Appendix — Stewart v. Carriger
Supreme Court brief1998
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Supreme Court, U.S.
FILED
971509 MAR 1 31998
©: —__serice OF THE CLERK
A AL ER TES AeA TEO ESS FREE
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997
N
TERRY L. STEWART, DIRECTOR.
ARIZONA DEPARTMENT OF CORRECTIONS.
AND GRANT WOODS, ARIZONA ATTORNEY GENERAL.
PETITIONERS,
-VS-
PARIS HOYT CARRIGER,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
For THE NINTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
GRANT WOODS
ATTORNEY GENERAL
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS SECTION
JOSEPH T. MAZIARZ
ASSISTANT ATTORNEY GENERAL
(COUNSEL OF RECORD)
1275 WEST WASHINGTON
PHOENIX, ARIZONA 85007-2997
TELEPHONE: (602) 542-4686
ATTORNEYS FOR PETITIONER
Part 1 of 2
FOR PUBLICATION |
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Paris Hoyt CaRRIGER,
Petitioner-Appellant, No. 95-99025
a . D.C. No.
Terry L. Stewart, Director of the CV-95-01617-PGR
Arizona Department of
Corrections, asiaeat
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
March 27, 1997—San Francisco, California
Filed: December 17, 1997
Before: Procter Hug, Jr., Chief Judge, James R. Browning,
Mary M. Schroeder, Jerome Farris, Harry Pregerson,
Stephen Reinhardt, Alex Kozinski, Ferdinand F. Fernandez,
Thomas G. Nelson, Andrew J. Kleinfeld, and
Sidney R. Thomas, Circuit Judges.
Volume |
Opinion by Judge Schroeder,
Volume 2
Dissent by Judge Kozinski
CARRIGER Vv. STEWART
SUMMARY
Criminal Law and Procedure/Habeas Corpus
Sitting en banc, the court of appeals vacated a panel opin-
ion and reversed a judgment of the district court. The court
held that on federal habeas corpus, the “miscarriage of
justice” exception to the abuse-of-the-writ doctrine allows
review of an otherwise-barred assertion of constitutional error
tied to the petitioner’s claim of actual innocence.
Appellant Paris Carriger was charged in Arizona with capi-
tal murder. The State’s star witness was Robert Dunbar, who
testified under a grant of immunity. Carriger’s defense was
that Dunbar was the killer, and the pivotal issue in the case
was Dunbar’s credibility. In closing argument, the prosecutor
vouched for Dunbar’s credibility, stating repeatedly that Dun-
bar was not a liar. In fact, Dunbar was well known by state
authorities to be a liar, a career burglar, and given to blaming
others for his crimes. Carriger was convicted and sentenced
to death. The Arizona Supreme Court affirmed.
Carriger commenced state postconviction proceedings. His
principal claim was that trial counsel had been ineffective for
not investigating Dunbar adequately, and not obtaining Dun-
bar’s corrections file, which revealed that he was an habitual
liar with a sociopathic personality. The judge who had pre-
sided at Carriger’s trial denied relief without a hearing. The
Arizona Supreme Court affirmed.
In 1985, Carriger filed a federal habeas corpus petition
challenging his conviction and sentence. The district court
denied relief.
While Carriger’s federal appeal was pending, he filed a sec-
ond state postconviction petition, this time based on new evi-
dence that Dunbar had lied at trial, bragged of framing
CARRIGER V. STEWART
Carriger, and instructed his family to lie to investigators and
at trial.
Seriously ill, Dunbar confessed under oath that he was the
killer and that he had framed Carriger. Dunbar’s wife Joyce
also recanted her trial testimony that Dunbar was with her on
the night of the murder, testifying that it was false, and that
Dunbar had admitted to killing the victim.
Three weeks later, Dunbar wrote to the new postconviction
judge and recanted. Recalled to testify, he stated that his trial
testimony had been truthful, and that his recent swom confes-
sion was a lie. The trial court denied relief. The Arizona
Supreme Court affirmed.
In a second federal habeas corpus petition in 1991, Carriger
claimed for the first time that he was entitled to relief because
no rational trier of fact could conclude beyond a reasonable
doubt that he murdered the victim in light of all the presently
available evidence, i.e., that he was actually innocent. The
main underpinning for Carriger’s claim was Dunbar’s recan-
tation in the state postconviction proceedings of his trial testi-
mony.
Carriger also claimed that the state postconviction court
erred by failing to consider Dunbar’s alleged participation in
the murder as a circumstance mitigating Carriger’s guilt of the
death penalty. His petition included three other claims of con-
stitutional error at trial, in sentencing, and in the state post-
conviction proceedings.
Citing Herrera v. Collins, 113 S. Ct. 853 (1993), the dis-
trict court denied Carriger’s petition, ruling that he was not
entitled to federal habeas corpus relief based on a claim of
actual innocence. In Herrera, the Supreme Court stated that
on federal habeas corpus, a petitioner asserting a
“freestanding” claim of actual innocence must surmount an
A-3
CARRIGER V. STEWART
“extraordinarily high” threshold and make a “truly
persuasive” showing.
Carriger appealed and obtained a stay of execution. How-
ever, the court of appeals rejected his claims.
In 1993, Carriger filed a third state postconviction petition.
He proffered new evidence that Dunbar had again confessed
to the crime, this time to a celimate in 1991, just before Dun-
bar’s death. Carriger also contended that the Arizona prosecu-
tor had withheld exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963). The trial court denied relief,
and the Arizona Supreme Court affirmed.
Carriger filed a third federal habeas corpus petition, con-
tending that all of the now-available evidence, including Dun-
bar’s confession and the contents of his corrections file,
demonstrated that Dunbar committed the crime, and that Car-
riger was actually innocent. This was a “freestanding” claim
of actual innocence: the evidence established his innocence
sufficiently to render his execution unconstitutional, irrespec-
tive of any constitutional error at his trial or at sentencing.
Carriger also raised claims of constitutional violations at his
trial, including the State’s suppression of the contents of Dun-
bar’s corrections file, and misconduct by the prosecutor in
telling the jury that Dunbar was not a liar.
The district court rejected Dunbar’s claim of actual inno-
cence, ruling that his claim of withheld evidence could have
been raised earlier, and therefore constituted an abuse of the
writ.
A panel of the court of appeals affirmed, albeit expressing
doubt about the integrity of the jury’s verdict, and suggesting
that the State reconsider its decision to execute Carriger. The
court granted Carriger’s petition for rehearing en banc.
{1} The threshold for a freestanding claim of innocence
contemplates a stronger showing than insufficiency of the evi-
CARRIGER V. STEWART
dence to convict. The required showing would have to go
beyond demonstrating doubt about the petitioner’s guilt, and
affirmatively prove that he is probably innocent. [2] Requir-
ing affirmative proof of innocence is appropriate because the
petitioner is claiming that he is entitled to relief despite a con-
Stitutionally valid conviction.
[3] Carriger did not meet this burden. Although the post-
conviction evidence he presented cast a shadow of doubt over
the reliability of his conviction, nearly all of it served only to
undercut the trial evidence, not affirmatively prove Carriger’s
innocence. Although Dunbar’s confession constituted some
evidence tending to show Carriger’s innocence, the contradic-
tions in Dunbar’s stories and his history of lying could not be
ignored. The confession itself fell short of affirmatively prov-
ing that Carriger more likely than not was innocent.
[4] The constitutional claims Carriger raised could have
been raised in his first federal habeas petition, and therefore
would ordinarily have been barred under the abuse-of-the-writ
doctrine. However, Carriger could have his otherwise-barred
claims considered on the merits if his claim of actual inno-
cence was sufficient to bring him within the narrow class of
Cases implicating a fundamental miscarriage of justice.
[S] The “miscarriage of justice” exception is not an inde-
pendent avenue of relief. Rather, if established, it functions as
a “gateway,” permitting a habeas petitioner to have consid-
ered on the merits claims of constitutional error that would
otherwise be procedurally barred.
[6] The threshold for making out the exception is lower
than the “extraordinarily high” threshold for freestanding
claims of innocence. A petitioner asserting both innocence
and constitutional error need only present evidence of inno-
cence strong enough that a court cannot have confidence in
the outcome of the trial, un/ess the court is satisfied that the
trial was free of nonharmless constitutional error. [7] To per-
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CARRIGER V. STEWART
mit consideration of his procedurally barred claims, a peti-
tioner must show that in light of all the evidence, it is more
likely than not that no reasonable juror would have found the
petitioner guilty beyond a reasonable doubt.
[8] Although Carriger did not affirmatively prove his actual
innocence sufficiently to satisfy Herrera, he showed doubt
about the validity of his conviction more than sufficient to
permit consideration of his constitutional claims. [9] It was
unlikely that any reasonable juror, knowing that Dunbar con-
fessed under oath without immunity to committing the mur-
der, would conclude beyond a reasonable doubt that the
murder was committed by Carriger.
{10} Carriger’s strongest claim of constitutional error at
trial was that the state withheld Dunbar’s corrections file,
which would have revealed his long history of lying to police
and blaming his crimes on others.
[11] The prosecution is required to disclose material excul-
patory evidence without request. Evidence is material if there
is a reasonable probability that, had it been disclosed to the
defense, the result of the proceeding would have been differ-
ent. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. [12] Material evidence
includes evidence bearing on the credibility of government
witnesses. The need for disclosure is particularly acute when
the government presents witesses who have been granted
immunity in exchange for their testimony.
{13} Dunbar was the prosecution's star witness, and was
known by police and prosecutors to be a career burglar and
a six-time felon, with a criminal record going back to adoles-
cence. When the state decides to rely on the testimony of such
a witness, it is the state’s obligation to tum over all informa-
tion bearing on that witness’s credibility.
[14] To the extent that defense counsel's failure to request
the file was a cause of the State’s failure to disclose it, that
CARRIGER V. STEWART
failure constituted ineffective assistance of counsel. Either
way, Carriger was denied a fair trial. [15] The contents of
Carriger’s file had to be deemed material. Dunbar’s credibil-
ity was critical.
[16] The district court erred when it concluded that Car-
riger had not been prejudiced by the withholding of the infor-
mation because the jury knew that Dunbar was a burglar
testifying with immunity. [17] The only evidence before the
jury that Dunbar had lied was his admission that he had falsi-
fied a gun-registration form. There was no evidence concem-
ing his long history of falsely blaming others for his
misdeeds, or his lifelong history of violence.
[18] The state’s claim that the undisclosed information
made no difference was severely undercut by the prosecutor’s
Strenuous vouching for Dunbar’s truthfulness. Knowing Dun-
bar’s credibility was the key to the case, the prosecutor
emphasized to the jury that even though Dunbar was a career
burglar, he was truthful.
[19] There was more than a reasonable probability that the
outcome of Carriger’s trial would have been different had
Dunbar’s records been disclosed. The result was a verdict not
worthy of confidence, and a trial that denied Carriger due pro-
cess of law. Carriger was entitled to a new trial.
