Opposition Brief — House v. Bell

5, 1990).

In 1990), House filed a second state post-conviction petition, in which he again

asserted an ineffective assistance of counsel claim. The trial court summarily denied

post-conviction relief, agreeing with the State that all of the issues presented had either

been previously determined in the first post-conviction proceeding or waived.' On

appeal, the Tennessee Supreme Court affirmed, holding that “{t}he issue of ineffective

assistance of counsel was . . . determined on che merits at the initial proceeding and the

trial court did not err in dismissing this second post-conviction petition without a

hearing.” House v. State, 911 S.W.2d 704, 711 (Tenn. 1995).

III. Federal Habeas Proceedings — District Court

House initiated federal habeas corpus proceedings under 28 U.S.C. § 2254 in

September 1996. Among his 56 claims were numerous allegations of ineffective

assistance of counsel. In June 1998, the district court granted summary judgment in

favor of the Warden on all but four of House's claims.’ As to those four claims, the

‘Under Tennessee law in effect at the nme of House's state post-conviction proceeding, the scope of a hearing

in state post-conviction proceedings “extend{ed] to all grounds the petitioner may have, except those grounds which the

Court finds should be excluded because they have been waived or previously determined.” Tenn. Code Ann. § 40-30-

IIL (1990) (repealed 1995). A ground for relief was held to be “previously determined” if a court of competent

junsdiction “has ruled on the merits after a full and fair hearing” Tenn. Code Ann. § 40-30-11 2(a) (1990) (repealed

1995). A ground for relief was “waived” if the petitioner “knowingly and understandingly failed to present it for

determination in any proceeding before a count of competent jurisdiction in which the ground could have been

presented.” Tenn. Code Ann. § 40-30-112(bx 1) (1990) (repealed 1995). By law effective May 10. 1995, the Post-

Conviction Procedure Act was rewrimen and replaced in its emtirety by 1995 Public Chapter 207. § 1 (now codified at

Tenn. Code Ann. § 40-30-101 et seq. (2003).

“Each of the four remaining claims involved allegations of ineffective assistance of counsel. specifically: (1)

ineffective assistance of tal counsel for failure to adequately investigate guilt innocence: (2) ineffective assistance of

mal counsel for tarlure 10 call all available witnesses that would have benefined the defense: (3) ineffective assistance

ot trial counsel for failure to adequately im estigate Mitiyating circumstances. and 14) ineffective assistance of tnal

district court further found that petitioner's DNA evidence related to the semen stain

did not undermine any of the three aggravating circumstances found bv the jury and

rejected House's claim that he was “innocent of the death penalty.” (Pet. App. 133-34)

IV. Federal Habeas Proceedings — Sixth Circuit Court of Appeals

On appeal to the Sixth Circuit, House asserted only two arguments, both of which

related solely to the district court's procedural default determination: (1) Is a state

procedural bar “firmly established and regularly followed” or applied “evenhandedly to

all similar claims,” where the intermediate state court of appeals rules that the alleged

bar does not apply to the claims at hand, and where a higher court, on reversing that

ruling, states that no clear rule has previously been applied? and (2) Assuming that Mr.

House was required to establish “actual innocence” in order to obtain merits

consideration of the constitutional errors infecting his judgment of conviction and

sentence, did he meet that burden and is he entitled to relief?

On March 11, 2002, a three-judge panel affirmed the judgment of the district

court in a 2-1 decision. House v. Bell, 283 F.3d 737 (6th Cir. 2002) (opinion withdrawn

and vacated). That opinion was vacated on April 19, 2002, when the Sixth Circuit sua -

Sponte ordered en banc rehearing. Following supplemental briefing and oral argument.

the court decided. by a vote of 6-5, to hold House's case in abevance while it certified

three questions to the Tennessee Supreme Court, the stated purpose being “to ascertain

whether there remains a ‘state avenue open to process . . . [House's] claim’ [of actual

innocence] in this case.” House v. Bell, 311 F.3d 767 (6th Cir. 2002), cert. denied, 539

U.S. 937 (2003). When the Tennessee Supreme Court declined to answer the

questions certitied on November 24, 20003, the case again returned to the Sixth Circuit

for consideration of the two issues raised bv House in his briefs to that court. See supra

p. 9.

On October 6, 2004, the en banc Sixth Circuit affirmed the judgment of the

district court denving federal habeas relief. The court first determined that federal

habeas review of House's ineffective assistance claims was barred by an adequate and

independent state-law ground. Having found House's ineffective assistance of counsel

claims to be procedurally defaulted, the court then tumed to his contention that the

failure to consider the merits of his claim would result in a fundamental miscarriage of

justice, i.¢., that a “constitutional violation has probably resulted in the conviction of one

who is actually innocent of the crime” under Schlup v. Delo, 513 U.S. 298 (1995).

Because the district court conducted an evidentiary hearing at which contested evidence

was presented, the court of appeals examined both the evidence and the district court's

related factual findings before concluding that House had failed to show that it is more

likely than not that no reasonable juror would have convicted him. Sehlup, 513 U.S. at

327. In performing that analysis, the court specifically deferred to the district court's

resolution ot credibility and factual disputes. See Campbell v. Coyle, 260 F.3d 531, 539

(6th Cir. 2001) (“We review the district court's conclusions of law in the application of

($ 2254] de novo. and its factual findings are reversed only if they are clearly

enneaa" (Pet. App. 15)

As to tocus areas of House's proof. the court of appeals concluded: (1) the fact

that the semen found on the victim's clothes came from her husband and not from

House does not contradict the evidence that tends to demonstrate that he killed her

after journeving to her home and luring her from her trailer; (2) the testimony of two

women who allegedly heard Hubert Muncey's “confession” to the murder was not

credible, nor was the content of the confession supported by anv evidence in the Muncey

home where the supposed altercation with the victim took place; (3) by contrast, the

testimony of the victim's daughter, who was present in the home on the night of her

mother's abduction and murder, was credible and consistent with her trial testimony,

(4) the district court's « clusion that the “spillage (of the vials of blood] occurred after

the FBI crime laboratory received and tested the evidence” was not clearly erroneous;

and (5) House's theory that the blood on his blue jeans came from vials of blood

gathered at Carolyn Muncey’s autopsy and not from his physical attack in the course of

her murder was based upon a speculative theory about enzyme degradation that was

contradicted by other evidence in the record. The court of appeals specifically noted

that the unchallenged testimony indicating that the blood stains and mud on the

petitioner's jeans were mixed supports the conclusion that House committed the murder.

