Edmonds

successfully concealed such a large, curve-ended weapon

from Smith’s sight (three feet being almost the length of an

average baseball bat) during the forty-five minutes that

Edmonds and Smith were in the garage and burglarizing the

home.

It is undisputed that the crowbar came from the Konzel-

mans’ garage. Smith and Edmonds were in the garage

together planning their criminal enterprise for some time

before entering the house. Although the garage was dark, the

record suggests that Edmonds may have had a lighter and

Smith a flashlight. Whatever the light source, the record indi-

cates that Smith and Edmonds must have had sufficient light

to identify various objects within the garage, since they found

and removed from the garage, among other things, the hats

they wore to disguise themselves, the rope, and the crowbar.

If Edmonds located and removed the crowbar in the garage

before entering the house, a reasonable juror could easily con-

clude that Smith saw the crowbar at that time.

A reasonable juror could find that Smith and Edmonds

entered the house at or around the same time. In one account,

Edmonds told police that he and Smith “masked ourselves

with bandanas and . . . we went in the house.” In another

statement, Edmonds stated that he and Smith were together in

the living room immediately after entering the house. At

Smith’s Sentencing Hearing, Edmonds testified that he

entered the house first and Smith followed right behind him.12

12

At the Sentencing Hearing, Edmonds, contradicting his statement to

the police, denied being near Smith during much of the burglary. A rea-

16672 SMITH v. BALDWIN

Neither recantation addresses this issue. A reasonable juror

would likely conclude that it would have been highly improb-

able that Smith could have avoided seeing Edmonds carrying

a three-foot crowbar, either when they entered the house at

approximately the same time, or later while together in the

house, especially when the light was turned on.

The record also contains evidence that Smith had reason to

know that Edmonds was armed with the crowbar when he was

in the Konzelmans’ bedroom. Mrs. Konzelman testified that

when she awoke, she saw the attacker standing next to the

dresser in the bedroom while the other burglar briefly stood

in the bedroom doorway, before proceeding down the hall-

way. Mrs. Konzelman also testified that the attacker picked

up the crowbar from the ground before he began striking Mr.

Konzelman. Assuming Edmonds was the killer, a reasonable

juror could conclude that Smith saw the crowbar in the bed-

room, even if Edmonds was not holding it in his hand when

Smith briefly stopped at the bedroom door before the attack.

Furthermore, it is entirely plausible that Smith returned to the

bedroom doorway when he heard the beating, or that he

moved to a vantage point in the hallway from which he was

not visible to Mrs. Konzelman but could still see the attack.

None of these scenarios is contradicted by the evidence,

including Edmonds’s two recantation affidavits. Based on this

evidence, a reasonable juror could find that Smith had reason

to know that Edmonds was armed when in the bedroom where

he initiated the fatal attack.

sonable juror who thought that Edmonds was “attempting to pin the mur-

der on his partner in the robbery,” Reinhardt, J., dis. op. at 16702, might

conclude that the earlier version of the story, where the two were together

in the house, is the true statement. It would only be natural that a burglar,

trying to exculpate himself, would lie to place as much distance as possi-

ble between himself and his accomplice (and, by extension, the killing).

It would make little sense, by contrast, to lie about the two being in the

same room together when they were not.

SMITH v. BALDWIN 16673

In addition, Smith admitted that he took a rope from the

garage and brought it into the Konzelman residence. The rope

was later found on the bedroom floor and the crowbar was

discovered in the kitchen. Accordingly, even assuming that

Edmonds carried the crowbar and Smith the rope, the ultimate

placement of the objects permits the reasonable inference that

Smith and Edmonds crossed paths while Edmonds had the

crowbar and Smith the rope, or that Edmonds took the rope

from Smith at some point before the beating.

Smith also entered a plea of no contest to the robbery

charge, which alleged that “the said defendant(s) . . . did use

a dangerous weapon, to-wit: a crowbar . . . .” It makes no dif-

ference whether Smith’s plea meant that Edmonds used the

crowbar (as opposed to Smith); it constituted an admission

that he knew the crowbar was used.

[14] Judge Reinhardt’s dissent criticizes us for “relying

almost entirely on Edmonds’s past statements” in determining

what really occurred that night. Reinhardt, J., dis. op. at

16695. Our colleagues are mistaken. We conclude only that

at least one reasonable juror—even one who believes

Edmonds’s new story that Smith did not wield the crowbar—

could still credit Edmonds’s earlier statements on more ancil-

lary matters, even in the light of contradictory contemporane-

ous testimony. While it might be reasonable to infer that a

“probable killer . . . attempting to pin the murder on his part-

ner in the robbery,” Reinhardt, J., dis. op. at 16702, would lie

about who actually crushed Mr. Konzelman’s skull with a

crowbar, a reasonable juror might nonetheless believe that

Edmonds was originally telling the truth about such things as

whether they entered the house together or separately—and,

if Edmonds testified differently today, that he would be lying

now only to exculpate his friend.

But, as Judge Reinhardt’s dissent notes, Edmonds would

not be alone—Smith himself could testify about the circum-

stances of the crime. His 1992 deposition testimony in his ini-

16674 SMITH v. BALDWIN

tial post-conviction proceeding, however, would undermine

any current claim that he was unaware that Edmonds had a

crowbar with him in the house. One of Smith’s habeas claims

was that trial counsel had failed to properly pursue and advise

him about possible defenses. At the outset of the deposition,

counsel for the State Attorney General explained to Smith that

“[t]his is my opportunity to clarify what you are complaining

about in your petition.” When asked “what defenses do you

think that you had to this crime,” Smith stated that trial coun-

sel should have “raised the evidence” that “Edmonds did it

and not me.” When Smith was asked whether there were any

other defenses, Smith said he was not “legally adapted” to

respond. State counsel then offered to let Smith consult with

his lawyer:

Well, do you need to talk to your attorney to get

some idea of some other legal defenses that you

think he should have raised because this is the only

chance you’re going to get to tell me what you . . . .

The parties went off the record and Smith consulted with his

attorney. After noting for the record that Smith had consulted

with his counsel, the State attorney asked again, “What other

defenses do you think trial counsel should have raised on your

behalf?” Smith responded:

A. He should have raised the defense that what

happened that night was not intended to happen.

Q. You mean Mr. Edmonds didn’t intend to kill

those people?

A. Yeah.

Smith’s counsel clarified, “I think what he means is that he

[Smith] didn’t intend to kill anybody.” State counsel then

interjected, “But he told me earlier that Mr. Edmonds did the

killing, not him;” whereupon Smith further explained, “Well,

SMITH v. BALDWIN 16675

like I didn’t know that he was going to do it.” Smith was

given additional opportunities to raise other defenses his trial

attorney should have raised, but not once during this deposi-

tion did he state that he had no reason to believe that

Edmonds had the crowbar.

If Smith was unaware that Edmonds had the crowbar—as

opposed to being unaware Edmonds had the intent to use the

crowbar to kill—he likely would have said so. That he did not

say so when given ample opportunity leads to the conclusion

either that he knew that Edmonds had a crowbar or that Smith

himself went into the bedroom with the crowbar. Throughout

the plea colloquy, two-day Sentencing Hearing, and his 1992

deposition, Smith never made the simple statement that he did

not know and had no reason to believe a crowbar had been

brought into the Konzelmans’ bedroom. The reason for this is

obvious.