Joined by Judges Farris, Femandez, T.G. Nelson, and
Kleinfeld, Judge Kozinski dissented. He wrote that Dunbar’s
repudiated recantation was insufficient to warrant habeas cor-
pus review of Carriger’s claim of actual innocence.
COUNSEL
Denise I. Young, Arizona Capital Representative Project,
Tempe, Arizona, for the petitioner-appellant.
A-7
CARRIGER V. STEWART
Joseph T. Maziarz, Assistant Attorney General, Phoenix, Ari-
zona, for the respondent-appellee.
OPINION
SCHROEDER, Circuit Judge:
INTRODUCTION
Paris Hoyt Carriger was convicted and sentenced to death
for the brutal murder of Robert Shaw in 1978. Shaw was
beaten on the head with a skillet and strangled with his own
necktie during a robbery of his Phoenix jewelry store. The
chief prosecution witness was Robert Dunbar; Carriger’s
defense was that Dunbar committed the murder.
After the trial and unsuccessful appeal, Carriger learned of
documents in the state’s records, never disclosed before trial,
indicating that Dunbar was a known habitual liar accustomed
to blaming others for his own crimes. In our first en banc
opinion in the case, we held that Carriger’s challenge to his
counsel’s failure to investigate Dunbar’s background came
too late. Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992)
(en banc).
After Carriger’s first federal habeas corpus petition had
been filed, Dunbar actually confessed in open court that he
was the murderer and that Carriger was innocent. Despite the
passage of a decade since Dunbar’s swom confession, and
despite numerous attempts by Carriger to raise the issue, we
have not yet considered on the merits the effect of Dunbar’s
swom confession on Carriger’s continued incarceration and
sentence of death.
This habeas proceeding concerns whether Carriger has ade-
quately shown either actual innocence that would foreclose
A-8
CARRIGER V. STEWART
imposition of the death penalty, or sufficient doubt about his
guilt to overcome procedural bars and permit consideration of
the merits of his constitutional claims of trial error. The dis-
trict court and the panel said no. We took the case en banc
because of the exceptional importance of the issues concem-
ing whether the state may execute an individual whose guilt
is shrouded by doubt and who has raised serious claims of
constitutional error at trial. We now hold that we must con-
sider Carriger’s claims, and that those claims warrant a new
trial.
1. Procedural History
A. Trial and Sentencing
Carriger was tried in July 1978. The physical evidence at
trial was not strong. The prosecution’s case relied principally
on the testimony of Robert Dunbar, who had contacted police
the moming following the murder with an offer of informa-
tion in exchange for immunity. With immunity, Dunbar testi-
fied that Carriger had confessed the crime to him immediately
after it happened, had described the crime in considerable
detail, and had sought Dunbar’s help to dispose of the loot
and evidence. Nearly all of the physical evidence used at trial
was evidence to which Dunbar had led police the morning fol-
lowing the crime.
Carriger was convicted of robbery and murder. His counsel
later testified in postconviction proceedings that during his
investigation and trial preparation he did not take into account
that his client faced the death penalty. At the sentencing
phase, counsel presented no mitigation case. The trial judge
sentenced Carriger to 99-100 years for the robbery and death
for the murder.
B. Appeal
Following sentencing, Carriger dismissed his lawyer and
was appointed new counsel. On appeal, Carriger challenged
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CAaRRIGER V. STEWART
a number of evidentiary rulings, trial counsel’s effectiveness
in cross-examining Dunbar, and the constitutionality of Arizo-
na’s death penalty statute. The Arizona Supreme Court
affirmed. See State v. Carriger, 599 P.2d 788 (Ariz. 1979)
(Carriger J).
C. 1982 State Postconviction Proceedings
In 1982, represented by new counsel, Carriger filed his first
petition for state postconviction relief. The judge who had
presided at Carriger’s trial denied the petition without a hear-
ing. On appeal, the Arizona Supreme Court found that Car-
riger’s counsel at sentencing had been ineffective, and
ordered a new sentencing hearing. See State v. Carriger, 645
P.2d 816, 820 (Ariz. 1982) (Carriger I). The court also
ordered that Carriger be given a hearing on his other postcon-
viction claims. See id.
Carriger’s principal postconviction claim was that his trial
counsel had been ineffective for failing to investigate Dunbar
adequately and for failing to obtain Dunbar’s Department of
Corrections file, despite a request from Carriger that he do so.
After remand, Carriger for the first time obtained Dunbar’s
corrections file through court-ordered discovery. The file con-
tained evidence that Dunbar had long been known to state
a liar. The trial court resentenced Carriger to death, and
denied postconviction relief, R.T. 10/27/82 at 58, Supp. R.T.
10/27/82 at 14,
The Arizona Supreme Court affirmed, ruling that Carriger’s
claim of ineffective assistance was known to Carriger at the
time of his appeal, should have been raised then, and had been
waived. See State v. Carriger, 692 P.2d 991, 995, 996 (Ariz.
1984) (Carriger II]. The court also rejected on the merits
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CARRIGER V. STEWART
claims that Carriger was entitled to a lesser-included instruc-
tion under the rule of Beck v. Alabama, 447 U.S. 625 (1980),
see Carriger Ill, 692 P.2d at 996-97, and that Arizona’s death
penalty was unconstitutional. See id. at 1008-11.
D. 1985; First Federal Habeas
In 1985, Carriger filed his first federal petition for habeas
corpus, presenting the claims exhausted in Carriger III. The
district court granted Arizona’s motion for summary judg-
ment. Carriger filed a notice of appeal, but soon after
requested that this court stay consideration of his appeal while
he pursued a new state postconviction petition, based on
newly discovered exculpatory evidence. See Carriger v.
Lewis, 971 F.2d 329, 331 (9th Cir. 1992) (en banc) (Carriger
IV) (superseding Carriger v. Lewis, 948 F.2d 588 (9th Cir.
1991) (panel opinion)). We granted Carriger’s motion and
stayed his appeal.
E. 1987 State Postconviction Proceedings
Carriger’s second state postconviction petition was based
on new information from Dunbar’s family and friends indicat-
ing Dunbar had lied at trial regarding his whereabouts during
the crime, had bragged of framing Carriger, and had
instructed his family to lie to investigators and at trial.
By 1987, the judge who had presided at Carriger’s trial had
retired. At July and August hearings before a new judge,
Joyce Stevens (Dunbar’s wife at the time of the murder) and
her children testified that Dunbar’s alibi and Stevens’ corrob-
oration of it at trial were false. Stevens also testified that Dun-
bar left the house that afternoon and upon returning confessed
the crime to her. Several witnesses, including a close friend
of Dunbar’s, testified that Dunbar had bragged of framing
Carriger for the crime. Stevens and her children testified that
Dunbar was an abusive person who had beaten them, had pre-
viously instructed them to lie, and had threatened their lives
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CARRIGER Vv. STEWART
if they did not comply. Dunbar then took the stand and denied
the allegations of abuse, and stated his trial testimony had
been truthful. The evidentiary hearing was continued to per-
mit counsel to investigate further evidence bearing on the
Credibility of the conflicting testimony given in the July and
August hearings.
Not long after his testimony, Dunbar (through his own
counsel) contacted Carriger’s counsel. Dunbar, imprisoned on
an unrelated conviction, was Seriously ill. Dunbar said he
believed he was dying, wanted to make his peace with God,
and then confessed that he had robbed and murdered Robert
Shaw, and had framed Carriger. 3
In October 1987, at the reconvened evidentiary hearing,
Dunbar confessed under oath. He described the crime in great
detail, and diagrammed the jewelry store, accurately depicting
where Shaw's body was found. Dunbar testified that he and
Stevens had committed the crime together, and that Stevens
had struck the first blow to Mr. Shaw.
Three weeks after his swom in-court confession, Dunbar
wrote to the judge and recanted. Recalled to the stand in
December 1987, Dunbar testified that his 1978 trial testimony
had been truthful and his recent swom confession a lie. j
In February 1988, the trial court denied postconviction
relief. The judge, who had not presided at trial and therefore
could make no demeanor comparisons, rejected both Stevens’
testimony and Dunbar’s confession as incredible, principally
because he thought them inconsistent with the trial evidence.
The trial court also noted that Stevens recanted her trial testi-
mony after being given immunity, and that Dunbar’s confes-
sion was short-lived and motivated by claimed desires for
money and revenge. State v. Carriger, No. CR 101609 (Ariz.
Sup. Ct. Feb. 22, 1988). The Arizona Supreme Court affirmed
without comment.
CARRIGER V. STEWART
F. 1991-92: Second Federal Habeas Proceedings
Carriger then returned to federal court, and sought to raise
his claims based on the 1987 state court testimony both in the
district court and directly in this court. In a 1992 en banc
opinion, we held that Carriger had not followed procedures
adequate to give either this court or the district court jurisdic-
tion to consider his new claims. See Carriger IV, 971 F.2d at
331. As a result of those jurisdictional rulings, the merits of
Carriger’s claims based on the 1987 evidence were not con-
sidered in the 1991-92 federal habeas proceedings, and, until
now, have never been considered by this court.
In the 1992 en banc proceeding, we did finally reach the
claims raised in Carriger’s first habeas petition, i.e., the
Claims rejected by the Arizona Supreme Court in Carriger III.
A divided en banc court rejected Carriger’s ineffective assis-
tance claim as procedurally barred, and rejected on the merits
his claim of entitlement to a lesser-included instruction under
Beck v. Alabama, and his challenge to the constitutionality of
Arizona’s death penalty statute. See Carriger IV, 971 F.2d at
333-36.
G. 1993: Third State Postconviction Petition
In 1993 Carriger, again represented by new counsel, filed
a third state postconviction petition. His petition was based on
new evidence that Dunbar had again confessed the crime, this
time to a cellmate in 1991, shortly before Dunbar’s death.
Carriger also raised numerous other claims, including the
claim that the State withheld exculpatory evidence. In 1994,
the trial court denied relief. See State v. Carriger, No. CR
101609 (Ariz. Sup. Ct. Apr. 11, 1994). The Arizona Supreme
Court affirmed without comment in July 1995.
H. The Current Federal Habeas Proceedings
In August 1995, Carriger filed his current petition, in which
he argues that all of the now-available evidence, including
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CarriGer v. STEWART
Dunbar’s confession and the contents of Dunbar’s corrections
file, demonstrates that Dunbar committed the crime and that
Carriger is actually innocent. Carriger also raises serious
claims of constitutional violations at his trial, including a
Claim that the state Suppressed the contents of the corrections
file and that the government misled the jury when it told them
Dunbar was not a liar. The district court rejected Carriger’s
claim of actual innocence, and held that his claim of withheld
evidence could have been raised earlier, and therefore consti-
tuted an abuse of the writ. See Carriger v. Stewart, No. CIV-
95-1617-PHX-PGR, Memorandum of Decision and Order at
10-19, 20-22, (D. Ariz. Nov. 2, 1995).