(Pet. App. 15-16)

The court further noted that the following facts implicating House remain

undisputed:

[House] lied to investigators about his whereabouts on the night of the

murder; he gave inconsistent versions of the origins of the scratches and

bruises on his hands and arms; he was seen near where the body was

discovered on the dav after the murder; he lied about what he was wearing

on the night of the murder; blue jeans belonging to House, spattered with

blood mixed with mud, were found at the bottom of Ms. Tumer’s laundry

hamper; House has a deep voice and Laura Muncey testified that the man

who came to the trailer on the night of the murder had a deep voice; and,

according to Ms. Sutton (the State's blood spatter expert at the federal

evidentiary hearing], the blood and mud found fogether on House’s blue

jeans had been mixed together, which “certainly eliminates the possibility

of any stains being created by contamination in an evidence container.”

(Pet. App. 15) ;

The court of appeals concluded that, “[dJespite his best efforts” in mounting a

“concerted attack on his conviction,” the “case against House remains strong.” (Pet.

App. 15-16) “We therefore conclude that he has fallen short of showing, as he must, that

it is more likely than not that no reasonable juror would have convicted him in light of

the new evidence.” (Pet. App. 16)

‘ ARGUMENT

I. CERTIORARI IS NOT WARRANTED BECAUSE THE SIXTH

CIRCUIT'S ANALYSIS OF PETITIONER'S GATEWAY INNOCENCE CLAIM IS

CONSISTENT WITH THIS COURT'S DECISION IN SCHLUP V. DELO AND

FULLY SUPPORTED BY THE FEDERAL AND STATE COURT RECORDS.

Petitioner seeks certiorari review of the decision of the Sixth Circuit affirming the

district court's dismissal of his federal habeas corpus petition. He specifically faults the

Sixth Circuit's refusal to allow revival of his procedurally defaulted ineffective assistance

of counsel inti based upon the “miscarriage of justice” exception enunciated by this

Court in Schlup v. Delo, 513 U.S. 298 (1995). He contends that he presented to the

district court a “compelling case of actual innocence” warranting review of his defaulted

Claims. (Pet., p. 16) To bolster his case for review, House asserts that the circuit courts

of appeals have taken divergent approaches in analyzing Schlup gateway claims of “actual

innocence” and that clari. :ation of Schlup’s “no reasonable juror” standard is needed.

(Pet., pp. 17-20)

Certiorari is not warranted in this case, however, because the Sixth Circuit's

analysis fully comports with this Court's decision in Schlup and correctly deferred to

factual and credibility determinations made by the district court — sitting both as trier

of fact at the federal evidentiary hearing and as a putative “reasonable juror” for

purposes of Schlup — that were not clearly erroneous in light of the evidence presented.

Under Schiup. a petitioner does not meet the threshold requirement to pass through the

innocence gateway “unless he persuades the district court that, in light of the new

13

evidence, no jurur, acting reasonably, would have voted to find him guilty bevond a

reasonable doubt.” Schlup, 513 U.S. at 329 (emphasis added). Schlup requires more

than just the presentation of additional evidence purporting to establish a prisoner's

innocence. For, as Justice O'Connor observed in her concurring opinion in Herrera v.

Collins, 506 U.S. 390, 423 (1993). “when a prisoner's life is at stake, he often can find

someone new to vouch for him. Experience has shown, however, that such affidavits are

to be treated with a fair degree of skepticism. . . . [and] are suspect, produced as they

were at the | ith hour with no reasonable explanation for the nearly decade-long delay.”

To pass through the Schlup gateway, the evidence presented must be both reliable and

credible. Schlup, 513 U.S. at 324. And where, as in this case, that evidence is sharply

contested in an evidentiary proceeding, a district court's credibility determinations are

critical to determining whether a petitioner has met the burden imposed by Schlup.

Here, as the district court concluded, the evidence presented by House to support

his claim, far from demonstrating his actual innocence, was countered and undermined

in virtually every respect by opposing evidence presented by the State at the evidentiary

hearing as well as the undisputed facts established at House's original trial. Indeed, the

three primary components of House's case for “actual innocence” — the blood evidence,

accounts of a drunken “confession” by the victim's husband, and House's version of the

events on the night of the murder — were rejected by the district court >”

incredible. inconsistent with the uncontroverted evidence at trial, ebuld by Often

expert and/or lav testimony presented in the federal evidentiary hearing, or some

combination of all three. (Pet. App. 131-32) Moreover, the court of appeals’ analysis

of the issues before it was wholly consistent with this Court's precedent.

Because tederal habeas review of House's ineffective assistance of counsel claim

was barred bv an adequate and independent state law ground, he was forced to look to

the only exception available to him to revive his procedurally defaulted claim — that the

failure to adjudicate his constitutional claim would result in a fundamental miscarriage

of justice. Schiup v. Delo, 513 U.S. 298, 321 (1995). To ensure that the miscarriage of

justice exception remains “rare” and would only be applied in the “extraordinary case,”

this Court explicitly tied the exception to the petitioner's actual innocence. Id. Thus,

unless a petitioner “presents evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial,” “even the existence of a concededly meritorious

constitutional violation is not itself sufficient to establish a miscarriage of justice that

would allow a habeas court to reach the merits of a barred claim.” Schlup, 513 at 316.