[15] In sum, even assuming that, as a result of prosecutorial

misconduct, Edmonds would be entitled to use immunity at an

evidentiary hearing at which he would testify in accordance

with his recantations that he, not Smith, held the crowbar, and

even assuming that, notwithstanding his former sworn testi-

mony, the jury believed him, it is more likely than not that a

reasonable juror would conclude that Smith failed to establish

by a preponderance of the evidence that he “[h]ad no reason-

able ground to believe that any other participant was armed

with a dangerous or deadly weapon.” Or. Rev. Stat.

§ 163.115(3)(d). Even if Edmonds could convince a reason-

able juror that he, not Smith, was the killer, that reasonable

juror would still conclude that Smith had reason to know that

Edmonds was armed with a three-foot-long crowbar during

the burglary. Because a reasonable juror would conclude that

Smith failed to prove this element of his affirmative defense

by a preponderance of the evidence, Smith cannot pass

through the Schlup gateway.

16676 SMITH v. BALDWIN

2. Cause and Prejudice

Although Smith has failed to show actual innocence under

Schlup, he can still overcome his procedural default if he

makes “an adequate showing of cause and prejudice” relating

to his failure to exhaust his state court remedies. Strickler, 527

U.S. at 282. To make this showing, Smith must “demonstrate

cause for the default and actual prejudice as a result of the

alleged violation of federal law.” Coleman, 501 U.S. at 750.

Smith argues that his procedural default is excused based on

cause and prejudice because (1) his state post-conviction

counsel was ineffective, and (2) the prosecution committed

Brady error by wrongfully withholding Edmonds’s polygraph

results. Both arguments fail.

Smith argues that cause exists to excuse his procedural

default because his first post-conviction counsel abandoned

his role as Smith’s legal representative by failing to depose

Smith’s trial counsel, the trial prosecutor, and the jail doctor.

At the first post-conviction trial proceedings, the state intro-

duced affidavits from Smith’s trial counsel and the trial prose-

cutor, and Smith argues that his post-conviction counsel’s

decision not to question these witnesses in a prior deposition

constituted ineffective assistance. In response to the court’s

questioning, Smith’s post-conviction counsel explained that

he did not depose these witnesses because they would not pro-

vide any assistance to Smith’s case. He stated that “it would

be to Mr. Smith’s detriment to question these people further

because, in my opinion, they would only further damage his

case rather than help.” Smith argues that his counsel’s inac-

tion prevented Smith from properly presenting his substantive

post-conviction claims in state court,13 thus constituting cause

for his procedural default.

13

In his first state post-conviction petition, Smith alleged (1) ineffective

assistance of counsel because his trial lawyer failed to properly advise him

of potential defenses and “hounded” Smith into pleading no contest, and

(2) the violation of his due process rights because Edmonds’s plea bargain

wrongfully exposed Smith to “greater consequences for his acts than are

legally justifiable” and because Smith was on drugs when he entered his

plea, thus rendering it unknowing and involuntary.

SMITH v. BALDWIN 16677

In order to establish cause for a procedural default, a peti-

tioner must demonstrate that the default is due to an external

objective factor that “ ‘cannot fairly be attributed to him.’ ”

Manning, 224 F.3d at 1133 (quoting Coleman, 501 U.S. at

753). Because “[t]here is no constitutional right to an attorney

in state post-conviction proceedings,” Coleman, 501 U.S. at

752, attorney ineffectiveness “in the post-conviction process

is not considered cause for the purposes of excusing the pro-

cedural default at that stage,” Manning, 224 F.3d at 1133. As

the Supreme Court has established, counsel acts as the peti-

tioner’s agent and thus any attorney error in post-conviction

proceedings is generally attributable to the petitioner himself.

See Coleman, 501 U.S. at 752-53.

[16] Smith seeks to avoid this rule by arguing that his post-

conviction counsel’s failure to depose the relevant witnesses

resulted in counsel abandoning Smith, which qualifies as an

external objective factor that caused Smith’s failure to exhaust

his state remedies. See id. at 754. Although Smith voiced his

disapproval of his post-conviction counsel’s strategic deci-

sions, he has failed to show that those decisions rose to the

level of an external objective factor causing the procedural

default. The alleged errors of his attorney in the first state

post-conviction trial proceedings did not prevent Smith from

thereafter raising his substantive post-conviction claims with

the Oregon Court of Appeals and the Oregon Supreme Court.

See Custer v. Hill, 378 F.3d 968, 974-75 (9th Cir. 2004)

(holding that a federal habeas petitioner could not rely on

state post-conviction attorney errors to overcome procedural

default when the petitioner did not preserve the substantive

claims by presenting them pro se to the Oregon Supreme

Court).14 When the state post-conviction trial court denied

14

Smith’s reliance on our decision in Manning v. Foster, 224 F.3d 1129

(9th Cir. 2000), to establish cause based on attorney errors in the post-

conviction process is misplaced. In Manning, we held that a petitioner

could excuse his procedural default when post-conviction counsel errors,

“though not constitutionally defective, were not attributable to him

because they were both unauthorized and tainted by a conflict of interest.”

224 F.3d at 1135 (emphasis added). Smith has not alleged that a conflict

of interest caused the ineffective assistance of his post-conviction counsel.

16678 SMITH v. BALDWIN

Smith’s request for new counsel, he elected to challenge that

decision alone on appeal, rather than also challenge the denial

of his substantive state post-conviction claims. Smith’s failure

to exhaust his state court remedies was thus independent of

any alleged errors committed by Smith’s post-conviction trial

counsel. Therefore, Smith’s allegation of ineffective assis-

tance of counsel during his first state post-conviction trial

does not constitute cause sufficient to excuse his procedural

default, and we need not address whether he has shown preju-

dice with respect to that claim.

Next, while Smith procedurally defaulted on his Brady

claim by raising it for the first time in his federal habeas peti-

tion, he argues that there is cause and prejudice to excuse the

default because the state wrongfully withheld the results of

Edmonds’s polygraph examination. The results of that exami-

nation, in which Edmonds stated that Smith killed Emmett

Konzelman, were inconclusive. The polygraph examiner nev-

ertheless gave his opinion that Edmonds had answered the

questions truthfully and the state followed through with its

plea offer to Edmonds. Smith requested a copy of the results

immediately, but the state refused to divulge them. Smith

claims that he assumed that Edmonds passed the polygraph

because it was an express condition of the plea deal offered

to Edmonds. When Edmonds’s second recantation affidavit

revealed that the results of the polygraph examination were

inconclusive, Smith again requested the results, and the state

finally gave a copy to Smith while his federal habeas petition

was pending in the district court. Smith contends that the

state’s withholding of the polygraph results for so long consti-

tutes cause and prejudice to excuse the procedural default of

his Brady claim.

Even assuming that Smith could show cause for the proce-

dural default of his Brady claim, he has failed to demonstrate

any “prejudice as a result of the alleged violation of federal

law . . . .” Coleman, 501 U.S. at 750. Under Brady, the prose-

cution may not withhold any evidence that is material and

SMITH v. BALDWIN 16679

favorable to the accused. Brady, 373 U.S. at 87-88; United

States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007)

(en banc). “ ‘[T]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the

State, either willfully or inadvertently; and prejudice must

have ensued.’ ” Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir.