A panel of this court affirmed the district court’s ruling that
Carriger had failed either to show that he was actually inno-
cent of the crime or to create a sufficient doubt about the
accuracy of the verdict to permit consideration of his other-
wise abusive claims. See Carriger v. Stewart, 95 F.3d 755,
758-61, 762-63 (9th Cir. 1996) (Carriger V). The panel
expressed considerable doubt about the integrity of the jury’s
verdict in light of the present record, and suggested, but did
not order, that the state reconsider its decision to execute Car-
now vacate the panel opinion, and reverse the district court.
We hold that Carriger is entitled to a new trial.
ll. Facts
A. The Robbery and Murder
In December 1977, Paris Carriger was released from
prison, and soon contacted Robert Dunbar, a prison acquaint:
ance. Carriger acquired a van and some tools, and began
doing construction work. When he needed a place to stay,
Dunbar agreed that Carriger could park his van on Dunbar’s
Property and live in it. On March 12, 1978, Carriger parked
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CARRIGER V. STEWART
his van next to the house Dunbar shared with his wife, Joyce
Stevens, and her children.
The next moming, March 13, Carriger called in sick at
work. He then spent the day with Dunbar. The two visited a
number of gun shops, and Dunbar eventually purchased a .22
caliber Luger pistol. Because it was illegal for Dunbar, a con-
victed felon, to purchase a gun, Dunbar lied on the federal
gun purchase form, falsely claiming to have no felony convic-
tions. Later in the day, the two visited Shaw’s jewelry store,
where Dunbar had his watch repaired. After leaving the store,
one remarked to the other that the store would be an easy
place to “hit.” Dunbar testified at trial that Carriger made this
remark, though Dunbar later testified in postconviction pro-
ceedings that he said it himself.
The men retumed to Dunbar’s house from Shaw’s store
between 3:00 and 3:30 p.m., and then went their separate
ways. They met again at Dunbar’s house between 5:30 and
6:30 that evening. In the interim, the robbery and murder were
committed at Shaw’s jewelry store.
In their later testimony, Dunbar and Carriger each accused
the other of committing the crime. Carriger testified at his
1982 postconviction hearing that upon retuming to Dunbar’s
house shortly after 3:00, Dunbar got into an argument with his
wife, at which point Carriger left in his van and went to a
nearby restaurant. Carriger testified he then went shopping for
jeans, browsed briefly in an adult bookstore, and returned to
Dunbar’s house. Parking his van, he walked to a nearby con-
venience store and back, finally returning at about 6:00. Car-
riger testified that shortly after his return, as he sat in his van
listening to the radio, Dunbar showed up. According to Car-
riger, Dunbar had a guilty look, and was holding a pair of
Carriger’s boots. Dunbar allegedly told Carriger that Carriger
Should replace the boots because they were “hot,” suggesting
Dunbar had wom them during the commission of a crime.
Carriger testified that Dunbar then showed Carriger a bag
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CARRIGER Vv. STEWART
Containing a half dozen watches, and offered the watches to
Satisfy a debt Dunbar owed Carriger. Carriger refused the
Dunbar, on the other hand, testified at trial that upon return-
ing home sometime after 3:15, he retired for a nap with his
wife. He said he was awakened sometime between 5:30 and
6:30 by Carriger, who summoned Dunbar outside. According
Dunbar said Carriger took Dunbar outside to his van, where
he showed Dunbar an attache case containing jewelry and
watches, and asked for Dunbar’s help in removing the tags.
Dunbar testified that together they removed the tags from the
jewelry, and placed the tags in a paper bag. Dunbar also testi-
fied that Carriger described how he had tied up Shaw and
killed him by beating him with a skillet and then Choking him
Dunbar’s and Carriger’s stories agree that after they
rejoined at Dunbar’s house, both knew that at least a robbery
had been committed. Shortly afterward, Dunbar and Carriger
attache case, however, bore only Dunbar’s fingerprints, not
Carriger and Dunbar then went to a massage parlor. While
ere, Dunbar produced a loose diamond taken from Shaw’s
and tried to sell it to a massage parlor employee. Dunbar and
CARRIGER V. STEWART
Carriger continued on to a shopping mall, where Dunbar
again tried several times to sell pieces of the stolen jewelry
that he had with him. While Dunbar showed the jewelry to a
number of mall jewelers, Carriger bought new boots. The two
then retumed to Dunbar’s house.
B. Dunbar's Role in the Investigation
The following moming, Dunbar contacted detectives of the
Phoenix Police Department and told them he had information
regarding the murder and robbery. He also told them he had
committed a recent (unrelated) burglary, and wanted immu-
nity in exchange for his information and testimony. Detec-
tives met Dunbar at a mall coffee shop, where Dunbar gave
them pieces of jewelry taken during the robbery. He told the
detectives that Carriger had committed the robbery and mur-
der, and had asked for Dunbar’s help in selling the stolen jew-
elry and getting rid of the evidence.
Dunbar told the detectives that Carriger might be armed
with the handgun Dunbar had purchased the previous day, and
that Dunbar considered Carriger to be extremely dangerous.
Dunbar said that Carriger would kill police officers if he saw
them approaching the residence. At the detectives’ request,
Dunbar called Carriger with a lie designed to get Carriger out
of the house. Once Carriger left Dunbar’s house, police pulled
his van over and arrested him. Carriger was unarmed and did
not resist arrest.
Dunbar also told the detectives he and Carriger had gone
driving north of Phoenix the previous evening to dispose of
the evidence. According to Dunbar, Carriger threw evidence
out the window as Dunbar drove. After arranging the ruse
leading to Carriger’s arrest, Dunbar retraced his drive of the
previous evening accompanied by a homicide detective, and
led the detective to evidence discarded along the roadside,
including a jacket, gloves, and boots allegedly wom by Car-
riger during the robbery, business cards from Shaw Jewelers,
A-17
CARRIGER Vv. STEWART
Robert Shaw's wallet and driver’s license, and the Cut-up
pieces of Shaw’s credit cards. Dunbar also direct-d police to
the home of Ms, White, where they recovered the two cases
Carriger had left the Previous evening. Finally, Dunbar led
police to a pair of jeans in the canal behind Dunbar’s house,
where he said Carriger had discarded them. The canal was
One of the detectives who met Dunbar at the mall testified
at trial that the detectives took the story Dunbar told them at
face value. The same detective stated in a 1994 affidavit that
one reason he took Dunbar’s word was that he knew at the
time that Dunbar was a longtime informant for the Phoenix
than reliable, and the detective who knew of Dunbar’s infor-
mant status and took his story at face value in 1978 stated in
his 1994 affidavit that he now believes Dunbar Participated in
Shaw’s murder. Dunbar was never taken into custody, and
neither his person nor his house was ever searched.
C. The Evidence and Arguments at Trial
At trial, Dunbar, granted the immunity he requested, was
the state’s chief witness. He testified that he had been home
asleep at the time of the robbery, and that Carriger had awak-
ened him and confessed the crime. Dunbar’s wife corrobo-
rated Dunbar’s testimony that the two had been asleep
together between 4:00 and 6:00 that afternoon.
In closing argument, the Prosecutor vouched for Dunbar’s
credibility, stating repeatedly that Dunbar was not a liar. The
Prosecutor assured the jury that “[i}f there was any indication
A-18
|
|
i
CaRRIGER V. STEWART
of his [Dunbar’s} guilt or complicity in this, he would be on
trial with him [Carriger].”
In addition to Dunbar’s testimony and the physical evi-
dence Dunbar had rrovided to the police, the state presented
two additional pieces of physical evidence against Carriger.
The first was a key to the attache case containing the stolen
jewelry, which the arresting officer testified was found in Car-
riger’s wallet when he was arrested. The second was a single
fingerprint of Carriger’s, which was found on the adhesive
tape used to bind the wrists of the victim. The tape was the
Same type as Carriger kept in a first-aid kit in his van.
Because Carriger did not testify at trial, he offered no direct
explanation of the key. Defense counsel did introduce evi-
dence showing it was possible to plant a key in Carriger’s
prison property locker, and suggesting that the only keys in
Carriger’s possession when he was arrested were keys to his
van and Dunbar’s house. The defense explanation of the fin-
gerprint was that the tape was Carriger’s, and his fingerprint
was already on the end of the roll when Dunbar took the tape
from Carriger’s van and used it to commit the crime.
D. Post-trial Discovery of Dunbar's Corrections File
As a result of court-ordered discovery in the 1982 state
postconviction proceedings, Carriger’s counsel for the first
time obtained Dunbar’s corrections file. The file revealed that
Dunbar was well known by state authorities to be a liar. Using
Dunbar’s file, Carriger’s 1982 postconviction counsel located
prison superintendents, guards and fellow prisoners who testi-
fied that Dunbar was a pathological liar, with a reputation for
manipulation and deceit well beyond even that expected in the
generally dishonest prison environment.
Dunbar’s file showed him to be a prolific career burglar,
whose career included committing ninety-two burglaries in
one six-month period. Most important, the file revealed a pat-
A-19
CARRIGER vy. STEWART
Dunbar displayed behavior Strikingly similar to his behavior
following the 1978 Shaw robbery/murder. immediately after
Dunbar’s corrections file revealed other facts inconsistent
with Dunbar’s trial testimony. Although Dunbar had testified
that he was “not a robber” and had never used force, violence,
Or a gun in a burglary, his file contained admissions that he
had committed armed robberies of savings and loans, that he
had aided and abetted armed robberies of convenience Stores,
and that he had used a gun in at least one burglary. The file
also contained a claim by Dunbar that he had been involved
in a shootout with Phoenix police.
Finally, Dunbar’s file revealed a long history of violence.
Dunbar had been committed to the Arizona State Hospital
A-20
ee
CaRRIGER V. STEWART
didn’t get what he wanted. Another report stated that Dunbar
had been diagnosed as having a sociopathic personality.
E. Dunbar's Confessions
In 1987, at an evidentiary hearing on Carriger’s postconvic-
tion petition, Dunbar confessed under oath in open court that
he had robbed Shaw’s jewelry store and murdered Robert
Shaw. He testified that he had committed the crime along
with his wife, Joyce Stevens, and that he had framed Carriger
to avoid prosecution. At the hearing, Dunbar described the
crime in detail, including the layout of the store and the back
room where Shaw's body was found. Dunbar accurately
described the method of Shaw’s death, and the position ina
which his body was left. He stated that his wife had first
struck Shaw with the skillet, but that he then finished Shaw
off with the skillet and the necktie. Dunbar stated that he and
his wife had wom gloves during the crime, and that he had
bound Shaw’s wrists using adhesive tape from the first-aid kit
in Carriger’s van.