To establish 2 miscarriage of justice, a petitioner must demonstrate that “a

constitutional violation has probably resulted in the conviction of one who is actuallv

innocent.” Id.. at 321. To satisfy this heavy burden, a petitioner “must support his

allegations of constitutional error with new reliable evidence — whether it be exculpatory

scientific evidence. trustworthy evewitness accounts. or critical physical evidence — that

Was not presented at trial.” Jd, at 324 (emphasis added). The Sixth Circuit both

recognized and applied this standard in its analvsis of House's claims. (Pet. App. 8. 15-

16)

By definition, the Schlup standard for “actual innocence” cannot be met where.

as in this case. the evidence of innocence is sharply contested and particularly wees

factual disputes and credibility questions are resolved against the petitioner by the trier

of fact viewing the evidence and testimony in the first instance. The Sixth Circuit

majority properly recognized that fact. The dissenting opinion did not. Indeed, the

dissenting opinion was able to cast this case as the “rare or extraordinary case” of

innocence only by assuming the truth of testimony and evidence that had been

specifically discounted by the district court based upon that court's common sense

assessment of the record as a whole.*

‘Likewise, House's petition to this Court is replete with affirmative statements of “fact”

concerning the significance of the proof in the district court that are inconsistent with the factual

determinations made by the district court itself, For example. House claims that “(pjowerful new

evidence of innocence, including DNA evidence, proves that (he] was wrongly convicted of murder” (Pet..

p. 2). a contention rejected as a matter of fact by both the district court and the Sixth Circuit. House

claims to have been “cleared by DNA evidence, other scientific evidence, indisputable physical evidence

and multiple eyewitness accounts.” (Pet., p. 4) But even House admits there were no eyewitnesses to the

murder (Pet.. p. 5), and the district court specifically rejected his claim that the other evidence presented.

scientific or otherwise, demonstrated his innocence of murder or of the death penalty. (Pet. App. 130-33)

House claims to have “demonstrated that all of the physical evidence linking him to the crime . . . was

either non-existent of patently unreasonable” (Pet... p. 16}. a conclusion that has no support in the

findings of the federal courts reviewing his claims. His contention, that “[plost-conviction testing of the

blood evidence established that the victim's blood ended up on House's clothing . . . because either

shoddy packaging allowed the blood to spill or two law enforcement agents deliberately placed the blood

onto the clothing during transportation to labs” (Pet.. pp. 17-18. 30). is patently inconsistent with the

district court's finding that any spillage occurred after FBI laboratory had received and tested the

evidence. (Pet. App. 131) In shom. House's argument in support of certiorari is largely based on an

exaggerated view of the evidentiary significance of the evidence without regard to the district court's

assessment of its credibility and reliability in view of the rovurd us a whole

16

A habeas court reviewing an assertion of actual innocence does not write on a

clean slate. Cf Burefiwe v. Estelle. 463 U.S. 880 (1983) (“Federal courts are not forums

in which to relitigate state trials.”); Herrera vr. Collins, 306 U.S. 390 (1993) (“[I]m state

criminal proceedings the trial is the paramount event for determining the guilt or

innocence of the defendant); Wainwright v. Sykes, 433 U.S. 72 (1977) (“Society's

resources have been concentrated at [the state trial] in order to decide, within the limits

of human fallibility, the question of guilt or innocence of a crime.”). The proper mode

of analysis to be emploved in assessing “new evidence” of innocence was described most

precisely by Chief Justice Rehnquist in his dissenting opinion in Schlup:

(T]he habeas court analyzing an “actual innocence” claim is faced with a

would have had on the deliberations of reasonable jurors. lt must

necessarily weigh this new evidence in some manner, and may need to

make credibility determinations as to witnesses who did not appear before

the original jury. This new evidence, however, is not a license for the

reviewing court to disregard the presumptively proper determination by the

original trier of fact.

Schlup, 513 U.S. at 340 (Rehnquist, C.J., dissenting).

- Nor does the decision of the Sixth Circuit conflict with the decisions of other

Circuits on the same question. Indeed. manv of the cases cited by petitioner are squarely

in line with the Sixth Circuit's analvsis in this case. For example, in Fairman v. Anderson,

188 F.3d 635 (5th Cir. 1999), the Fifth Circuit's determination that an evewitness

account of the murder was sufficient to demonstrate a gateway innocence claim under

Schlup was directly contingent upon the district court's “crucial credibility determination

that (the witness} gave a trustworthy evewitness account” in his testimony in che federal

evidentiary hearing. Id. at 645. Acord Wilkerson v. Cain, 233 F.3d 886, 893 (Sth Cir.

2000) (“The district court must hold an evidentiary hearing to assess the newly

introduced [witness recantation] affidavits because there are reasons to doubt their

reliabilitv.”).

In Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003), the Ninth Circuit reversed

the decision of the district court dismissing the petitioner's habeas petition on grounds

of procedural default and remanded the case to the district court to perform precisely

the same analysis conducted by the district court in House's case — to determine

whether the petitioner had presented sufficient credible evidence of actual innocence to

excuse the procedural default of his constitutional claim. Although the court found that

the new evidence, if credible, would demonstrate a miscarriage of justice under Schiup,

it correctly concluded that “(t]here remains a question of the credibilitv of the proffered

evidence. . . . The district court is in the best position to observe the witnesses . . .

together with the other evidence available, and to make the ultimate credibility

determinations.” {d. a 883. The Ninth Circuit's rationale for remand is entirely

consistent with the deference accorded the district court's findings in this case bv the

Sixth Circuit.