2006) (quoting Banks v. Dretke, 540 U.S. 668, 691 (2004)).

Prejudice ensues if the evidence that is withheld is consid-

ered “material.” Id. Evidence is material under Brady if there

is a “reasonable probability” that the outcome would have

been different if the prosecution had not withheld the evi-

dence. Jernigan, 492 F.3d at 1053 (citing Kyles v. Whitley,

514 U.S. 419, 434 (1995)). Generally, the test of materiality

is whether the evidence “undermines confidence in the out-

come of the trial.” United States v. Bagley, 473 U.S. 667, 678

(1985) (emphasis added). When the accused enters a plea

rather than proceeding to trial, however, materiality is deter-

mined by “whether there is a reasonable probability that but

for the failure to disclose the Brady material, the defendant

would have refused to plead and would have gone to trial.”

Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995).

[17] Under these standards, the results of Edmonds’s poly-

graph examination were not material, and thus the state’s

delay in revealing them was not prejudicial to Smith. In the

Oregon Circuit Court, where Smith entered his no contest

plea, the results of polygraph examinations are inadmissible

because they are “inherently prejudicial.” State v. Terry, 37

P.3d 157, 165 (Or. 2001); see also State v. Lyon, 744 P.2d

231, 232 (Or. 1987) (holding that polygraph test results are

inadmissible in Oregon courts even if the parties stipulate as

to their admissibility). Because they are inadmissible in Ore-

gon courts, the results of Edmonds’s polygraph examination

do not qualify as “evidence” for Brady purposes, let alone

“material evidence.” Wood v. Bartholomew, 516 U.S. 1, 6

(1995) (per curiam). Thus, it is not reasonably probable that

16680 SMITH v. BALDWIN

the immediate disclosure of the polygraph results would have

influenced Smith’s decision to plead no contest rather than

proceed to trial because Smith “could have made no mention

of them either during argument or while questioning witness-

es” or at any other point in the trial. Id. Therefore, we find

that, even assuming that Smith could demonstrate cause, he

cannot show prejudice based on the state’s delay in revealing

the results of Edmonds’s polygraph examination because

those results are inadmissible in Oregon court. Accordingly,

Smith cannot overcome the procedural default of his Brady

claim.

IV. Conclusion

We hold that Smith procedurally defaulted the claims in his

federal habeas petition, and we cannot excuse his default

because he has failed to demonstrate actual innocence or

cause and prejudice. Accordingly, we do not reach the merits

of Smith’s petition.

We vacate Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006),

reh’g en banc granted, 482 F.3d 1156 (9th Cir. 2007), and we

affirm the decision of the district court.

AFFIRMED.

SMITH v. BALDWIN 16681

Volume 2 of 2

16682 SMITH v. BALDWIN

FISHER, Circuit Judge, with whom SCHROEDER, W.

FLETCHER, and PAEZ, Circuit Judges, join, concurring:

Although I concur in the result the majority reaches, I write

separately because I do not adopt all of its reasoning. Specifi-

cally, I would affirm the district court’s decision on narrower

grounds, relying solely on the determination that Smith can-

not overcome the high standard set by Schlup v. Delo, 513

U.S. 298 (1995), with respect to element (d) of Oregon’s

affirmative defense to felony murder. Thus, Smith cannot pass

through the “gateway . . . to have his otherwise barred consti-

tutional claim[s] considered on the merits.” Id. at 315 (inter-

nal citations and quotation marks omitted).

I agree we should assume there was prosecutorial miscon-

duct, generally for the reasons spelled out in Judge Rein-

hardt’s and Judge Thomas’ dissents. I am not persuaded,

however, that the facts of this case warrant skipping over the

Schlup gateway to remedy this misconduct. Smith’s problem,

even with Edmonds as a now-exculpatory witness, is his

inability to demonstrate that, on the record as a whole, no rea-

sonable juror would have concluded that he proved all the

necessary elements of Oregon’s affirmative defense to felony

murder.

I focus on the fourth element, which requires the defendant

to prove that he “[h]ad no reasonable ground to believe that

any other participant was armed with a dangerous or deadly

weapon.” Or. Rev. Stat. § 163.115(3)(d). The plain language

of Edmonds’ affidavits, in which he recants his previous state-

ments that Smith killed Mr. Konzelman, does not satisfy

SMITH v. BALDWIN 16683

Smith’s burden with regard to this element. At most, the affi-

davits would establish that Smith was not the real killer, but

they do not resolve the separate question of whether Smith

“had a reasonable ground to believe” that Edmonds was

armed before he beat Mr. Konzelman with the crowbar.

To evaluate how a jury would likely resolve that question,

our Schlup review “must consider all the evidence, old and

new, incriminating and exculpatory, without regard to

whether it would necessarily be admitted under rules of

admissibility that would govern at trial.” House v. Bell, 126

S. Ct. 2064, 2077 (2006) (internal citations and quotation

marks omitted). Although this is a closer question than the

majority indicates, I ultimately join its conclusion that Smith

has not met his burden of proof to warrant passing through

Schlup’s actual innocence gateway.

To characterize Edmonds’ statements as “occasionally”

contradictory is an understatement. Op. 16645. As Judge

Bybee described in his dissent from the three-judge panel

decision in this case, “Edmonds has given many accounts of

that evening, which together encompass nearly every possible

way that the burglary and murder might have occurred.”

Smith v. Baldwin, 466 F.3d 805, 831 (9th Cir. 2006) (Bybee,

J., dissenting), reh’g granted, 482 F.3d 1156 (9th Cir. 2007).

For the purpose of Smith’s element (d) argument, the discrep-

ancies regarding the Smith’s and Edmonds’ respective

comings-and-goings into the Konzelmans’ house are particu-

larly pertinent.

At different times, Edmonds has alternatively said that: (1)

Smith returned to the garage to obtain the rope and the crow-

bar after he and Edmonds had entered the house; (2) Smith

already had the crowbar in his hands when they entered the

house for the first time, and Smith returned to the garage only

to get the rope; or (3) Edmonds didn’t “have any idea where

the crowbar came in at,” because the first time he saw it was

in the Konzelmans’ bedroom. In each re-telling of this story,

16684 SMITH v. BALDWIN

there have been periods when Edmonds was alone in either

the house or the garage while Smith was in the other location,

and the order of who followed whom into the house has often

changed. Depending on the time-line one accepts, Edmonds

could have entered the house either before or after Smith, and

removed the crowbar from the garage and carried it into the

house without Smith’s knowledge. See SR Dissent at 16696

n.10. A reasonable juror could adopt this interpretation and

conclude that Smith had no reason to know about the crowbar

before Edmonds used it to beat Mr. Konzelman.

Under Schlup, however, Smith must prove that it is more

likely than not that no reasonable juror would conclude that

Smith had a reasonable ground to believe that Edmonds was

armed. See, e.g., House, 126 S. Ct. at 2077; Carriger v. Stew-

art, 132 F.3d 463, 478 (9th Cir. 1997). Smith cannot satisfy

this high standard. Despite — or perhaps because of — the

inconsistencies, a reasonable juror most likely would find that

(1) there was a period when Edmonds and Smith were in the

same location when Edmonds had the crowbar before he used

it, and that (2) Edmonds could not conceal the three-foot

weapon from Smith during this time — indeed, that he had no

reason to do so. Because it is more likely than not that a rea-

sonable juror would conclude that Smith had a reasonable

ground to believe that Edmonds was armed, Smith cannot

meet his burden with respect to element (d) of Oregon’s affir-

mative defense to felony murder.