Dunbar testified that in the past he had often shifted the
blame to others for his own crimes. He said that consistent
with his past practice, his thoughts after committing the crime
immediately tumed to finding someone on whom to pin the
blame. That someone, he testified, happened to be Carriger.
Dunbar also confessed the crime in a four-page letter to a
woman with whom he corresponded through a prison ministry
program. Dunbar’s letter described the crime in sufficiently
vivid detail that it frightened the ministry correspondent, who
Stopped her correspondence with Dunbar. The correspondent
has declared in an affidavit that she reported the letter to the
Arizona Attomey General’s office, and was asked to forward
the letter to them by mail, which she did. The Attomey Gen-
eral’s office never stated whether it received the letter or
knows of its whereabouts; the letter itself has never been pro-
duced.
CARRIGER Vv. STEWART
ae
"The dissent seizes Upon an inconsistency between Dunbar's confes-
sion, which stated that he and Joyce committed the murder, and Joyce's
CARRIGER V. STEWART
Several of Stevens’ children testified that Dunbar was an
abusive and controlling figure, who regularly beat them and
instructed them to lie to the prosecution concerning his
involvement in this case. Stevens also testified that the day
after the robbery, while she was doing the family laundry, she
found the clothes Dunbar had worn the previous day, and that
there was blood on the pants that she could not get out. She
testified that when Dunbar saw the blood-stained pants drying
on the porch, he became angry that Stevens had found them,
and told her to leave his things alone. He took the pants, and
she never saw them again.
Richard Fein, a close friend of Dunbar’s, testified in July
1987 that Dunbar had told him several different times that his
favored method of getting rid of evidence was to cut it up into
pieces and then drive around the desert, disposing of it a little
at a time, so it couldn’t be connected up. Fein also testified
that Dunbar described his technique for maintaining a consis-
tent lie when he was shifting blame for his crimes to others.
Finally, both Stevens and her mother testified that Dunbar
had often stated that he would never leave a witness to a
crime he had committed.
G. Dunbar's Recantation of His Confession
Dunbar recarted his October 1987 sworn confession in a
letter to the judge three weeks later. Recalled to the stand,
Dunbar claimed he had falsely confessed because he was
angry at Stevens and her children for accusing him, and at the
prosecutors and the state because of the length of the unre-
lated burglary sentence he was then serving and the particu-
lars of his confinement. Dunbar also testified that his attorney
was aware Dunbar’s confession was false, and that the attor-
ney had conspired with Dunbar to present a false story of a
frame-up, in hopes of getting a book or movie deal and split-
ting the proceeds.
CARRIGER Vv. STEWART
Dunbar admitted at the December 1987 hearing that, given
the inconsistency of his Separate swom stories, he had neces-
places.” The trial court found Dunbar’s confession was false
end his 1978 trial testimony was truthful.
Dunbar died in 1991.
Ml. The District Court's Decision and Its Deference to
the State Court's C. redibility Determination
In his current petition, Carriger claims that he is actually
innocent of the crime, and that his conviction and death sen-
tence cannot stand because the state failed to disclose excul-
patory evidence.’ The district court denied relief, ruling that:
(1) Carriger had not shown actual innocence sufficient either
been presented in his first federal habeas petition, and was
therefore barred as an abuse of the writ; (3) Carriger had not
CARRIGER V. STEWART
shown cause or prejudice entitling him to consideration of the
otherwise abusive claim, and (4) the claim of withheld evi-
dence was in any event meritless.
Critical to the district court’s conclusion that Carriger had
not met the “miscarriage of justice” standard outlined in
Schlup was the court’s deference to the Arizona court’s rejec-
tion of Dunbar’s 1987 confession and Joyce Stevens’ 1987
testimony implicating Dunbar. The district court noted that
the Arizona court found both Dunbar’s confession and Ste-
vens’ testimony incredible, and that witness credibility find-
ings are factual determinations entitled to deference by federal
courts if they are fairly supported by the record. See Carriger
v. Stewart, No. CIV-95-1617-PHX-PGR, Memorandum of
Decision and Order at 15-16 (D. Ariz. Nov. 2, 1995) (citing
Marshall v. Lonberger, 459 U.S. 422, 432, 103 S. Ct. 843,
850-51 (1983)).
Dunbar’s swom confession is the most dramatic piece of
evidence exonerating Carriger. Before reaching Carriger’s
Claims, we consider first whether we may rely in any part on
Dunbar’s confession, or whether the district court correctly
deferred to the state court’s rejection of the confession.
We must defer to the state court's Credibility finding unless
the finding is not fairly supported by the record considered as
a whole. See 28 U.S.C. § 2254(d)(8) (1994): Marshall y.
Lonberger, 459 U.S. 422, 432-35, 103 S. Ct. 843, 849-5]
(1983). The Arizona court’s credibility determination, made
in 1988 by a judge who had not been the trial judge, was
based on the court’s conclusions that the physical evidence at
“Because Carriger’s petition was filed prior to the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (the “Act”), we apply § 2254(d)8) as it existed prior
to its amendment by the Act. See Jeffries v. Wood, 114 F.3d 1484, 1495-
96 (9th Cir. 1997) (en banc); accord Lindh v. Murphy, 117 S. Ct. 2059,
2068 (1997) (“[T}he new provisions of chapter 153 generally apply only
to cases filed after the Act became effective.”).
A-25
Carricer v. STEWART
trial was consistent with Dunbar’s trial testimony and incon-
sistent with his confession, and that Dunbar had motivations
to lic in 1987. .
With regard to the evidence at trial, the State Court pointed
specifically to “{Carriger]’s fingerprint on the tape binding the
victim’s hands, the attache case key found in Petitioner’s
Property, the discarded clothes with the inside pockets
removed where Carriger customarily placed his initials, Car-
riger’s prints on the gun case, and the boots wom during the
robbery which a number of witnesses in previous proceedings
testified belonged to Petitioner.” See State v. Carriger, No.
CR 101609, slip op. at 5-6 (Ariz. Sup. Ct. Feb. 22, 1988),
Close examination of this evidence in the context of the
entire course of Proceedings, however, reveals that each piece
of evidence is as consistent with Dunbar’s confession as it is
with his trial testimony. We look at each in tum:
The fingerprint on the fape. Dunbar explained that
he had taken the adhesive tape, used to bind Shaw’s
hands, from Carriger’s van. The tape belonged to
Carriger, and this would explain Carriger’s finger-
print on the tape. Had Carriger left the print while
binding the victim, as the state contends, it is diffi-
Cult to understand how he could have left only one
print. The State points to an offer of proof made at
the 1987 hearing, in which a Criminalist testified that
he had reconstructed the tape and determined that
Carriger’s fingerprint was located some 21 inches
from an end of the tape. This testimony suggests that
the print was left during the binding of Shaw’s
hands.
Cross examination was able to bring out an intemal
inconsistency in the expert's testimony: the expert
stated he could piece together all of the segments of
tape cut from the victim’s wrists by matching the
CARRIGER V. STEWART
irregularity of the edges, but admitted he could not
match either end of the reconstructed tape to the end
of the roll. The state court did not admit the crimi-
nalist’s testimony into evidence, and made no find-
ings as to its relationship. The defense never had an
Opportunity to examine the tape, in either recon-
structed or unreconstructed form, or to have its own
expert test the state’s criminalist’s conclusions.
Although we may consider the offer of proof in our
inquiry, we find no basis to conclude the criminal-
ist’s conclusions are reliable and therefore determine
they should be accorded little weight.‘
2 ictal Sale A Racine keaton at niall
The attache case key. Dunbar testified that he gave
Carriger the attache case to give to Jackie White to
hold; he did not explain what he did with the key. He
may have given Carriger the key as well.
Alternatively, Dunbar and Carriger may both have
had keys to the case. The state court ignored the
uncontradicted evidence that the fingerprints on the
jewelry inside the case were Dunbar’s, not Car-
riger’s.
The discarded clothes. Dunbar testified in his con-
fession that the clothes he led the police to were the
clothes he, Dunbar, had worn during the robbery.
. Nothing establishes that the clothes had been wom
by Carriger, rather than Dunbar. (Postconviction evi-
dence established they fit both men.) Additionally,
“The dissent argues that this offer of proof is “the single most damning
piece of proof,” infra at 14675, and concludes that even after disregarding
Dunbar’s testimony, “reasonable jurors . . . could and would still find
plenty on which to convict Carriger,” infra at 14670. We do not agree with
the assumption that the reconstruction is reliable or that our test under
i Schlup is to decide how a hypothetical jury would regard each bit of new
evidence. Our task is to determine whether confidence in the actual verdict
: is undermined. Schiup, 115 S. Ct. at 861.
A-27
CARRIGER V. STEWART
when he confessed, Dunbar stated he planted Car-
riger’s jeans in the canal before leading police to
them. No blood was found on the jeans, despite evi-
dence at trial that blood would likely have spattered
on the killer’s pants. The canal was nearly dry at the
time.
Carriger's fingerprints on the gun case. It is undis-
puted that Carriger and Dunbar were together when
Dunbar bought the gun. There is no reason Car-
riger’s prints would not have been on the gun case.
The discarded boots. Carriger does not dispute the
boots were his. He testified in 1982 that Dunbar
wore the boots during the crime. Postconviction tes-
timony established that the boots fit Dunbar. In his
confession, Dunbar testified that he discarded the
clothes he wore during the crime, including the
boots, and then, with the police along, re-collected
them and said Carriger had worn them. The boots are
no more consistent with Carriger’s guilt than with
Dunbar’s.
Much of the other physical evidence at trial undercuts Dun-
bar's trial testimony, and Supports Dunbar’s guilt. First, it is
Significant that all of the stolen jewelry was in Dunbar’s pos-
session, not Carriger’s. There was no connection between any
of the stolen jewelry and Carriger, other than Carriger’s hav-
ing handed the attache case to Jackie White, and this Dunbar
together in Carriger’s van removing the tags. If Carriger did
this without leaving fingerprints on the jewelry, while Dunbar
did leave prints, Carriger must have wom gloves while Dun-
bar did not. Yet Dunbar said nothing at trial about Carriger
wearing gloves to remove the tags, despite being questioned
specifically about what Carriger was wearing while they
A-28
CARRIGER V. STEWART
removed the tags, and whether he had ever seen Carriger wear
gloves. Moreover, if Carriger wore gloves, it is implausible
that Dunbar would not have seen them and done the same.
There is other significant evidence supporting the credibil-
ity of Dunbar’s confession that was not considered by either
the state court or the district court. First, when he confessed
to the crime in 1987, Dunbar was able to diagram Shaw’s
jewelry store in detail, including the location of the safe and
the layout of the back room, and was able to depict accurately
the location and position in which Shaw’s body was found in
the bathroom in back of the store. Dunbar could only have
known those details if he had participated in the crime.