Petitioner's reliance on the decision of the Third Circuit in Mattis v. Vaughn, 80

\$

Fed. Appx. 154, 2003 WL 22070528 (3rd Cir. 2003), as demonstrating confusion

among the circuits is misplaced and improper. because the Third Circuit specifically

designated its opinion in that case as not precedential. Likewise, petitioner's reliance on

purportediv conflicting Sixth Circuit decisions lends no support to his petition to this

Court, since intracircuit conflicts are a matter for en banc correction, not intervention

by this Court on certiorari review. Compare Sup. Ct. R. 10(a) (certiorari warranted if a

“United States court of appeals has entered a decision in conflict with the decision of

another United States court of appeals on the same important matter”) with Fed. R. App.

P. 35(a) (en banc hearing warranted if “necessary to secure or maintain uniformity of the

Court's decisions”).

In sum, petitioner's contention that there exists confusion among the circuits in

application of the Schlu; gateway standard is simply not borne out bv the cases he cites.

The fact that courts may reach different results based upon their analyses of different

evidence does not demonstrate a circuit split concerning the basic rule in Schiup.

Because the Sixth Circuit properly concluded that House failed to demonstrate a

fundamental miscarriage of justice as defined bv this Court in Schlup, certiorari is not

warramed under Sup. Cr. Rule 10(a).

li. CONSIDERATION BY THIS COURT OF A SUBSTANTIVE

INNOCENCE CLAIM UNDER HERRERA V. COLLINS IS NOT WARRANTED

BECAUSE THE QUESTION WAS NEVER PRESENTED TO, OR PASSED UPON

BY, THE SIXTH CIRCUIT.

Following the lead of the dissenting opinion, petitioner asserts that certiorari is

warranted to provide “clarification of the standard for freestanding claims of actual

innocence” under Herrera v. Collins, 506 U.S. 390 (1993). In Herrera, this Court

assumed — but only “for the sake of argument” — that “in a capital case a truly

persuasive demonstration of actual innocence made after trial would render the

execution of a defendant unconstitutional, and warrant federal habeas relief if there were

NO State avenue Open to process such a claim.” Id. at 417. Subsequently, in Schlup, the

Court underlined the difference between a “substantive Herrera claim,” under which the

petitioner would have to produce evidence that “unquestionably establish{es} . . . [his]

innocence” of the crime, 513 U.S. at 316-17, and a “procedural” or “gateway” claim of

innocence, which “does not bv itself provide a basis for relief,” id. at 315, but is asserted

to obtain federal review of otherwise procedurallv defaulted claims.

Pointing to statistics outside the record of this case, which purport to show that

“the actually innocent have been freed from death row in ever increasing numbers,”

House urges this Court to “announce a standard for Herrera claims” to “guide courts

presented with freestanding innocence claims in capital cases.” (Pet.. p. 31, 33)

enous. House himself presented vo the courts below only a gateway innocenc. <laim

under Schlup. not a substantive Herrera claim. Thus, even assuming a substantive

4

innocence claim would present a cognizable basis for habeas relief (an assumption

contrary to the decision in Herrera itselt), anes of this Court's certiorari jurisdiction

to consider the standard for assessing such a claim would not be appropriate, because the

issue was never presented or passed upon in the court below.

This Court has “stated, repeated and reiterated the general rule that precludes a

grant of certiorari when che question presented was ‘not pressed or passed upon below."”

United States v. Williams, 504 U.S. 36, 58 & n.3 (1992) (Stevens, J., dissenting); see also

Duignan v. United States, 274 U.S. 195, 200 (1927) (“This court sits as a court of

review.”). House raised only two issues in his appeal to the Sixth Circuit, both of which

related solely to the district court's procedural default determination on his ineffective

assistance of counsel claim: “(1) whether che Tennessee state courts applied the state

waiver rule in such away —_¢ it constituted an adequate and independent state ground

that procedurally defaulted his ineffective assistance claims; and (2) whether, if his

ineffectiveness claims were procedurally defaulted, he had made a sufficient showing of

his actual innocence of the crime, permitting him to revive them.” (Pet. App. 6) The

Sixth Circuit specifically limited its determination to those two issues. (Pet. App. !-2)

(“House has limited his brief to a discussion of only two claims . . . . Having considered

the arguments of the parties regarding the tw claims that are before us, we affirm the

district court's denial of the writ for the reasons set forth below.”) (emphasis added).

Likewise. petitioner's application for a certificate of appealabilitv presented only

a gateway innocence claim under Schlup: “(whether the District Court erred in finding

that Mr. House had not established entitlement to prceed on his claims of guilt phase

error . . . under the ‘actual innocence’ exception to the procedural bar rule... .” (emphasis

added) A certificate of appealability “is a jurisdictional prerequisite” to appellate review

of habeas claims. 28 U.S.C. § 2253(c)(1); Miller-El v. Cuckrell, 123 S.Ct. 1029, 1039

(2003) (“The COA statute establishes procedural rules and requires a threshold inquiry

into whether a circuit court may entertain an appeal”). In a habeas case, a court of

appeals may certify for appeal only those issues with respect to which “the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2) (emphasis added). The court is further required to “indicate which specific

issue or issues” raised by the applicant satisfy that required showing. 28 U.S.C. §

2253(c)(3) (emphasis added). House specified Only two issues in his application to the

Sixth Circuit, and, since he did not even attempt to make the showing required by §

2253(c)(2) as to any other issues, the court of appeals could not have found that he had

met his burden as to other issues.