In reaching this conclusion, I do not feel it useful to specu-

late on the contents of Edmonds’ hypothetical testimony if he

were to testify at a hypothetical evidentiary hearing. I submit

this is largely irrelevant to our inquiry given the nature of the

cumulative record. Even if Edmonds testified that Smith did

not know that he was carrying the crowbar, we must “assess

how reasonable jurors would react to the overall, newly sup-

plemented record.” House, 126 S. Ct. at 2078 (emphasis

added). “If new evidence so requires, this may include consid-

eration of ‘the credibility of the witnesses presented at trial.’ ”

SMITH v. BALDWIN 16685

Id. (internal citations omitted). We must evaluate how a jury

would respond to all of Edmonds’ statements, not just his

hypothetical, exculpatory version. Given the numerous incon-

sistencies and contradictions in Edmonds’ various accounts, it

is unlikely that reasonable jurors would find Edmonds’ new

testimony sufficiently credible to rule out that Smith knew

about the crowbar before Mr. Konzelman’s beating. See

Schlup, 513 U.S. at 330 (explaining that where “newly pres-

ented evidence may [ ] call into question the credibility of the

witnesses presented at trial,” then “the habeas court may have

to make some credibility assessments”). Therefore, viewed in

the totality of all the circumstances, Smith cannot show that

more likely than not, no reasonable juror would conclude that

he had a reasonable ground to believe that Edmonds was

armed. Consequently, regardless of Edmonds’ hypothetical

testimony, I conclude that Smith does not meet Schlup’s

actual-innocence gateway standard with respect to element (d)

of Oregon’s affirmative defense to felony murder.

REINHARDT, Circuit Judge, with whom THOMAS, Circuit

Judge, joins, dissenting:

Reading the majority opinion, one could hardly discern that

this appeal is about a case of egregious prosecutorial

misconduct—threatening a witness with execution if he testi-

fies favorably to the defendant. Instead, the majority engages

in a remarkable and creative act of hypothetical appellate fact-

finding and, on the basis of the testimony it believes might

have been given, concludes that the witness’s testimony and

that of others, whatever that testimony might have been,

would be of no consequence. Given that the threatened wit-

ness was the only person other than the petitioner who had

direct knowledge of the critical aspects of the events of the

evening in question and the only person other than the peti-

tioner who was capable of testifying to them, it is not surpris-

ing that the prosecutor failed to anticipate that any court, let

16686 SMITH v. BALDWIN

alone an en banc appellate court, would determine without his

testimony having been adduced that whatever he said would

be of no significance, and that regardless of what his testi-

mony might be an evidentiary hearing could not have pro-

duced any material facts. Had the prosecutor realized that our

court could have reached such an unprecedented result, he

most surely would not have felt compelled to engage in so

extreme an act of prosecutorial misconduct. He would have

let the witness testify instead of threatening to have him exe-

cuted.

I.

In this case, Smith’s co-defendant, in order to avoid murder

charges and obtain a light sentence, turned state’s evidence

and agreed to swear that Smith, an accomplice to the robbery,

was the person who killed the victim. The facts, however,

showed that the co-defendant, himself, was more likely the

killer.1 Nevertheless, the co-defendant’s plan succeeded and

he was out of prison within three years of his plea agreement,

while Smith, who, according to the evidence, most likely

assaulted no one, pled no contest to felony murder in order to

avoid trial on a capital murder charge. Following his plea,

Smith received a life sentence.

The plea arrangement in this case was not unique. The par-

ticipant in criminal activity who confesses first and fingers his

fellow wrongdoer frequently receives a far lighter sentence,

even though he may have been the primary culprit and com-

mitted the more egregious act. As a result, his hapless asso-

ciate who played a lesser role often receives the harsher

punishment—sometimes even a death sentence.2 See, e.g.,

1

See Smith v. Baldwin, 466 F.3d 805, 814-17 (9th Cir. 2006), reh’g en

banc granted 482 F.3d 1156 (9th Cir. 2007).

2

The Supreme Court has recognized the inherent unreliability of an

accusation made by a defendant against his co-defendant. As the Court

explained in Lilly v. Virginia, 527 U.S. 116 (1999),

SMITH v. BALDWIN 16687

Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989) (en

banc).

What is unique about this case is that when Edmonds, the

probable killer, attempted, seven years later, to recant and to

testify that Smith was not the murderer, the state prosecutor

succeeded in preventing an evidentiary hearing by threatening

to seek the death penalty against Edmonds if he testified

favorably to Smith. At the time of the threat, Smith had filed

his federal habeas petition asserting that he had not committed

a violent act against anyone and that, under Oregon law, he

was actually innocent of felony murder. Accordingly, he

asserted, he was entitled under Schlup v. Delo, 513 U.S. 298

(1995), to bypass his state procedural default and present his

claim that his conviction of felony murder was obtained in

violation of his constitutional rights.3 In seeking to bypass the

procedural default, Smith simply sought to have the federal

court examine those constitutional claims on the merits.

Not surprisingly, in response to the state’s threat to have

him executed, Edmonds, the likely killer, invoked his Fifth

Amendment privilege and refused to testify. As a result, the

district court found that a Schlup evidentiary hearing would

when one person accuses another of a crime under circumstances

in which the declarant stands to gain by inculpating another, the

accusation is presumptively suspect and must be subjected to the

scrutiny of cross-examination. . . . ‘Due to his strong motivation

to implicate the defendant and to exonerate himself, a codefen-

dant’s statements about what the defendant said or did are less

credible than ordinary hearsay evidence.’

Id. at 132 (quoting Bruton v. United States, 391 U.S. 123, 141 (1968)

(White, J., dissenting)). Despite this admonition from our highest court,

criminal convictions are still obtained on the basis of co-defendant accusa-

tions with great frequency.

3

Smith also pled guilty to the robbery, but in his habeas petition he did

not deny his guilt of that offense and did not seek to set aside that convic-

tion or his sentence on that count.

16688 SMITH v. BALDWIN

be a “pointless exercise” and concluded that, without the

admitted killer’s4 exculpatory testimony, Smith could not

establish actual innocence in a manner sufficient to overcome

his procedural default and to allow him to proceed on the

merits of his constitutional claims.

In short, the effect of the state’s prosecutorial misconduct5

—threatening to seek the death penalty against Smith’s key

witness if he testified favorably to Smith—was to deny Smith

the opportunity to develop the facts necessary to establish his

Schlup claim. Because of the state’s misconduct, Smith could

not overcome the procedural barrier to his receiving a hearing

on the merits of the alleged constitutional violations. Put dif-

ferently, the state’s threat to have Edmonds executed elimi-

nated the crucial—indeed, the only—evidentiary process that

would have allowed Smith to pass through the Schlup gate-

way and, as a result, present his constitutional claims in fed-

eral court.