His knowledge was never adequately explained by any
other evidence. According to Dunbar’s trial testimony he had
never been in the back of the store. Dunbar’s December 1987
explanation that Carriger’s counsel had shown him diagrams
of the store and transcripts of trial testimony was shown to be
false. Testimony from all others present at counsel’s meetings
with Dunbar established that Dunbar was lying and had been
shown no diagrams or transcripts. (During his 1987 in-court
confession, Dunbar also testified that he had never seen any
diagrams, and that his recollection of the store interior was
independent.) Dunbar’s recollection of details only a partici-
pant in the crime could have known is strong evidence that his
confession was truthful, and his trial testimony false.
Second, Dunbar’s December 1987 recantation of his con-
fession was itself rife with inconsistencies and false state-
ments. In addition to lying about having been shown diagrams
and transcripts, Dunbar claimed that his lawyer had conspired
with him to sell a false frameup story and split the book and
movie proceeds. Testimony from Dunbar’s lawyer, as well as
inconsistencies in Dunbar’s story, established that Dunbar’s
lawyer had had nothing to do with any such plan, and that
selling the story had been Dunbar’s idea. When asked to
Carricer v. STEWART
explain inconsistencies in his story, Dunbar was vague and
Cvasive, twice resorting to claims of recent mental problems.
Finally, when he confessed the Shaw murder in October
1987, Dunbar testified with no immunity of any kind. He
acknowledged on the stand that by confessing, he was open-
don’t really want to be prosecuted for murder. I don’t want to
80 on death row.” Dunbar’s admission that he recanted to
avoid prosecution makes the recantation highly suspect, while
the fact that he confessed without immunity and overwhelm-
ingly against his own penal interest is a strong indicator of
reliability. See Williamson y. United States, 512 U.S. 594,
599, 114 S. Ct. 2431, 2435 (1994) (discussing Fed. R. Evid.
804(b)(3)); accord 5 Wigmore on Evidence, §§ 1457, 1477
(Chadboum rev. 1974).
It is true that Dunbar did not Stand by his confession very
long, and that Dunbar’s anger at Stevens and at the prosecu-
tion gave him some motivation to lie in 1987. There is virty-
ally no other support for the State court’s rejection of
Dunbar’s confession. Much of the physical evidence, Dun-
Suggests that Dunbar’s post-trial confession was more reliable
than either his trial testimony or his December i987 recanta-
tion. Under 28 U.S.C. § 2254(d)(8), because the State court’s
Credibility determination is not fairly supported by the record
as a whole, it is not entitled to a presumption of correctness.
We therefore consider Dunbar’s confession as at least some
evidence Supporting Carriger’s claims.
A-30
OCT OS TAA aks
GERDA RE RN SE AEE REE “aA ale
CARRIGER V. STEWART
IV. Carriger’s Freestanding Claim of Actual Innocence:
Herrera v. Collins
Carriger’s first contention in his petition and on appeal is
that all of the evidence now available establishes that he is
actually innocent of the Shaw robbery and murder. Carriger
argues that the evidence sufficiently establishes his innocence
to render his execution unconstitutional, irrespective of any
constitutional error at his trial or sentencing. This is a
“freestanding” actual innocence claim like that discussed in
Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993),
where a majority of the Supreme Court assumed, without
deciding, that execution of an innocent person would violate
the Constitution. A different majority of the Justices would
have explicitly so held. Compare id. at 417, 113 S. Ct. at 869
(majority opinion) with id. at 419, 113 S. Ct. at 870
(O’Connor, J., joined by Kennedy, J., concurring) and id.
at 430-37, 113 S. Ct. at 876-79 (Blackmun, J., joined by
JJ. Stevens and Souter, dissenting).
In Herrera, the Supreme Court did not specify what show-
ing would be required for a habeas petitioner to make out a
successful freestanding claim of actual innocence. The Court
Stated only that the threshold would be “extraordinarily high,”
and that the showing would have to be “truly persuasive.”
Herrera, 506 U.S. at 417, 113 S. Ct. at 869; accord id. at 426,
113 S. Ct. at 874 (O’Connor, J., concurring). The Court found
it unnecessary to be more specific, because Herrera’s showing
was unconvincing under any standard. See id. at 417-19, 113
S. Ct. at 869-70; accord id. at 424-27, 113 S. Ct. at 873-74
(O’Conxor, J., concurring).
In this appeal, Carriger argues that he is entitled to relief
because “no rational finder of fact could convict beyond a rea-
sonable doubt in light of all the presently available evidence.”
Carriger thus urges us to adopt the standard discussed in Jus-
tice White’s concurring opinion in Herrera. Justice Whitc,
assuming with the majority that a freestanding claim of inno-
Carrier v. STEWART
cence could entitle a habeas petitioner to relief, stated that the
required showing would have to be, at the bare minimum, the
same as that required to invalidate a conviction because of
insufficient evidence under Jackson v. Virginia, 443 U.S. 307,
324, 99 S. Ct. 2781, 2792 (1979), taking into account all the
evidence at trial. See Herrera, 506 U.S. at 429, 113 S. Ct. at
875 (White, J., concurring in the judgment). Justice White,
however, addressed only the minimum required Showing; he
did not find it necessary to decide finally what the threshold
would be. See id. Moreover, Justice White did not Speak for
a majority.
[1] We conclude that the Herrera majority’s statement that
the threshold for a freestanding claim of innocence would
have to be “extraordinarily high,” id. at 417, 113 S. Ct. at 869;
accord id. at 426, 113 S. Ct. at 874 (O’Connor, J., concur-
ring), contemplates a Stronger showing than insufficiency of
the evidence to convict. We therefore decline to adopt the
modified Jackson standard. We believe that the required
Showing would have to be at least as high as the more
demanding standard articulated by Justice Blackmun in his
Herrera dissent. Justice Blackmun Stated that to be entitled to
relief, a habeas petitioner asserting a freestanding innocence
claim must go beyond demonstrating doubt about his guilt,
and must affirmatively prove that he is probably innocent. See
Herrera, 506 U.S. at 442-44, 113 S. Ct. at 882-83 (Blackmun,
J., dissenting).
[2] Requiring affirmative proof of innocence is appropriate,
because when a petitioner makes a freestanding claim of inno-
cence, he is claiming that he is entitled to relief despite a con-
Stitutionally valid conviction. As Justice Blackmun explained,
conviction after a constitutionally adequate trial
Strips the defendant of the presumption of innocence.
The govemment bears the burden of Proving the
defendant’s guilt beyond a reasonable doubt, but
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CARRIGER V. STEWART
once the government has done so, the burden of
proving innocence must shift to the convicted defen-
dant. The actual-innocence inquiry is therefore dis-
tinguishable from review for sufficiency of the
evidence, where the question is not whether the
defendant is innocent but whether the government
has met its constitutional burden of proving the
defendant’s guilt beyond a reasonable doubt. When
a defendant seeks to challenge the determination of
guilt after he has been validly convicted and sen-
tenced, it is fair to place on him the burden of prov-
ing his innocence, not just raising doubt about his
guilt.
Herrera, 506 U.S. at 443, 113 S. Ct. at 882-83 (Blackmun, J.,
dissenting); accord id. at 399-400 & 407 n.6, 113 S. Ct. at
860 & 864 n.6 (majority opinion) (noting that a valid convic-
tion strips petitioner of the presumption of innocence and
attaches a presumption of guilt). In light of the presumption
of guilt that attaches after a constitutionally valid conviction,
“it is fair to place on [a petitioner asserting a Herrera claim]
the burden of proving his innocence, not just raising doubt
about his guilt.” Jd. at 443, 113 S. Ct. at 883 (Blackmun, J.,
dissenting).
[3] Carriger has not met this burden. Although the postcon-
viction evidence he presents casts a vast shadow of doubt over
the reliability of his conviction, nearly all of it serves only to
undercut the evidence presented at trial, not affirmatively to
prove Carriger’s innocence. Carriger has presented no evi-
dence, for example, demonstrating he was elsewhere at the
time of the murder, nor is there any new and reliable physical
evidence, such as DNA, that would preclude any possibility
of Carriger’s guilt. Although Dunbar’s confession exonerating
Carriger does constitute some evidence tending affirmatively
to show Carriger’s innocence, we cannot completely ignore
the contradictions in Dunbar’s stories and his history of lying.
Accordingly, the confession by itself falls short of affirma-
A-33
CAaRRIGER Vv. STEWART
tively proving that Carriger more likely than not is innocent.
Carriger’s freestanding claim of actual innocence must fail.
V. The “Miscarriage of Justice” Gateway:
Schlup v. Delo
[4] Unlike the petitioner in Herrera, Carriger accompanies
his claim of actual innocence with substantial claims of con-
Stitutional violations at trial. The constitutional claims Car-
riger raises could have been raised in his first federal habeas
petition in 1985, and therefore would ordinarily be barred
under the abuse of the writ doctrine. See McCleskey v. Zant,
499 U.S. 467, 490, 111 S. Ct 1454, 1468 (1991). Carriger
may have his otherwise-barred claims considered on the mer-
its, however, if his claim of actual innocence is sufficient to
bring him within the “narrow class of cases... . implicating
a fundamental miscarriage of justice.” Schlup v. Delo, 115
S. Ct. 851, 861 (1995) (quoting McCleskey, 499 U.S. at 494,
111 S. Ct. at 1470).
[5] The terminology in this area is sometimes confusing,
because the “miscarriage of justice” exception, like the free-
Standing claim in Herrera, has been described as a showing
of “actual innocence.” See Murray v. Carrier, 477 US. 478,
496, 106 S. Ct. 2639, 2649 (1986) (requiring petitioner to
show that “a constitutional violation has probably resulted in
an independent avenue to relief. Rather, if established, it func-
tions as a “gateway,” permitting a habeas petitioner to have
considered on the merits claims of constitutional error that
would otherwise be Procedurally barred. See Schlup, 115
S. Ct. at 861: Herrera, 506 U.S. at 404, 113 S. Ct. at 862.
[6] In Schlup, the Supreme Court explained that the thresh-
old for making out the “miscarriage of justice” exception is
lower than the “extraordinarily high” threshold for freestand-
ing (Herrera) claims of innocence, for two reasons. First, the
A~-34
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CARRIGER V. STEWART
“miscarriage of justice” exception does not itself provide an
independent basis for relief. The basis for relief is the claimed
underlying constitutional violations. More important, because
a petitioner claiming he falls within the miscarriage of justice
exception asserts constitutional error at trial, his conviction is
not entitled to the same degree of respect as one concededly
free of constitutional taint. See Schiup, 115 S. Ct. at 861.