Even if House had included a freestanding actual innocence claim in his

application for a certificate of appealability, he could not have succeeded in making a

“substantial showing of the denial of a constitutional right” with respect to such a claim,

as he would have been required to do by 28 U.S.C. § 2253(c)(2). Herrera itself makes

clear that “[c}laims of actual innocence based on newly discovered evidence have never

”

been held to state a ground for federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal proceeding. . . . [F]ederal habeas

courts sit to ensure that individuals are not imprisoned in violation of che Constitution

— not co correct errors of fact.” Herrera, 506 U.S. at 400. While Herrera hypothesized

“for the sake of argument” that the Constitution might forbid the execution of one who

proves his factual innocence, this Court has never held that such a constitutional right

exists.

Finally, even if a Herrera claim had been properly certified and presented to the

Sixth Circuit, House still would not be entitled to relief. The hypothetical innocence

claim discussed by the Court in Herrera has three essential components: (1) that the

petitioner is under a death sentence; (2) that the petitioner makes a “truly persuasive”

demonstration of actual innocence of the capital offense after trial; and (3) that there is

no state avenue Open to process such a claim. Herrera, 506 U.S. at 417. Only the first

of these components is satisfied in this case. As to the second, the factual findings of the

district court, affirmed by the Sixth Circuit, anemieg the credibility and weight to be

accorded House's new evidence defeat anv claim that he has mounted a “truly

persuasive” demonstration of innocence. More importantly, however, under a plain

reading of Herrera, the absence of state remedies is an element of a substantive innocence

claim and a condition precedent to its assertion in federal habeas proceedings. See Id.

(“[([]n a capital case a truly persuasive demonstration of ‘actual innocence’ made after

— --- - — ____ —__

trial would render the execution of a defendant unconstitutional, and warrant federal

habeas relief if there were no state avenue open te process such a claim.”) (emphasis added).

Conversely, the aruilability of state remedies, as a matter of law. defeats any such claim.

“In Herrera, this Court specifically identified executive clemency as the “traditional

remedy for claims of innocence based on new evidence.” Id., at 416-17. Because that

remedy is unquestionably available to House under Tennessee law, he would be barred

deme exneniage nbieeniee tienen Oct cates for habeas corpus relief even if such

a claim were held to be cognizable. See Tenn. Code Ann. § 40-27-101 et seq. (2003)

(Tennessee Governor has broad power to grant reprieves, commutations, pardons, and

exonerations in all criminal cases after conviction).

Because House never properly presented a substantive innocence claim to the

Sixth Circuit, and that court's decision does not rest upon the disposition of any such

claim, certiorari is not warranted under Sup. Ct. Rule 10.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

PAUL G. SUMMERS

Attorney General & Reporter

State of Tennessee

inten

MICHAEL E. MOORE

Solicitor General

LLY

JENWIFER L. SMITH

iate Deputy Attorney General

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202

Phone: (615) 741-3487

Fax: (615) 532-7791

Counsel for Respondent

CERTIFICATE OF SERVICE

| hereby certify that a true and exact copy of the foregoing Brief in Opposition has

been forwarded by First-Class U.S. mail, postage prepaid, on this the bt dav of Mav,

2005, to:

Stephen M. Kissinger

Federal Defender Services of Eastern

Tennessee, Inc.

530 South Gav Street, Suite 900

Knoxville, Tennessee 37902

I further certify that all parties required to be served have been served.

A Sud

JENNIFER L. SMITH

Associate Deputy Attorney General

DISTRIBUTED 0 the Supreme Court of the United States

WAY 18 2005

PAUL GREGORY HOUSE,

Petitioner,

v.

RICKY BELL,

‘Respon ndent,

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Stephen Michael Kissinger

Federal Defender Services

Of Eastern Tennessee, Inc.

530 South Gay Street Suite 900

Knoxville, TN 37902

(865) 637-7979

Counsel of record for Petitioner

EDITOR’S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A BETTER

COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED.

INTRODUCTION

Responder: uryes this Cour 10 deny Paul House's petitiun even though every judge on the Court

below . siting en Aanc. conciuded 193; Mr. House had established a colorable claim of actual innocence

heiore the disimet cour, Howse Beil. 40 F.3d 66S, 684 (6? Cor. 004i" Indeed. 115 fait to say that he

has presenied a coiorabie claim of actual yanacence). ad. av GY. Memnn, J.. dissenung (“He has clearly

shown both ths: 3 reasonable juror would have a Substantive and serious doubt ss to hrs guilt and that the

cumulative evidence is insufficient to cnabie a ratvonal juror to convict House or sentence him 10 death

for the murder of Carolyn Muncey.”). See also, Schlup v. Delo, 513.45. 298, 311 and 332

(1995 fadopuing the Carrier/Khulmann standard). By the narrowest of margins. 8-7. however, the

mayority determined that Mr House s evidence was not substantial enough to sausfy either Schiup or

Herrera.

Responden: urges the Court to deny cernoran largely upon three points. First, it argues that the

mayority below properly deferred to district court fact-finding. We show than several key respects. no

such fact-finding occurred. Second. Respondent argues that the majonty properly applied Schiup, and

thal there 1s no contusion below as to how Schlup 1s to be applied. We show that view 1s mistaken a3

well. Therd, Respondent argues that the mayority propery applied Herrera. Again we will show that the

mayority was mislaken and that ceruoran is apprupnate.

Paul House presented a compelling showing of mnocence m the distnci court, a showing that

satisfied the siandards set forth in both Schlup and Herrera. But for the errors committed by the

mavornty. he would save won review of ns underiving claims. Wanout this Court's review. there 15 3

vers teal chance tina: House wr ae executed

The district court's fact finding wholly ignored ample record-hased evidence of Houye's

innocence and is not cntitled the deference Reypondeat relies on.

Resputcen: cinerea defense of thy Siate of Tennessee» en guing attempis io execute Mr

Hatve in terms of respecting state court and disiric: court fact finding. He does nothing. however. to

“eDul the record evidence of Mr. House's mnocence.

A. State court findings reached without consideration of new evidence are not entitled

to deference.