4

Although Edmonds never formally confessed to having killed Konzel-

man, he twice stated affirmatively, in his affidavits, that Smith was not the

killer. Given that Smith and Edmonds were the only two intruders in the

house when the attack occurred, the only reasonable inference from

Edmonds’s absolution of Smith is that Edmonds himself was the mur-

derer. Indeed, as the state itself acknowledged, “Edmonds has implicitly

admitted that he, rather than [Smith], was the killer, [even though] he has

never directly admitted as much.”

5

There can be little doubt that the state’s actions qualify as prosecutorial

misconduct. As the panel opinion explained:

Threatening a potential witness for the defense with execution

constitutes prosecutorial misconduct far more coercive than that

present in any reported case of which we are aware. The cases in

which courts have considered the prosecution’s threats to charge

witnesses with perjury or other criminal offenses, have all

involved the possibility of far less serious punishment. . . . Here,

the prosecution’s unprecedented threat to seek the death penalty

against Edmonds if he testified that Smith was not the killer was

unquestionably coercive and constituted substantial interference

with Edmonds’s decision whether to testify.

Smith, 466 F.3d at 823 (citations omitted; emphasis in original).

SMITH v. BALDWIN 16689

II.

The primary question before us is thus simply: what does

a federal court do when the state, by an act of gross prosecu-

torial misconduct, interferes with a habeas petitioner’s ability

to make a showing of his actual innocence in a manner that

would allow the federal court to excuse his state procedural

default? It is not a question we have faced before, nor a situa-

tion we are likely to face often. The majority seeks to avoid

answering the question by asserting that even had an evidenti-

ary hearing been held, Smith could not have proved his inno-

cence. Aside from the fact that this is somewhat like saying,

“We don’t need a trial because we know that the defendant is

guilty,” there is a fundamental flaw in the majority’s

approach. My colleagues do not evaluate Smith’s claim on the

basis of what evidence could have been adduced at an eviden-

tiary hearing. Instead, they base their decision on what

Edmonds said years ago, shortly after the killing, when he

was trying to shift the blame to Smith so that he would not be

subject to a lengthy term of imprisonment himself. The major-

ity’s mode of analysis obviously ignores the basic point that

Edmonds has filed affidavits retracting his earlier testimony

and is now, in offering to exonerate Smith, purporting to tell

the truth for the first time. Whether he did so shortly after the

killing or whether his current story is true can be determined

only when he is placed under oath and is subject to cross-

examination by both sides—in short, at an evidentiary hear-

ing.

Let me emphasize that the record is clear. As the district

court found, “The Linn County prosecutor’s office . . . warned

Edmond’s [sic] counsel that the district attorney would seek

the death penalty if Edmonds testified . . .” (emphasis added).

There can be no doubt about the prosecution’s goal in making

that threat. Critically, the prosecution did not threaten to seek

the death penalty against Edmonds if he turned out to be the

true killer. Rather, it threatened Edmonds with execution only

if he testified at Smith’s evidentiary hearing. That the state

16690 SMITH v. BALDWIN

dropped its threat against Edmonds as soon as he declined to

testify—that it never investigated his statements or sought to

determine whether his recantation might be true—makes

crystal-clear the state’s purpose in threatening Edmonds with

the death penalty: to prevent Edmonds from testifying at

Smith’s hearing and exculpating Smith of felony murder.

The question we now face, as I have explained above, is

how should we consider Smith’s Schlup claim given that the

state’s misconduct has rendered an evidentiary hearing a

“pointless exercise.” The majority’s solution is to imagine a

hypothetical evidentiary hearing at which Edmonds would

testify, having been granted use immunity by the state, “that

he, rather than Smith, killed Mr. Konzelman.” Maj. op. at

16660. The majority then determines that Edmonds’s hypo-

thetical testimony that Smith was not the true killer would not

be credible and that, even if it were credible, it would not ben-

efit Smith because Smith would still have to prove that he

himself never held the crowbar nor had a reasonable ground

to believe that Edmonds had it. Relying almost entirely on

Edmonds’s prior self-serving and ambiguous statements made

when he was trying to shift the blame to Smith to avoid capi-

tal murder charges himself, the majority holds that Smith

could not meet his burden of proving Schlup actual innocence

because at least one reasonable juror would still find Smith

guilty of felony murder.

The principal fallacy in the majority’s approach is apparent

on its face. It disregards the historic and constitutionally guar-

anteed system under which American courts determine the

facts. A full and fair hearing at which Edmonds was permitted

to testify is the only way that Smith could have established

the factual elements required to make out his defense to fel-

ony murder, and thus his Schlup actual innocence claim. By

conducting an evidentiary hearing we could have determined

whether Edmonds’s initial story or his current affidavits were

true. In the absence of that hearing, it is impossible to deter-

mine what Edmonds might have said or what Smith might

SMITH v. BALDWIN 16691

have established. Had a hearing been held, Smith’s lawyer,

who presumably understood the elements of the affirmative

defense that Smith was required to establish, could have

explored those elements fully in questioning Edmonds. Smith,

presumably, would have also testified at the hearing. His testi-

mony, like Edmonds’s, would likely have provided significant

details regarding the events that took place in the garage, the

timing of the two men’s entrance into the Konzelman home,

and the subsequent events inside the home, all of which could

have established definitively whether Smith had held the

crowbar or, if he had not, whether he had reason to believe

that Edmonds was armed with it. Both men would have been

subject to rigorous cross-examination. Perhaps their testimony

on direct would not have held up. Perhaps it would not have

been sufficient to allow Smith to meet the five-part test neces-

sary to establish an affirmative defense to felony murder

under Oregon law. At least a fair and full hearing would have

been held and a judge could have ruled on the two defen-

dants’ credibility and assessed the facts. We will never know

what the results of a Schlup hearing would have been, how-

ever, because the prosecution’s blatant misconduct rendered

such a hearing impossible.

The majority’s unprecedented attempt to construct a hypo-

thetical evidentiary hearing as a substitute for an actual

hearing—the one the prosecution prevented from being held

—fails to fill the gaping holes in the record created by the

state’s unconscionable interference. In the majority’s mythical

hearing, Edmonds states one thing only: that he, not Smith,

was the actual killer. In that construct, Edmonds does not pro-

vide details about the night in question. He does not say

whether Smith ever held the crowbar nor does he provide

facts that might indicate whether Smith had reason to believe

that Edmonds had the crowbar. In sum, the majority’s con-

struct assumes that Edmonds’s affidavits—which do not

address Smith’s affirmative defense but state only that Smith

was not the killer—comprise the full scope of what

16692 SMITH v. BALDWIN

Edmonds’s testimony would have been had an evidentiary

hearing taken place.

Such an assumption is entirely unreasonable. The purpose

of Edmonds’s affidavits was not to establish all the elements

of Smith’s affirmative defense. Edmonds sought only to

inform the interested parties, including the state, that his state-

ments inculpating Smith seven years earlier, made in

exchange for lenient treatment, were false. The affidavits do

not purport to set forth any of the factual circumstances sur-

rounding the killing or to describe fully the events of the eve-

ning in question.6 Accordingly, it makes little sense to

assume, as the majority’s construct does, that, had an eviden-

tiary hearing been held, Edmonds would have merely

repeated the statements in his affidavits, and nothing more.

Rather, in the absence of specific knowledge as to what

Edmonds and Smith would have said had the state’s miscon-

duct not rendered an evidentiary hearing futile, an approach

far more consistent with our constitutional principles of due

process is for the court to presume that the evidence precluded

by the state’s misconduct would have materially benefitted

Smith with respect to his Schlup claim, and, accordingly, to

allow him to present his constitutional claims on the merits.