Accordingly, a petitioner asserting both innocence and consti-
tutional error “need carry less of a burden” with respect to
innocence than a petitioner like Herrera who claimed only
innocence. See id. While a petitioner making a Herrera claim
must present evidence of innocence so strong that his execu-
tion would be “ ‘constitutionally intolerable’ even if his con-
viction was the product of a fair trial,” a petitioner making a
miscarriage of justice claim need only present evidence of
innocence strong enough “that a court cannot have confidence
in the outcome of the trial un/ess the court is also satisfied that
the trial was free of nonharmless constitutional error.” /d.
(second emphasis added). In the latter case, “the petitioner
should be allowed to pass through the gateway and argue the
merits of his underlying claims.” /d.
[7] The Court in Schiup went on to precisely articulate the
showing a petitioner must make to pass through the gateway.
The Court held that to permit consideration of his procedur-
ally barred claims, a petitioner must show that in light of all
the evidence, including new evidence, “it is more likely than
not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Schlup, 115 S. Ct. at 867.
The Court emphasized that in considering all the available
evidence, the court is not bound by the rules of admissibility,
but must consider “all the evidence, including that alleged to
have been illegally admitted (but with due regard to any unre-
liability of it) and evidence tenably claimed to have been
wrongly excluded or to have become available only after the
trial.” Jd. (quoting Friendly, Is Innocence Irrelevant? Collat-
eral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
160 (1970)).
Carricer v. STEWART
The dissent incorrectly assumes that in order to prevail on
a Schiup claim, Carriger must prove that he is actually inno-
cent. As the Court wrote in Schlup, “[Schlup’s} constitutional
claims are based not on his innocence, but rather on his con-
tention that... the withholding of evidence [citation omitted],
denied him the full panoply of protections afforded to crimi-
nal defendanis by the Constitution.” Schlup v. Delo, 115
S. Ct. 851, 860 (1995), Therefore, the petitioner is required to
present “evidence of innocence” such that “a court cannot
have confidence in the outcome of the trial.” /d. at 861. In
other words, the claim is procedural, not substantive as the
dissent suggests. See id. at 860 (“Schlup’s claim of innocence
. +. iS procedural, rather than substantive.”). The Schlup Court
contrasted this showing with that required under a Herrera
claim in which the court must find that the “new facts unques-
tionably establish Schlup’s innocence.” /d. at 862.
[8] Although Carriger has not affirmatively proved his
actual innocence sufficiently to satisfy Herrera, we believe he
has more than shown sufficient doubt about the validity of his
conviction to Satisfy Schlup and permit consideration of his
constitutional claims. It is more likely than not that no reason-
able juror hearing all of the now-available evidence would
vote to convict Carriger beyond a reasonable doubt. See Sch-
lup, 115 S. Ct. at 867-68.
[9] Considering Dunbar’s confession along with the other
evidence, which points as directly to Dunbar as to Carriger,
we conclude that Carriger has met the Schlup standard. It is
unlikely that any reasonable juror, knowing that Dunbar,
without immunity, confessed under oath to committing the
murder, would nonetheless conclude beyond a reasonable
doubt that the murder was committed by Carriger. We are
€ven more certain that no reasonable juror would vote to con-
vict Carriger beyond a reasonable doubt, if such a juror knew:
A~-36
one
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i ek eter Oe ee ee
es
CARRIGER V. STEWART
that Dunbar, in his sworn confession, accurately
described details about the crime and the crime
scene that only a participant coud have known;
that Dunbar’s confession explained why Car-
riger’s fingerprint was on the tape, although Car-
riger was not there;
that Dunbar had boasted in front of friends and
family members that he set Carriger up;
that Dunbar had described to a close friend how
he liked to dispose of evidence by cutting it up
and discarding it bits at a time while driving
around the desert, as was done in this case;
that Dunbar had described to the same friend his
technique for consistently maintaining a lie when
blaming a crime on someone else;
that Dunbar had told Stevens’ oldest son how
gruesome it was to see someone’s head crushed
with a skillet; and
that Dunbar had a long history, known to state
authorities, of violence, lying to police, and try-
ing to pin his crimes on others.
Because Carriger has satisfied the Schlup gateway standard,
we may consider the merits of his otherwise-abusive claims
of constitutional error at trial. We therefore turn to the dispo-
sitive Constitutional claim.
Carriger’s Claim of Constitutional Error at Trial:
Brady v. Maryland; Giglio v. United States
{10} Carriger’s strongest claim of constitutional error at
trial is that the state withheld Dunbar’s Department of Correc-
A-37
CaRRIGER v. STEWART
tions file, which would have revealed Dunbar’s long history
of lying to police and blaming his crimes on others. Carriger
argues the state was obligated, under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194 (1963), and Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763 (1972), to disclose to the defense
this critical information bearing on Dunbar’s Credibility.
[11] The prosecution is obligated by the requirements of
due process to disclose material exculpatory evidence on its
Own motion, without request. See Kyles v. Whitley, 115 S. Ct.
1555, 1565 (1995); United States y. Bagley, 473 U.S. 667,
682, 105 S. Ct. 3375, 3383 (1985). Evidence is material, and
must be disclosed, “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Kyles, 115 S. Ct.
at 1565; Bagley, 473 U.S. at 682, 105 S. Ct. at 3383. A
“reasonable probability” does not require showing by a pre-
ponderance that the outcome would have been different. See
Kyles, 115 S. Ct. at 1565-66. Rather, a “ ‘reasonable probabil-
ity’ is a probability sufficient to undermine confidence in the
outcome.” Bagley, 473 U.S. at 682, 105 S. Ct. at 3383.
U.S. at 154-55, 92 S. Ct. at 766. The need for disclosure is
particularly acute where the government presents witnesses
who have been granted immunity from prosecution in
exchange for their testimony. We have previously recognized
that criminals who are rewarded by the government for their
testimony are inherently untrustworthy, and their use triggers
an obligation to disclose material information to protect the
defendant from being the victim of a Perfidious bargain
between the state and its witness. We said that informants
granted immunity are
[bly definition . . . cut from untrustworthy cloth{,]
and must be nanaged and carefully watched by the
A-38
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CARRIGER V. STEWART
government and the courts to prevent them from
falsely accusing the innocent, from manufacturing
evidence against those under suspicion of crime, and
from lying under oath in the courtroom. . . . Because
the government decides whether and when to use
such witnesses, and what, if anything, to give them
for their service, the government stands uniquely
positioned to guard against perfidy. . .. Accordingly,
we expect prosecutors and investigators to take all
reasonable measures to safeguard the system against
treachery. This responsibility includes the duty as
required by Giglio to tum over to the defense in dis-
covery ail material information casting a shadow on
a government witness’s credibility.
United States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir.
1993).
The record is not conclusive as to whether the individual
prosecutors in this case ever actually possessed Dunbar’s cor-
rections file. The prosecutor’s actual awareness (or lack
thereof) of exculpatory evidence in the government's hands,
however, is not determinative of the prosecution's disclosure
obligations. See Kyles, 115 S. Ct. at 1567-68.: Rather, the
prosecution has a duty to learn of any exculpatory evidence
known to others acting on the government’s behalf. See id.,
at 1567. Because the prosecution is in a unique position to
obtain information known to other agents of the government,
it may not be excused from disclosing what it does not know
but could have learned. See id. at 1568. The disclosure obliga-
tion exists, after all, not to police the good faith of prosecu-
tors, but to ensure the accuracy and faimess of trials by
requiring the adversarial testing of all available evidence bear-
ing on guilt or innocence. See id., at 1568-69; Brady, 373 U.S.
at 87, 83 S. Ct. at 1196-97.
[13] In this case, Dunbar was the prosecution’s star wit-
ness, and was known by police and prosecutors to be a carcer
CarRiGER v. STEWART
burglar and six-time felon, with a criminal record going back
to adolescence. When the state decides to rely on the testi-
mony of such a witness, it is the state’s obligation to tum over
all information bearing on that witness’s credibility. See
Giglio, 405 U.S. at 154, 92 S. Ct. at 765; Bernal-Obeso, 989
F.2d at 333-34. This must include the witness’s criminal
record, including prison records, and any information therein
which bears on credibility. The state had an obligation, before
putting Dunbar on the stand, to obtain and review Dunbar’s
corrections file, and to treat its contents in accordance with
the requirements of Brady and Giglio.
[14] To the extent defense counsel ’s failure to request the
file was a cause of the state’s failure to disclose it, that failure
constituted clear ineffective assistance of counsel. Either way,
Carriger was denied a fair trial. We do not independently con-
Sider the ineffective assistance of counsel issue because the
Supreme Court has clarified that the State’s Brady obligations
do not depend upon the defense’s discovery requests. See
Kyles, 115 S. Ct. at 1565: Bagley, 473 U.S. at 682, 105 S. Ct.
at 3383.
The question thus becomes whether the file’s contents are
“material,” i.e., whether there is a reasonable probability that
disclosure of the file would have led to a different result at
trial. See Kyles, 115 S. Ct. at 1565. In deciding whether the
withheld evidence satisfies this Standard, we evaluate its
effect cumulatively, not item-by-item. See id. at 1567.
[15] The contents of the Dunbar file must be deemed to be
material. Dunbar’s credibility was critical. As Justice Feld-
man of the Arizona Supreme Court explained in 1984,
Dunbar was the state’s Only direct witness. . . . There
was no direct evidence of Carriger’s guilt. The case
was tried, therefore, on a simple basic issue: Did
Dunbar tell the truth when he blamed the robbery
and murder on Carriger, or was Carriger’s contention
A-40
CARRIGER V. STEWART
that the robbery and murder were committed by
Dunbar to be believed? All other issues were periph-
eral.
Carriger Ill, 692 P.2d at 1012 (Feldman, J., dissenting).
At trial the prosecution, while acknowledging Dunbar to be
a Career burglar and convicted felon, nonetheless painted him
as a nonviolent and truthful man. Dunbar testified, unrebutted,
that he was not capable of murder, that he was not a robber,
and that he had never used force, violence, or a gun in any
burglary. Most important, the prosecutor argued at length in
closing that Dunbar was not a liar (“He is a burglar, he is a
crook. . . . He is a lot of things but he is not a liar.”). Further
vouching for Dunbar’s credibility, the prosecutor assured the
jury that “[iJ}f there was any indication of his [Dunbar’s] guilt
or complicity in this, he would be on trial with him
[Carriger].”