Respondent, inks the mayurity below. proffers a lengthy recttauon from the direct appeal opinion

as established facis requiring rebuttal. Both thereby nore that neiher the twelve persons who initially

determined Mr. House's guilt. nor the Tennessee Supreme Court who reviewed the then-existing record

to find evidence to support the jury’s conclusion. were privy to the overwhelming evidence of Mr. |

House's innocence presented to the district court at the time they spoke so assuredly of the suength of the

State's case for guilt. Accordingly, both also ignore Schiup s direcuve that a court seeking to resolve a

threshold claim of actual innocence consider all the evidence in the res .

. Te eee. . a yt . iat °

supporung the prosecution's theory of the case. Schlup v. Delo. $13 U.S. at 327-328.

B. —Deference to district court findings is required only where the findings are actually

factual and when they are not clearly erroneous.

The sume disregard fur the evidence in the district court record infects Respondent's allegation

inat the majority’ y decision 1s properly deferential to the district court finding of fact. Of the five district

court holdings which actually are factual findings emtited to deference, the iebahd shows three to be

atter!y unsupported by the evidence. and thereiure clearly erroneous. and the remaining two are largel

meievani 0 the Schdup incurrs in this case

Resparcent. hike the mayursy below. contends shai tite district court found that Mr. Muncey's

“ae Spends. Mt. Parker ane Penny Lemer. 1 he testied that te bad confessed to them. thar he had

“ET Se ee Mie 8 te Mere erectile In fect. whet the dtret coat: setical.y held way that aay. “ne

IMpressee Wita meridiais Wha Was: Over fer Yeats (oO come forward wih there cudence.” Memorandum

Gpinar. a: $3) Apy. 625). line G:stinction ss catccal. Kathy Parker's testimony expressly states thal she

did not wait “over ten vears” 1 come sorward with the evidence of Mr. Muncey’s confession, but instead

went (0 both iocal law enforcement the day afier heanng the confession. Hearing Transenpt 2’1 99

Voi.1. pp. 38-39, 24-45 (Apx. B4d-S45, 848-849). The district cour’s *fmding™ on this point is therefore

clearly erroneous. The district court wholiy ignored this fact. Respondent. like the majority below. also

points to the distnct court's finding that the testimony of Mr. Munces 's dazghter that she could not recall

tne furmiture in the home being disturbed when she awoke 10 find her mother missing contradicts these

two disinterested witnesses’ account of Mr. Muncey's confession. The record reveals that neither Kathy

Parker. nor Penny Letner, testified that Mr. Muncey had confessed to killing his wife in the home.

Again, the district court's finding ts clearly erroneous.'

Respondent contends that the majonty properly defers to the district court's finding that sny

blood missing from the sample tubes taken during Ms. ny) 5 MPS after Mr. House's blue

wet eye ae

jeans hed been tested by the FBI. Sespentene the te entestay below. cannot point 16a single piece of

ayn

evidence which supports this finding and indeed there is no such evidence. Uin-rebuned and un-

impeached photographic and testimonial evidence before the distinct court show that the container in

which the sample tubey were packayed had been inexplicably opened before arriving at the FBI Crime

Laboratory. The tesumony of FBI Agent Paul Bighee demonstrates, -Retngee Niet wes missing from

the sample tubes than the FBI would have used in testing. Finally, ‘un-rebuted and un-iempeached

Photographic ev icence ciearly retlect tha: the dio0d which did leak from the thes after testing failed to

‘Not neds ar the district court’ s ¢ Sucperee grounds for reyecuiny Parker and Leiner’s tesuumony devoid of

“appen nthe second. their teemoas adeur Mr. Marees > contcesion & sosiOtoraied Ov other substantia; ev dence

Mi. Munsey + sa including. the cons-teacy Sen cer the acts described sr i:s confession and the natute of the

oe tbe a Mi tail y $ feng tease: Vor 2tacst on the vicum, Mir. Muneey’s attack on the tem. the very

iM of ace course ne fr eRTeEMel Cen.ct o” szeuig her that evenung. and his attempt to secure 3 Cuncocted alib:

tor the sught as hes ms

account jor thres-Jourtas of 2 whe a! m:és:tg blood Or. ver another criucal issue. the éistrret court's

iinding 1s cieari\ erroneous

Respondent alse punts iv the district courn’s finding thal Hubert Muncey Jr.'s daughter. Laura.

W295 a credible witness When she tescicied at the federal evidenuary hearing. Respondent. how ever. rehes

upon only two aspects of Ms. Muncey’s testimory. :.¢., that the home was not in disarray when she

awoke to find her mother mussing and that a person with a low voice had called to her mother from the

road. As noted, the condition of the home was not relevant because no one testified that Mr. Muncey

__ S9pfessed to kalling his wife in the home. As for the low voice callung tram the road, there 1s no proof

that this person was connected to the murder. Moreover, even if there were. Laura Muncey’s testimony

would exculpate Mr. House because she also stated that the person who had called to her mother had

honked a car horn and the evidence at tal showed that Mr. House did not have an automobile on the

evening of the murder.

nol a credible witness when he testified bout hs whereabouts during the one and one-half hours he was

gone from his girifmend’s crailer on the night if the murder Contrary to Respondent s claim that this

testimony was cntrcal to Mr. House's case. whether he had a satisfactory alibi for that time period is of

\nttle significanee. The record show’ that Mr. House could not have physically accomplished a) the acts

he was alleged to have commutied within that ume frame. Moreover, unlike during a post-conviction

House could nu: have Deen compelled to testy before a jury at his own criminal mal’.

