finding “the exceptions to the exhaustion requirement set forth in § 2254(b) . . . irrelevant to [the] petition” where the petitioner’s claims were technically exhausted through procedural default, and instead determining whether the procedural default could be excused “under the applicable exception to that rule”
How later courts described this case
- finding “the exceptions to the exhaustion requirement set forth in § 2254(b) . . . irrelevant to [the] petition” where the petitioner’s claims were technically exhausted through procedural default, and instead determining whether the procedural default could be excused “under the applicable exception to that rule”
- holding that to establish a miscarriage of justice exception, the petitioner must show that his case “fall[s] within the narrow class of cases . . . [involving] extraordinary instances when a violation probably JOHNSON v. KNOWLES 12045 has caused the conviction of one innocent of the crime”
- holding that failure to exhaust claims in 13 state court resulted in procedural default of claims for federal habeas purposes when state’s 14 rules for filing petition for post-conviction relief barred petitioner from returning to state 15 court to exhaust his claims
- finding that even when considering two 18 recantation affidavits, “it is more likely than not that a reasonable juror would conclude that 19 [petitioner] failed to establish by a preponderance of the evidence” that petitioner was not guilty of 20 felony murder
Written by the judges who cited it.
The opinion
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 interference 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) (quoting United States v. Little, 753 F.2d 1420, 1438 (9th Cir.1984)); see also Webb v. Texas, 409 U.S. 95, 97-98 , 93 S.Ct. 351 , 34 L.Ed.2d 330 (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 witness with death at the hands of the state if the witness testifies consistent with his sworn affidavit. One can only describe the government’s apparent reasoning as chilling. Either the government 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 conclusion as to potential culpability for a crime. However, drawing 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.
*1161 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.