# Opposition Brief — House v. Bell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0116%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 518

## Text

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IIL (1990) (repealed 1995).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 § 40-30-11 2(a) (1990) (repealed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 § 40-30-112(bx 1) (1990) (repealed 1995).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. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0116%3A04. Public record. Not legal advice.