Such a presumption is hardly unusual in civil litigation.7

“Generally, a trier of fact may draw an adverse inference from

the destruction of evidence relevant to a case.” Akiona v.

United States, 938 F.2d 158, 161 (9th Cir. 1991); see also 2

Kenneth S. Broun et al., McCormick on Evidence § 265 (6th

ed. 2006). As we stated in Akiona,

6

Indeed, the majority’s criticism of those affidavits for their incomplete-

ness, see maj. op. at 16671 (stating that “[n]either recantation addresses

th[e] issue” whether Smith and Edmonds entered the house at the same

time); id. at 16672 (noting that neither of Edmonds’s affidavits addresses

whether Smith could have seen the crowbar when he paused briefly at the

bedroom door), only underscores this point.

7

A petition for habeas corpus, of course, initiates a civil proceeding.

Mayle v. Felix, 545 U.S. 644, 654 n.4 (2005).

SMITH v. BALDWIN 16693

The adverse inference is based on two rationales,

one evidentiary and one not. The evidentiary ratio-

nale is nothing more than the common sense obser-

vation that a party who has notice that a document

is relevant to litigation and who proceeds to destroy

the document is more likely to have been threatened

by the document than is a party in the same position

who does not destroy the document. . . .

The other rationale for the inference has to do

with its prophylactic and punitive effects. Allowing

the trier of fact to draw the inference presumably

deters parties from destroying relevant evidence

before it can be introduced at trial.

Akiona, 938 F.2d at 161 (quoting Nation-Wide Check Corp.,

Inc. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218 (1st Cir.

1982)). Both rationales apply equally strongly to the state’s

willful intimidation of a critical witness with the result that he

refuses to testify at a habeas petitioner’s Schlup evidentiary

hearing and thus renders the hearing, in the words of the dis-

trict court, a “pointless exercise.” First, the state’s interference

with Edmonds’s willingness to testify raises the obvious infer-

ence that the state was “likely to have been threatened by,”

Akiona, 938 F.2d at 161 (quoting Nation-Wide, 692 F.2d at

218), Edmonds’s testimony—why else would the prosecution

have gone to such unconscionable lengths to prevent him

from testifying? Put differently, if, as the majority suggests,

Edmonds’s testimony would have been of no assistance to

Smith in a Schlup hearing because it would not establish

Smith’s innocence of felony murder, why was the state so

desperate to prevent his testimony? Why would it have

engaged in egregious prosecutorial misconduct by threatening

to have Edmonds executed if he testified? Thus the inference

is rational and fairly drawn. Equally important, if we presume

that Edmonds’s testimony would have been favorable to

Smith, our action would have a most beneficial effect. It

would deter the state from unlawfully interfering with the

16694 SMITH v. BALDWIN

introduction of relevant evidence in future habeas and other

proceedings.

The deterrence rationale takes on added importance when

considered in light of the purposes of the Schlup doctrine. The

Schlup gateway is an outgrowth of the Supreme Court’s rec-

ognition that “the conviction of one innocent of the crime” for

which he was convicted represents a “fundamental miscar-

riage of justice.” McCleskey v. Zant, 499 U.S. 467, 494

(1991); see also Schlup, 513 U.S. at 314-15. Meeting the

Schlup standard does not by itself prove that such a miscar-

riage has taken place,8 but doing so raises a significant possi-

bility that the petitioner may not have been guilty of the

offense for which he was convicted. This possibility warrants

an exception to the procedural default rule to allow the federal

court to make absolutely certain that no miscarriage of justice

occurs. See Schlup, 513 U.S. at 316. When the state, through

an act of flagrant prosecutorial misconduct, precludes the

introduction of evidence that, had it been admitted, would

undermine the court’s confidence in the outcome of a criminal

proceeding, it substantially increases the possibility that a fun-

damental miscarriage of justice—the conviction of an inno-

cent individual—has occurred. Even more so if the state by

that egregious misconduct precludes the holding of the evi-

dentiary hearing itself. This is certainly behavior that federal

courts, charged with upholding constitutional protections,

should seek to deter. For this reason, it is especially appropri-

ate in the context of a habeas petitioner’s Schlup actual inno-

cence claim to apply the standard presumption that the

precluded evidence was unfavorable to the party that caused

its preclusion and, here, that the precluded evidentiary hearing

would have resulted in an outcome favorable to the other

party.

8

This is in contrast to prevailing on a freestanding actual innocence

claim, which alone is grounds for granting habeas relief but imposes a

much more difficult—indeed, possibly insurmountable—burden on the

petitioner. See Herrera v. Collins, 506 U.S. 390 (1993).

SMITH v. BALDWIN 16695

III.

I will not here engage in the extraordinary process of appel-

late factfinding that the majority does when it concludes that

a reasonable juror would more likely than not find that Smith

had failed to meet at least one element of his affirmative

defense. Such factual determinations are a matter for the dis-

trict court in the first instance. They are to be made after a

thorough review of facts adduced at a habeas petitioner’s evi-

dentiary hearing. In this case, however, such a hearing was

precluded by the state’s deliberate and egregious misconduct,

and the district court was unable to make any findings. As a

result, the majority does so on its own, relying almost entirely

on Edmonds’s past statements—which are in serious doubt in

light of his recantations—as well as on hypothetical testimony

at a hearing that never took place. Such creative prestidigita-

tion is no substitute for an actual evidentiary hearing. More-

over, the majority makes credibility findings as to Edmonds’s

hypothetical testimony at its hypothetical hearing. Needless to

say, such credibility findings are a question for the district

court and cannot be made on appellate review, especially in

the absence of any testimony on which to base those findings.9

9

The majority strangely suggests that we are “being inconsistent,” maj.

op. at 16668-69 n.11, in criticizing its hypothetical credibility determina-

tions because an en banc decision that we joined, Carriger v. Stewart, 132

F.3d 463 (9th Cir. 1997) (en banc), concluded that a state court’s credibil-

ity determination was “not fairly supported by the record as a whole” and

therefore was “not entitled to a presumption of correctness,” id. at 475-76.

The majority’s comparison of its own approach to that of Carriger is, to

say the least, bizarre. In Carriger, the state court had found that a deceased

witness’s confession, which it had not itself witnessed, was not consistent

with the physical evidence and therefore not credible. Id. at 473. The en

banc court, reviewing the entire record, concluded that there was “virtually

no . . . support for the state court’s rejection of [the witness’s] confession”

and, consequently, declined to defer to the state court’s credibility finding,

pursuant to 28 U.S.C. § 2254(d)(8) (1994). Id. at 475; see also 28 U.S.C.

§ 2254(d)(8) (1994) (“[A] determination . . . of a factual issue, made by

a State court of competent jurisdiction . . . , shall be presumed to be cor-

rect, unless . . . the Federal court on a consideration of . . . the record as

16696 SMITH v. BALDWIN

The majority’s analyses of elements (b) and (c) of the affirma-

tive defense—whether Smith killed Konzelman and whether

he was himself armed with the crowbar—as well as its analy-

sis of element (d)—whether Smith had reason to believe

Edmonds was armed—are based almost entirely on hypotheti-

cal, non-existent evidence. Because such determinations are

wholly invalid in the absence of an evidentiary hearing, I will

not discuss each of them individually here.