While the above picture was painted at trial, the undis-
closed information in the state’s files showed:
— that Dunbar had been committed to the Arizona
State hospital because of violent rages and threats
against his family;
— that Dunbar had brandished a knife at his parents
and threatened to kill them;
— that Dunbar was dishonorably discharged from
the Army for uncontrolled aggressive and physi-
cally assaultive behavior;
— that Dunbar had in the past falsely accused police
officers of keeping money they recovered from
him after arresting him for burglary;
A-41
CARRIGER V. STEWART
- that Dunbar had falsely denied a burglary and
falsely accused the police of lifting his finger-
prints from a water glass and lying about it:
~ that Dunbar admitted he had been involved in a
Shootout with a Phoenix policeman;
- that Dunbar had stated he had committed armed
robberies of savings and loans in Phoenix and
California;
~ that Dunbar had also denied ever being involved
in bank robberies;
~ that Dunbar had been found by authorities to be
manipulative toward other People, and that he
reacted violently when he didn’t get what he
wanted;
~ that a psychiatrist had diagnosed Dunbar as hav-
ing a “sociopathic personality”:
- that Dunbar had aided two armed robberies of
convenience stores, and admitted conspiracy in
those robberies;
~ that Dunbar had used a gun in at least one bur-
glary; and
- that after committing a 1976 commercial bur-
glary, Dunbar had immediately approached
Police on his own initiative and attempted to
blame the burglary on another.
The defense never received, and the jury never heard, any
of this information. In addition, the jury did not know that the
State’s files showed Dunbar committed ninety-two admitted
burglaries in the six months following his release from his
A-42
Pe ee ee NEE Tg
CARRIGER V. STEWART
ice ei AEN
‘ie weenie &
8 nat SelB tyes =
first burglary sentence. Had this evidence of Dunbar’s prolifi-
cacy in his profession been known, the defense could have
used it to question the thoroughness or good faith of an inves-
tigation that did not include Dunbar as a suspect. See Kyles,
115 S. Ct. at 1571-72.
The evidence revealed in Dunbar’s file need not have been
independently admissible to have been material. Evidence is
material if it might have been used to impeach a government
witness, because “if disclosed and used effectively, it may
make the difference between conviction and acquittal.”
Bagley, 473 U.S. at 676, 105 S. Ct. at 3380; accord Giglio,
405 U.S. at 154, 92 S. Ct. at 766; Napue v. Illinois, 360 U.S.
264, 269, 79 S. Ct. 1173, 1177 (1959) (“The jury’s estimate
of the truthfulness and reliability of a given witness may well
be determinative of guilt or innocence .. . .”); see also Kyles,
115 S. Ct. at 1571-74 (discussing impeaching uses of undis-
closed evidence). As we have observed, “|t]he established
safeguards of the Anglo-American legal system leave the
veracity of a witness to be tested by cross-examination.”
Bernal-Obeso, 989 F.2d at 335. It is for precisely that reason
that we require “that relevant evidence bearing on the credi-
bility of an informant-witness be timely revealed” to the
defense. /d.
[16] The district court erred when it concluded that Car-
riger had not been prejudiced by the withholding of the infor-
mation because the jury already knew Dunbar was a burglar
testifying with immunity. The telling evidence that remained
undisclosed included the length of Dunbar’s record of burgla-
ries, and, more important, his long history of lying to the
police and blaming others to cover up his own guilt.
[17] The district court also noted that the jury had already
heard “a wealth of negative information about Dunbar’s
veracity.” However, the only evidence before the jury that
Dunbar had lied was his admission that he had falsified the
gun registration form. There was no evidence concerning his
Carricer v. STEWART
long history of falsely blaming others for his misdeeds. Fur-
thermore, although the jury heard Dunbar admit he had once
Slapped his stepdaughter, they heard no evidence of Dunbar’s
lifelong history of violence. The latter evidence, had it been
disclosed, would have been relevant to Carriger’s defense that
Dunbar did it, and to the related issues of the quality of the
investigation, and the decision not to charge Dunbar.
We have held that the government Cannot satisfy its Brady
obligation to disclose exculpatory evidence by making some
evidence available and Claiming the rest would be cumulative.
See Bernal-Obeso, 989 F.2d at 335. Rather, the government
is obligated to disclose “a// material information casting a
Shadow on a government witness’s credibility.” Jd. at 334
(emphasis in original).
[18] In this particular case the state’s claim that the undis-
closed information made no difference is severely undercut by
the prosecutor’s strenuous vouching for Dunbar’s truthfulness
in closing argument. The prosecutor acknowledged that the
whole case came down to whether Dunbar was telling the
truth, or whether, as Carriger contended, Dunbar did it and
framed Carriger. R.T. 7/25/78 at 464. Knowing Dunbar’s
credibility was the key to the case, the prosecutor emphasized
to the jury that even though Dunbar was a career burglar, he
was a truthful man:
[H]e is a smart cookie, he is a burglar, he is a
crook. He is not a liar. Remember when the proba-
tion officer was on the stand. Did you ever catch him
in a lie—never. Ever catch him in a lie—no. ...
What I am trying to put across, I don’t want you [the
jury] to get in the position of falling to that kind of
logic, letting a murderer go because he is taking pot
shots at our star witness. That is the important thing
to remember. If there was any indication of his
[Dunbar’s] guilt or complicity in this, he would be
on trial with him.
A-44
CARRIGER Vv. STEWART
ahi (A Nadek Peat tab At ow nab hy ale ei ah ia ”
eee Te ee ee eee eae
Remember, I asked him on the stand, what did |
tell you is going to happen to you if you tell a lie,
what did I tell you is going to happen to you, what
is the penalty for lying in a perjury case? He knew
right away, ladies and gentlemen, he did not lie to
you. He is a lot of things but he is not a liar.
Id. at 463-64. Entirely apart from being itself improper con-
duct, see United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct.
1038, 1048 (1985); Berger v. United States, 295 U.S. 78, 88-
89, 55 S. Ct. 629, 633 (1935), the prosecutor’s vouching
underscores the centrality of Dunbar’s credibility.
[19] We conclude that there is more than a reasonable prob-
ability that the outcome of Carriger’s trial would have been
different had Dunbar’s records been disclosed. The result was
a verdict not worthy of confidence and a trial that denied Car-
riger due process of law. Carriger is entitled to a new trial.
The panel opinion, 95 F.3d 755, is VACATED.
The district court’s judgment is REVERSED AND
REMANDED WITH INSTRUCTIONS TO GRANT THE
WRIT OF HABEAS CORPUS.
Part 2 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
;
Paris Hoyt CARRIGER,
Petitioner-Appellant, No. 95-99025
. D.C. No.
Terry L. Stewart, Director of the CV-95-01617-PGR
Arizona Department of
Corrections. OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
March 27, 1997—San Francisco, California
Filed: December 17, 1997
Before: Procter Hug, Jr., Chief Judge, James R. Browning,
Mary M. Schroeder, Jerome Farris, Harry Pregerson,
Stephen Reinhardt, Alex Kozinski, Ferdinand F. Fernandez,
Thomas G. Nelson, Andrew J. Kleinfeld, and
Sidney R. Thomas, Circuit Judges.
Volume |
Opinion by Judge Schroeder,
Volume 2
Dissent by Judge Kozinski
CARRIGER Vv. STEWART
KOZINSKI, Circuit Judge, with whom Judges Farris, Fer-
nandez, T.G. Nelson and Kleinfeld join, dissenting.
"tty COlleagues in the majority are able to say with confidence
that one of Dunbar’s many stories accurately describes what
through which Carriger must pass before we can consider his
abusive Brady claim.
Sent.
Schlup is a narrow exception to the rule that we will not
consider abusive habeas Claims; its limited Purpose is to pro-
fect against “the execution of a person who is entirely
innocent.” 513 U.S. at 324-25 (emphasis added). As a matter
CARRIGER V. STEWART
of necessity and design, we normally rely on a State’s trial,
appellate and collatcral review processes to determine the
truth in criminal prosecutions. Federal habeas provides
another layer of protection, albcit limited. In capital cases,
Schlup provides a further layer, more limited still. Only where
a petitioner makes a compelling case based on reliable, credi-
bie, concrete proof that he is actua'ly innocent may a federal
court cast aside orderly procedure and consider an otherwise
defaulted habeas claim.
Schlup started by recognizing that the vast majority of
innocence claims arc not credibic: “|C}hallenges to the propri-
ety of imposing a sentence of death are routincly asserted in
capital cases... .” /d. at 324. Because unreliable evidence of
innocence is casy to come by. the district court shoukd quickly
dismiss claims based on such evidence. Id. Truly credible
claims are far less common: “[E]xperience has taught us that
a substantial claim that constitutional crror has caused the
conviction of an innocent person is extremely rare.” /d. Only
when a petitioner comes up with reliabic, concretc, verifiable
proof of actual innocence do we subordinate principics of
finality and comity by considering a procedurally defaulted
claim. /d. ay
Writing for the Court in Schiup, Justice Stevens explained
that “|t]o be credible. ja claim of actual innocence] requires
petitioner to support his allegations of constitutional crror
with new reliable cvidence . . . that was not presented at trial.”
Id. at 324. Requiring that new evidence be reliable draws a
workable line between the many cascs involving frivolous
claims of innocence and the few that raisc potentially mcrito-
rious claims. See Weeks v. Bowersox, 119 F.3d 1342, 1351
(8th Cir. 1997) (en banc); Bowman v. Gammon, 85 F.3d 1339,
1346 (8th Cir. 1996). Schlup offered three cxamplcs of cvi-
dence that would pass the threshold of reliability: exculpatory
scientific evidence. trustworthy cyewitncss accounts and criti-
cal physical evidence. Schlup, 513 U.S. at 324. By cnumerat-
ing the kinds of proof that could form the basis of a
Carricer v. STEWART
substantial claim of innocence, the Supreme Court was telling
us that less reliable kinds of evidence cannot Support an actual
innocence claim. The Court clearly did not hold that Schlup
may be invoked whenever a witness changes his story.
Carriger’s new evidence is not exculpatory scientific evi-
dence, and it is not critical Physical evidence. Is it a
“uustworthy cyewitness account”? Certainly not. Recanting
testimony has long becn disfavored as the basis for a claim of
innocence. Appellate courts, even on direct review, look upon
recantations with extreme suspicion. See United States v.
Pointer, 17 F.3d 1070, 1074 (7th Cir. 1994); Olson v. United
States, 989 F.2d 229, 231 (7th Cir. 1993); United States v.
Nixon, 881 F.2d 1305, 1311 (Sth Cir. 1989); United States v.
Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988); United States
Vv. DiPaolo, 835 F.2d 46, 49 (2d Cir. 1987); United States v.
Adi, 159 F.2d 404, 408 (Sth Cir. 1985).," Recanting testimony
is easy to find but difficult to confirm or refute: witnesses for-
ect, witnesses disappear, witnesses with personal motives
change their stories many times, before and after trial. A
repudiated recantation like Dunbar’s is even less worthy of
serious consideration. One respected commentator advises
that a motion for a new trial based on a repudiated recantation
usually isn’t worth the time it takes to prepare: “Although [a
repudiation] docs suggest that the witness is ‘completely irre-
sponsible,” the motion appears to have little or no chance of
success. With the repudiation of the recantation, it becomes
merely impeaching and could be used at a new trial only for
the purpose of CrOss-€xamining the witness, and not as sub-
"Arizona courts share this suspicion:
There is no form of proof so unreliable as recanting testimony.
in the popular mind it is often regarded us of great imponunce.