“Pewioucr notes that. while imsratenal. the d:sunct coumt's credibility fieding ts also clearly enoncous. Mr

House's tesumory was identical 10 the slatemuert he made to his girlfriend at 2 wine he was nol even 2 suspect in Vis

Muncev's mai det aad a a» Jurroborated by his madd seams (indicate of Ins fight through the woods). brs

seParNt.\ dio sided and not blood stamec renrss slides. and the lemgth of nis absence from his girifnend’» warer

Pag distrns: Coss 5 obser: stems of Mr. ilouse’s éemeanor cannot justify ats credibility find:ng. especially «nen tha:

demeauy: 4 go ot least partl. the aroduc! a wis gs lags discovered °0 4 the cxinptoms of muluple sclemners

=

C. Schlup docs nyt require a petitioner to disprove all evidence of guilt.

Much of wita: Respondent chamacter:zes ay factua! (ndings are net factual findangs at ali. bus the

majority's improper. application of Sch/up to the facts developed in the district court. In each of these

instances. Responden:. jullowing the lead of the erroneous majority opinion. looks to whether equal!

credible evidence gap de construed in such 2 way as to support convicuion. This 1s not what Sch/up

requires. Schiun v. Delo. $13». a1 330° Though the Currier standard requires a substanual show ing.

1115 by no Means equivalent to the standard of Jackson ¥. Virgina, 443 U.S, 307(1979). standard thai

governs review of claims of insufficiem evidence. The Jct andar, whic focuses on whether any

rational juror could have convicted, looks 10 whether there is sufficient evidence which, if credited. could

support the conviction.”

In the most promunent of these “findings” the majority reyects the DNA evidence whowing that

Mr. House had not raped the victim because a hypothetical reasonable juror could have concluded that

' , urknown

_ Mr. House merely tr ies her home and

0 elo Ree “ eles

BS hI eh Oe

very day. This who''v ro -- he case 25 the prosecution presemed it to the jury. doe janection

unequivocally maintained throughout tnal that Mr. House, who had been convicted of a prior sex crime,

murdered Mrs. Muncey after raping her. Schlup requires a court 10 consider the case presented at inal in

light of the newly discovered evidence through the eyes of a reasonable juror. See Schlap. $13 US at

327-328; Wilkerson v. Cain. 233 F 34 886, 889, 892 (5° Cur. 2000), Paradis. ¥. Arave. 130 F.3d 385. 3%

(9 Cir. 1997). Sumularly. the majority rejects the testimony of Asiisiant Chief Medica Examuner

Cleland Blake thai the sians on Mr. House s blue yeans came irom the autopsy blood samples by

pecuiating ika: 2 seawecshle wane could have concluded tha" ‘he simmianties in enzymatic degracatior

oud have been resus ot the sumlaz env:renmerta! forces despnic the radically different condinons te

vtach the cams 20d seiutes samples Sad teeth exposed comcidest.y coming together to guts ihe wer

we ergy es tu the very same degree. or “hat some of the myriad of unidentified stains observed Dy la

entarcemen: wier the: [inst seized Mr liocse s 1ea7s gous nave actually been biood and could have

actually come trom tie: victim. Fima.ls. anc pertap> mos; astoundingly. the mayorty rejected the

evidence tha the only ume blood could have become mixed with mud on Mr, House's blue jeans. as both

parties agree 1s the case, 15 aller (ney were scized av law enforcement. Again. the mayonty speculates

that a juror culd have concluded that +2ithough there was ay mud where the victum was lalled. no mud

where her body was found, and (he only cv-dence of blood and mud coming in proximity to one another

was when House's wet muddy jeans were taken 9) law enforcement to the FBI Cnme Laboratory

together with the sample woes) Mr. House had fallen in « mystenous mud hole in the middle of the road

as he ran the approximately 2 miles from his girlinend 's trailer to the Muncey home. House v. Bell, 386

F.3d at 685.

Contrary 10 Respondent's and the mayority's views. Schiup does not require Mr. House to

elimunate all evidence of guilt. The proper question is whether it is more probable than not that any

Spent pace weds wars ten cunciaten. sboavernningnTin shows

mayonty would have answered tn the negative had it understood its duties under Schlup. The appropriate

inquiry under Sci/up iy whether any reasonable juror would have concluded that Mr. House suddenly

arose from his girlfnend’s trailer, ran over two mules in twenty minutes over hill and dale, in the middie

of a moonless night. :aking ine out Ww step to [all un a mud hole and pick himself back up, lured Ms.

Muncey from her home (or no reason whaisvever (because irrefutable DNA testing had eliminated the

prosecution's only alleged motive). killed her. hid her bod. and ran back to his girlfriend's trailer an

hour and a half atler he left. The Sixth Circu:t marority erroneously subsucuted its own judgment for that

Ma reasonae scror a cigiing the itis. cvmence egartst Mr. House against the evidence presented at the

jearee beiow. Te é:stnct court ame te S.xth Circunt masorty conciuded that the following evidence

vould aave conser ced 4 reasonahiy purer to 2ecep? this scenazwe. (7) Mr. House lied about where he wa,

wo Liat hogs and 2 belt 12) ne dic nei accuraie.y deserise the ongnn of brurses which were two old to

nave ans rele: ance w che crume. (3) be victum s daughter heard a man with a low vosce driving a car

ccespite un-rerutted evidence shaw:ny that Mr. House was on foot that might) cafl out to her mother: and

(41 Mr House sas seen or. the day alter the murder walking toward the home of a man whom he had just

told hus girlinera! he was gomg ta try to find. The distinct cour: and the Sixth Curcunt majority’ dismissed