To the extent that the majority’s analysis of element (d)

relies on evidence other than Edmonds’s past statements,10

such evidence is trivial and fails to prove that Smith had rea-

son to believe that Edmonds was armed with the crowbar.

First, there is Mrs. Konzelman’s testimony. Contrary to the

majority’s assertion, there is little reason to believe on the

basis of her testimony that Smith saw the crowbar on the bed-

room floor when he paused briefly in the doorway. Mrs. Kon-

zelman stated that she herself did not see the crowbar until the

attacker picked it up from the ground just prior to assaulting

her husband. She also stated that the second burglar’s pause

a whole concludes that such factual determination is not fairly supported

by the record.”). The Carriger court’s appellate review, pursuant to stat-

ute, of a credibility determination made by the state court—that the state

court was in no better position to make—is a far cry from this majority’s

credibility assessment of hypothetical testimony that has never been given,

let alone passed upon by a lower court.

10

The linchpin of the majority’s reasoning as to element (d) is

Edmonds’s prior statements indicating that he and Smith entered the Kon-

zelmans’ residence “at or around the same time.” Maj. op. at 16671. With-

out Edmonds’s statements, which were, in any event, vague and imprecise,

two of the majority’s primary factual bases—that the crowbar is three-feet

long (and therefore difficult to conceal) and that there was sufficient light

in the garage to see objects—would be wholly irrelevant. It would make

little difference that the crowbar was long or that the garage was suffi-

ciently lit if Smith and Edmonds did not enter the house together. If

Edmonds entered sometime after Smith (or perhaps even vice versa) he

could have easily removed the crowbar from the garage and carried it into

the house without Smith’s knowledge.

SMITH v. BALDWIN 16697

at the doorway was brief—just long enough for her to see his

bandana—which is consistent with Edmonds’s affidavit stat-

ing that Smith “never entered the Konzleman’s [sic] bed-

room.” These facts strongly suggest that Smith did not have

the occasion during his brief pause at the doorway to search

the room visibly and observe the crowbar, which was on the

floor and out of plain sight.

Second, three of the majority’s primary pieces of evidence

prove nothing more than that Smith learned at some point,

either during, or more likely after, the attack, that Edmonds

was armed with the crowbar.11 It would be patently unreason-

11

These pieces are: (1) the ultimate locations of the rope and crowbar,

(2) Smith’s guilty plea on the robbery charge, and (3) the majority’s the-

ory that Smith may have witnessed Edmonds committing the attack from

another room.

First, the majority asserts that “the ultimate placement of the [rope and

crowbar] permits the reasonable inference that Smith and Edmonds

crossed paths while Edmonds had the crowbar and Smith the rope[ ] . . . .”

Maj. op. at 16673. To the extent that the objects’ placement implies that

Smith and Edmonds “crossed paths,” however, it does not imply that they

did so prior to the beating. To the contrary, given that Smith never entered

the bedroom before the beating, the only reasonable inference that can be

drawn is that, if the two crossed paths at all, allowing Smith to see

Edmonds holding the crowbar, it was only after the attack had taken place.

Second, the fact that Smith pled to the robbery charge that alleged that

the defendants used a crowbar proves nothing more than that he had

learned at some time that Edmonds had a crowbar. This is hardly a surpris-

ing admission, given that Smith would certainly have learned of that fact

when he discovered that Konzelman had been murdered, if only from

being so informed by the police.

Finally, the majority’s conjecture that “it is entirely plausible that Smith

returned to the bedroom doorway when he heard the beating, or that he

moved to a vantage point in the hallway from which he was not visible

to Mrs. Kozelman [sic] but could still see the attack,” maj. op. at 16672,

if it may even be believed, proves only that Smith discovered that

Edmonds had the crowbar while the attack was taking place. It says noth-

ing about whether Smith had reason to believe prior to the attack that

Edmonds had picked up the crowbar—the only time frame that is relevant

to element (d) of the affirmative defense.

16698 SMITH v. BALDWIN

able to find that Smith “[h]ad . . . reason to believe that

[Edmonds] was armed with a dangerous or deadly weapon”

for the purposes of Oregon Revised Statute § 163.115(3)(d) if

he discovered that Edmonds had possession of the crowbar

only while Edmonds was committing the attack or after it had

taken place. The purpose of an affirmative defense statute,

after all, is to ensure that only persons who were aware

beforehand that a death could occur during the felony, and

therefore might have acted to prevent it, may be held liable

for felony murder. These points are thus wholly irrelevant to

the question whether Smith had reasonable ground to believe

prior to the attack that Edmonds was armed.

The majority’s attempt to bolster its analysis through

Smith’s 1992 post-conviction deposition testimony is also

unavailing. Although Smith “consulted with his counsel”

about other defenses his trial counsel could have raised, we

have no idea whether Smith’s post-conviction counsel told

him that not having reason to know that Edmonds had a crow-

bar constituted such a defense, or whether Smith understood

him if he had. (We could, of course, have learned the answer

to these questions had the evidentiary hearing to which Smith

was entitled been held.) Thus, the fact that Smith never

explicitly stated during that deposition that he was unaware

Edmonds had the crowbar tells us nothing. Moreover, the

majority interprets Smith’s deposition statement that he

“didn’t know that [Edmonds] was going to [kill Konzelman]”

as meaning that Smith was “unaware Edmonds had the intent

to use the crowbar.” Maj. op. at 16675 (emphasis added).

Smith’s statement, however, could just as easily mean that

Smith was unaware that Edmonds had the crowbar. Indeed,

that may be the more reasonable interpretation of Smith’s

vague utterance—after all, Smith may have been unaware that

Edmonds was going to kill Konzelman precisely because he

never saw Edmonds holding the crowbar.

In sum, the majority’s evidentiary analysis depends almost

entirely on credibility determinations of Edmonds’s never-

SMITH v. BALDWIN 16699

given testimony at a hearing that never occurred; the few

crumbs of evidence that do not fall in that category fail to sup-

port the majority’s conclusion, and, if they did, they would

hardly be sufficient.12

12

Judge Fisher’s approach, while rightly rejecting the majority’s reli-

ance on Edmonds’s hypothetical testimony, see Fisher op. at 16684, ulti-

mately fails for the same reason the majority’s does. Judge Fisher notes

that Edmonds’s past statements concerning “Smith’s and Edmonds’

respective comings-and-goings into the Konzelmans’ house” were highly

inconsistent, Fisher op. at 16683, and concludes on that basis that a rea-

sonable juror would most likely find that Edmonds and Smith were

together at least sometime during the evening and that Smith would have

seen Edmonds carrying the crowbar at that point, Fisher op. at 16684. Like

the majority, Judge Fisher believes that an evidentiary hearing would have

made no difference because Smith could not have proven his actual inno-

cence regardless of what Edmonds might have said. But the fact that

Edmonds changed his story so many times when he was attempting to

shift the responsibility to Smith surely cannot defeat Smith’s Schlup claim.

