# Smith v. Baldwin

> Court of Appeals for the Ninth Circuit · December 26, 2007 · 510 F.3d 1127

URL: https://www.frixlaw.com/law-library/cases/9615714

## Case

- **Full name:** Roger Paul SMITH, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 26, 2007
- **Citations:** 510 F.3d 1127; 2007 U.S. App. LEXIS 29743; 2007 WL 4485872
- **Precedential status:** Published
- **Opinion:** Dissent by Thomas
- **Judges:** Kozinski, Schroeder, Reinhardt, Kleinfeld, Thomas, McKeown, Wardlaw, Fletcher, Fisher, Paez, Tallman, Clifton, Bybee, Smith, Ikuta
- **Cited by:** 174 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9615714

## How later opinions describe it (automated extraction)

- 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 …
- 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…
- 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
- finding “a habeas 20 petitioner who has defaulted his federal claims in state court meets the technical 21 requirements for exhaustion; there are no state remedies any longer available to him”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9615714. Public record. Not legal advice.