Mr House s evidence that the gply biological evidence linking him to the crime - the bloody jeans - were

sullted duc to 1a« enforcement mishandling and or misconduct They concluded that tt may have been 3

coincidence that the container carrying sample tubes of blood from the vicom’s autopsy was opened

during trans:t to d¢ 1ested by two men who yust happened to also have Mr. House's blue yeans and that 1

might have just been @ coincidence that the same enzymes in liquid blood samples and Mr. House's blue

jeans degraded in exactiv the same manner when exposed to radically different environmen (despite

testimony o he contrary by the Assistant Chief Medical Examiner forthe State of Tennessee). Finally,

the distnct court and the mayority ignored Mr. House's compelling evidence implicating an sltemative

geadecemet

oee-8 Hubert Muncey Jr. m the victim's murder: he had

ee ee

Pater s :Y

Peet

hours hefore her death. led about that attack to iaw enforcement tried 10 arrange an alibi: and confessed

io Murdenng her in a manner consistent «ith noi only his history of spousal abuse, but also the inyunics to

her body. Yet. the lower courts failed to evaluate this evidence from the perspective of a reasonable juror

presented with 11. Thus. both the district court and the Sixth Circuit majonty erred in contravenuon of

Schlup. Schiup v. Deia. 313 U.S. at 327 1 age,

The Unnied Siates Coun of Appeals quite simply misapprehended its obligation to took at all of

the tecord evidence undermining the evidence used to convict Mr. House and that aftirmat:vely posnted

io Ms mngcence. BY Lae Aarrewest oF Margins. 1. Issued an cn Hum CecisiON which other courts will look

in for guidance. <1 ne: corrected. At the same tm. 11 left an innocent man on Tennessee's death row

despute a cna! srazzit woh constitunonal erres with no hope that 2 sury of nwelve of his peers will ever

perder a elem! tase) por all of the jacts now an the record Moreover. as the Petition outlines in

detat! a: pages 2S through 2S the ‘eéerai sezns oF appeals are spli: and have appired Schiup

iNCORS:stenils iO casey with indistingussnaivle tacty. Juramulle +. Stewart, 40 F.3d 677. $83 (9* Cor.

2003). Wilkerson v Caen, 233 F.3d at 89!: Lucas v. Johnson, 132 F.3d 1069, 1077-1078 (S* Cir. 1998).

The Court shouid grant ceruiorari to clarify the “substanual miscarmage of justice” excepuon to the

procedural har ruie under Schiup. to reverse an etroneous en hanc opumon of the United States Coun of

Appeais for the Sixth Circuit which now has the potential to misicad every court presented with evidence

vt actual wnnavence. and w provide justice to an mnoceni man who has spent twenty years on

Tennessee's death row for a crime he did not commit.

il. The Herrera issue was considered by the circult court anid ts property reviewed on

Certiorari,

Respondent offers only the junsdictional grounds why the Court should not take tris exceedingly

Tare opportunity to clanfy the extent and requirement of substantive claims of actual innocence in a case

where six judges of a United States Circuit Court of Appeals opine thet she Petitioner has cstablished his

Nght to immediate release from state custody. Respondent argues thet, because the Herrera issue was

nol included mm the certificate of appealability 1ssued by the panel. the circuit court, and now this Court,

lacks yunsdiction to consider this important question. The cireunt coun may sua sponse consider issues

which were not included in the order granting the ceruficate of appealability. Filor v. Mamer, 373 Fk

32°, 337, at tn 13.13 Car. 2004). LS. v. Mongan, 244 F.3d 674, 674-675 (9% Cy. 2001). In this case, the

circuit Coun did just that when it tssued 1s opinion in House v. Bell. 311 F.34 767 (6* Cir. 2002), cert.

dented 339 US. 937 (2003). in fac: the circuit court's consideration of the Hererra issue was one of the

sahects of Responden: s petition seexing cemuoran review of thai decison. There 1s no procedural or

iusd.ctronal obstacle to the Court's consideration.

Kt has deer. well over a decade since Herrera was decided. The uncertainty of thai decision has

20 tne het er todets! Courts coniused as te the standard for resolving subsianuve claims of actual

innocence OF ever. anether such claims ace CogT zadle wn federal nabeas corpus. Here. in this

evceedingh tare case where the eecdence O° actual mnocence is Wuls overwhelmung and where the

Tennessee Supreme Coun. when specificaily asked by the circuit court to identify the state cour

procedures available to Mr House. hay already refused to indicate whether it will correct the grievous

errors they have camm:tied over the pasi twenty vears, this Court should not hesitate to state clearly

whether persons «ho have completely eviscerated the State's case for guilt. and presented affirmative

evidence of innocence may obtain tedera! habeas corpus relief

As Justices O Connor and Kennedy observed tn Herrera:

Regardless of the verbal formula employed—“contrary to contemporary standards of

decency.” posi, at 876 (dissenting opinion) (relying on Ford v. Wainwright, 477 U.S.

399, 406 (1986), “shocking to the conscience,” past, at 876 (relying on Rochin v.

California, 342 U.S. 165, 172 (1952)). or offensive 10 a" "principle of justice so rooted

in the traditions and consctence of our people as to be ranked as fundamental,” “ anve. at

864 (opinion of the Court) (quoting Medina v. California, $05 U.S. 437, 445-446 (1992).

in turn quoting Porterson v. New York. 432 U.S. 197. 202 (1977))-the execution of a

legally and factually mnocent person would be a consuitwuonally intolerable event.

Rerrera v. Collins. $06 US$ 390. 419 (1993).

It is me to give effect and direction 1 the federal couns’ power to prevent this constituvonally

intolerable event.

Respondent s atiempt to portray the majority's decision as nothing more than properly

deferential to the factual findings of earlier courts is unavailing. Such deference is unwarranted excep! as

to factual detenr:natiacs which are not ciearh erroneous. Furhernore. even with al] due deference. the

csteunl Coun wauld nave teuched an opposite conclusion had 1: abrded by the Court's holdings in Schlup

and Herrers Cemuorsr: should be ysutted as to hoth questions

«

Respecttuiiy submitted.

$30 South Gay Street Suite 900

Knoxville, TN 37902

(865) 637-7979

Counsel uf record for Petitioner