That a defendant trying to pin the blame on someone else was unable to

keep his story straight does not provide reason to credit one of those sto-

ries over the others, as Judge Fisher suggests; if anything, it is reason to

discount all of Edmonds’s past stories as fabricated in an attempt to avoid

culpability himself. At the very least, Edmonds’s failed past inconsistent

statements are not a reason to deprive Smith of an evidentiary hearing.

Because the existing evidence in the record is so utterly unreliable, as

Judge Fisher himself recognizes, we cannot assume that what Edmonds

might say at an evidentiary hearing at which he finally accepts responsibil-

ity for the crime would have no bearing on whether Smith could prove his

affirmative defense.

Given that Judge Fisher also appears to recognize the egregious nature

of the prosecutorial misconduct, I am puzzled as to why he would simply

assume that fact for the purpose of the opinion rather than stating

expressly that he, like the dissenters, would hold that the prosecutor’s

behavior was grossly improper and unethical. Although I disagree with the

majority for all the reasons expressed in this dissent, I find its failure to

adopt such a holding and to condemn expressly the prosecutor’s conduct

particularly inexcusable. I would hope that its unwillingness to do so

would not encourage other prosecutors to believe that they may engage in

similar threats to seek the death penalty against witnesses who might tes-

tify to facts that are contrary to the prosecution’s theory of the case.

16700 SMITH v. BALDWIN

IV.

Finally, I note briefly that, although the majority does not

advocate holding a hearing, because it believes that its hypo-

thetical construct dispenses with any need for doing so, it also

appears to suggest that granting Edmonds use immunity could

effectively remedy the prosecutorial misconduct. This is also

erroneous. As the panel opinion explained, granting Edmonds

use immunity

would not effectively counter the threat of execution,

as the state would be free to seek the death penalty

even if barred from relying on Edmonds’s testimony.

If Edmonds did decide to testify, there would be no

way to ensure that the looming prosecutorial threat

of execution would not significantly influence his

testimony. . . . Any testimony that contradicted his

affidavits would be of doubtful reliability.

Smith, 466 F.3d at 826-27. Because the state’s threat to have

Edmonds executed would taint any testimony that Edmonds

might give so long as the threat of execution loomed, we

could not now send the case back for an evidentiary hearing

at which Edmonds testifies under use immunity. On the other

hand, granting Edmonds “transactional immunity”—or total

immunity from prosecution on the subject matter of his

testimony—would allow Edmonds to testify more readily but

would provide too much of a reward for testimony that may

be untruthful, and such immunity might encourage Edmonds

to lie with impunity. Thus, allowing Smith to proceed to a

hearing on the merits of his constitutional claims provides the

least intrusive solution; such a remedy would effectively cure

the harm wrought by the prosecution’s unconstitutional threat

that it would seek to have a witness executed if he testified in

Smith’s favor, without providing too much or too little immu-

nity to that witness. This remedy would, of course, grant no

substantive relief to Smith, who would still be required to

establish on the merits his claims of constitutional violations.

SMITH v. BALDWIN 16701

In any event, the majority affirms the denial of an evidentiary

hearing and does not remand for the grant of use immunity.

So, its discussion of that remedy is as worthless as its con-

struct of a non-existent hearing.

V.

In the end, it is difficult to believe that the Court took this

case en banc to decide the factual question whether the evi-

dence does or does not support an affirmative defense to fel-

ony murder under a particular provision of Oregon law.13 We

do not go en banc to sort out questions of fact or state law,

or to create mythical records for hearings that never were. See

Fed. R. App. P. 35(a) (“An en banc . . . rehearing is not

favored and ordinarily will not be ordered unless: (1) en banc

consideration is necessary to secure or maintain uniformity of

the court’s decisions; or (2) the proceeding involves a ques-

tion of exceptional importance.”). It is even more unfathom-

able that, by its fallacious evaluation of non-existent facts, the

majority reaches a result the correctness of which is impossi-

ble to evaluate, all in order to avoid considering the state’s

flagrant prosecutorial misconduct and the consequences that

should attach to it.

I regret that this court did not hold, as it should have, that

threatening a witness with execution if he testifies that a per-

son convicted of a crime is not guilty is in direct contraven-

tion of the Due Process Clause of the Constitution. We have

13

Despite the majority’s insistence, this case is not about construing

Schlup. What a habeas petitioner must prove to establish actual innocence

under Schlup is not at issue in this case. Rather, as I explained earlier, the

unique problem we face is determining what a court should do when the

state, by threatening to execute a habeas petitioner’s key witness if he tes-

tifies at an evidentiary hearing, makes it impossible for the petitioner to

establish his Schlup claim. The majority evades that question, however,

and instead decides this case based entirely on an unprecedented process

of appellate factfinding and credibility assessing of hypothetical testimony

at a hearing-that-never-was.

16702 SMITH v. BALDWIN

an obligation to label such egregious prosecutorial miscon-

duct for what it is—a gross deprivation of the petitioner’s

rights and a reprehensible abuse of the prosecutor’s authority.

Here, it is evident from the district court’s finding that the

effect of the state’s misconduct was to deny a habeas peti-

tioner the very evidentiary hearing necessary to establish his

affirmative defense. Yet, the majority decides against Smith’s

Schlup claim almost entirely on the basis of the earlier ambig-

uous testimony of the probable killer who at the time was

attempting to pin the murder on his partner in the robbery in

order to obtain a lighter sentence for himself, and who has

since recanted his story. Because, unlike the majority, I

believe we cannot countenance the state’s blatant violation of

constitutional processes, and because, in the absence of an

evidentiary hearing, I cannot deem the violation harmless on

the basis of a story the threatened witness has disavowed, I

respectfully dissent.

THOMAS, Circuit Judge, dissenting:

I concur in Judge Reinhardt’s dissent, but write separately

in order to amplify my views.

“It is well established that ‘substantial governmental inter-

ference with a defense witness’s free and unhampered choice

to testify amounts to a violation of due process.” United

States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998) (quot-

ing United States v. Little, 753 F.2d 1420, 1438 (9th Cir.

1984)); see also Webb v. Texas, 409 U.S. 95, 97-98 (1972)

(warning witness of likely perjury prosecution constituted

violation of due process).

I can conceive of no stronger governmental interference

with a witness’s free choice to testify than to threaten the wit-

ness with death at the hands of the state if the witness testifies

consistent with his sworn affidavit. One can only describe the

SMITH v. BALDWIN 16703

government’s apparent reasoning as chilling. Either the gov-

ernment did not believe the witness’s affidavit—in which case

it was prepared to seek capital punishment despite its belief

that the man did not commit the murder—or the government

wanted to suppress truthful statements that might cause a man

who did not commit the murder to be freed or his sentence

reduced. If this type of threat had been made by the defense,

there is little doubt we would call it witness tampering, sanc-

tionable by an obstruction of justice charge.

I can understand the temptation to leap to the ultimate con-

clusion as to potential culpability for a crime. However, draw-

ing analytical constructs as to theoretical liability from a spare

appellate record is quite different from the truth that emerges

from the crucible of a courtroom hearing.

I would not brush aside the government’s prosecutorial

misconduct. Rather, I would hold that the petitioner’s due

process rights were violated by the threat made against the

witness and remand for a full Schlup evidentiary hearing.

Then, and only then, could we rest assured that there had been

a meaningful search for the truth of what happened that tragic

evening, and that the person most culpable in those events

was receiving the punishment warranted for the senseless

death of a helpless elderly man.