Those experienced in the administration of the criminal law know
well its untrustworthy character.
State v. Krum, 903 P.2d 596, 602 (Ariz. 1995) (en bunc), quoting State v.
Sims, 409 P.2d 17, 22 (Ariz. 1965).
B-4
Carricer V. STEWART
stantive evidence.” Moore's Fedcral Practice § 633.05[2] (3d
ed. 1997).
The majority trics to add force to Dunbar’s recantation with
the high drama of a death bed confession, the mca culpa of
a guilt-ridden man clearing his conscience before going to
meet his Maker.” See maj. op. at 14624. Quite moving. were
it but truc. Dunbar long outlived his confession: He recanted
the confession shortly after he made it. but didn’t dic until
four years later. Dunbar’s recantation was nothing but a spite-
ful counterpunch to his estranged wife's accusation. In post-
conviction procecdings nine ycars after the murder, the
defense had called Joyce Stevens. Dunbar’s cx-wifc, who had
provided Dunbar’s “nap” alibi at trial. Joyce’s new story was
that Dunbar had confessed he was at the jewelry store with
Carriger, and that Dunbar had actually struck the fatal blows
with the skillet.” When Dunbar took the stand a few weeks
later, he parried Joyce's story by testifying that she robbed the
place with him and struck the first blows with the frying pan.
Tit for tat.
The majority makes much of the fact that Dunbar confessed
in “open court.” See maj. op. at 14620 (“Dunbar actually con-
fessed in open court”): id. at 14620 (“Dunbar confessed under
oath in open court”). But Dunbar also testified at trial in open
court, and then repudiated his confession in open court six
weeks after he had made it. We thus know for sure that Dun-
bar lied in court at least once. probably many morc times. See
*The law indeed accords dying declarations special treatment, ai least
where the statement concems the cause of the declarant's impending
death, based on the premise that one is not likely to lic so soon before
Judgment. See Fed. R. Evid. 804(b)(2).
*Some of the details of Joyce's story are subject to doult — among
other things. she testified that Dunbar took a large frying pan along to rob
the jewelry store. (Shaw's wife explained at trial that a small frying pan,
identified as the murdcr weapon, was kept on a hot platc in the store.)
Joyce was obviously embellishing to make Dunbar look guilty. thereby
providing special motivation for Dunbar to do the same to her.
B-5
CAaRRIGER Vv. STEWART
id. at 14655. The majority makes Dunbar out to be a congeni-
tal liar, see id. at 14653-57, then treats onc of his statements
as the Gospel Truth.
As in many cases, recanting testimony is all too common
here: Joyce recanted her trial testimony, her children recanted
theirs, Dunbar recanted his, and then he recanted his recanta-
tion. It’s not casy to pluck the truth from this thistle of lies.
The majority credits both Joyce’s and Dunbar’s recantations,
but the two stories contradict each other on the key fact of
whether Carriger was there. Far from corroborating Dunbar’s
confession, Joyce’s testimony yanks the rug out from under
the one fact that matters. To unlock the Schlup gateway for
Carriger, we must find that Dunbar’s recanted contcssion—
not his testimony at trial, not his retraction, not Joyce's testi-
mony at trial or her retraction—accuratcly describes what
happened. A confession shrouded by so much doubt from a
witness who is now dead is not reliable cnough to satisfy
Schlup. \f what we have here is enough, the Schlup gateway
becomes a freeway off death row. The doctrine of abuse of
the writ, see McCleskey v. Zant, 499 U.S. 467, 493 (1991),
will be severcly undermined.
The Schlup tramework protects only those who arc
“entirely” innocent, not those who are guilty of homicide but
incligible for the death penalty. Under Schi/up, “the petitioner
must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new
evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). This
compact phrasc formulates a daunting standard: We must
imagine twelve reasonable jurors hearing the original case
against the petitioner, as augmented by the new evidence. For
a petitioner to pass through the Schlup gateway, he must per-
B-6
Carricer v. STEWART
suade us that every imaginary juror, twelve out of twelve,
would vote to acquit him of any involvement in the killing.‘
In a short paragraph buricd in the bowels of its opinion, the
majority dismisses the notion that “Carriger must prove that
he is actually innocent.” Maj. op. at 14648. According to the
majority, under Sch/up “the petitioner is required to present
“This standard. derived from Murray v. Carrier, 477 U.S. 478. 496
(1986). is somewhat less strict than the standards discussed in Herrera v.
Collins, 506 U.S. 390. 417 (1993) and Sawver v. Whitley, 505 U.S. 333,
336 (1992). Before the three-judge panel Carriger’s lawyer abjured Schlup
and pressed only a Herrera claim:
Q let me ask you about the actual innocence claim. Are you
making both a Herrera and a Schlup claim?
A No. We are making a Herrera claim. We filed a memoran-
dum accompanying the petition for habeas corpus and it
spells out: This is a Herrera claim.
Q_ ... With respect to the specific question you were just asked
by Judge Kozinski. on pages 15 and 16 of your brief you spe-
cifically mention Schlup v. Delo and | guess I'm not quite
sure how that plays into the Herrera argument you were just
making.
A... That's there [because] that's what the District Coun
thought we were doing. §t didn’t look at the Herrera claim.
it went and said. this isn't a claim, standing on its own, of
actual innocence: this is a claim that was brought as a gate-
way under Schlup to resolve the issues of competence and
Brady.
Oral Argument (iclephone) 11/29/95 10:00 a.m. Relying on this represen-
tation, the panel focused its actual innocence analysis on Herrera rather
than Schlup. See 95 13d 755, 757-61 (Mh Cir. 1996). Carriger’s lawyer
resuscitated the Schlup claim at oral argument before the en banc court:
Q You're talking about actual innocence. Are you talking about
that in terms of both Herrera and Schlup, having Schlup act
as a gateway”
A That's exactly right.
Oral Argument 3/27/97 10:00 a.m.
Carricer v. STEWART
‘evidence of innocence’ such that “a court cannot have confi-
dence in the outcome of the trial.’ ” /d. The majority cuts the
heart out of Schlup by omitting its key requirement, namcly
that “a petitioner show that he is “actually innocent.’ ” Schlup,
513 U.S. at 327. The showing of innocence under Schlup/
Carrier is somewhat lower than that under Herrera/Sawyer,*
but the need for a petitioncr to prove his innocence is echoed
repeatcdly in Schlup: “Carrier requircs a petitioncr to show
that he is “actually innocent.’ ” Schlup, 513 U.S. at 327; id. at
326-27 (“|W ec hold that the Carrier “probably resulted” stan-
dard . . . must govern the miscarriage of justice inquiry when
a petitioncr who has been sentenced to death raises a claim of
actual innocence to avoid a procedural bar to the considcr-
ation of the merits of his constitutional claims.”); id. at 327
(“The Carrier standard requires the habeas petitioner to show
that ‘a constitutional violation has probably resulted in the
conviction of one who is actually innocent.”); id. at 327 (“The
Carrier standard is intended io focus the inquiry on actual
innocence.”); id. at 329 (“[T)he Currier standard requires a
petitioncr to show that it is more likely than not that ‘no rca-
sonable juror’ would have convicted him.”).°
‘Under Herrera, the petitioner must make a “wuly persuasive demon-
stration of ‘actual innocence.’ ~ while under Schiup ut is sufficient to show
that he is probably innocent. Compare Herrera. 506 U.S. at 417. with Sch-
lup, S13 US. at 327.
*The source of the majonty’s confusion may lie in the manner in which
the Schlup Coun distinguished Herrera. Writing tor the Coun, Justice Ste-
vens explained that when wu petitioner makes a credible showing of
innocence—such thal a court cannot have confidence in the “result” or
“outcome” of the wial—the gateway must open and the cause must be con-
sidered on the ments. Schlup, 513 U.S. at 316-17. The majority confuses
confidence in the faimess of the proceedings with confidence in the result
or outcome. Confidence in the outcome of a tnal is undermined only if we
ure persuaded that the petitioner is innoceni—even if the original jury ver-
dict was tainted by constitutional error. This sounds remarkable at first
blush, but it really isn’t. To avoid swallowing up the doctrine of abuse of
the wnt, the miscarriage of justice inquiry set forth in Schlup emphasizes
actual innocence—ihe outcome of the wial—tather than the fairness of the
tinal. Only if we are persuaded that the petitioner is actually innocent can
we proceed through the gateway and then consider whether the petitioner
received w fair wal.
— ———
CarricerR v. STEWART
The majority’s disregard of Schlup shows up in another
Stealth reference. this time in the bottom half of a footnote:
“We do not agree with the assumption that . . . our test under
Schlup is to decide how a hypothetical jury would regard cach
bit of new evidence. Our task is to determine whether confi-
dence in the actual verdict is undermined.” Maj. op. at 14639
n.4. Arc we all reading the same Supreme Court opinion? In
my version. the Court holds that “a petitioner does not mect
the threshold requirement unless he persuades the district
court that, in light of the new evidence, no juror, acting rea-
sonably. would have voted to find him guilty beyond a rea-
sonable doubt.” Schiup, 513 U.S. at 329 (emphasis added).’
The Supreme Court expects us to consider the state of the Cvi-
dence now—adding both the exculpatory and the inculpatory
proof that has come to light since the verdict—and determine
whether a properly instructed jury would find the defendant
innocent. Predicting what reasonable jurors would do is not
casy.® It’s much harder than combing the record and picking
at the state’s casc. But it’s what Schlup demands.
"The majority seems to adopt the Strickland prejudice standard rather
than Schlup/Carrier for Ninth Circuit actual innocence claims. Compare
Maj. OP. at 14639 n.4 (“Our task is to determine whether confi idence in the
actual verdict is undermined.”) with Strickland v. Washington, 466 U.S.
668. 695 (1984) (holding that prejudice requires “a reasonable prohahility
that, absent the errors. the factfinder would have had a reasonable dou
respecting guilt.”) Undermining confidence in the verdict—in the sense
that new evidence or flaws in the trial might have led onc of the jurors to
vote differently—isn "| enough to open the gateway. The Schiup standard
is higher. and requires the petitioner to prove that he is actually innocent.
See Schlup, 513 U.S. at 327 (The petitioner thus is required to make a
stronger showing than that needed to establish prejudice.”): id. at 332-33
(O'Connor, J., concurring) (fitth vote) (“This standard is higher than that
required for prejudice." ).
“Indeed. this was « source of friction hetween the majority and dissent
in Schlup. Justice Stevens defended the standard as manageable: “Finders
of fact are often called upon to make predictions about the likely actions
of hypothetical reasonable’ actors. ‘Thus. the application of ‘more likely
than now” to the habeas court's assessment of the actions of reasonahic
jurors is neither illogical nor unusual.” Schlup, 513 U.S. at 329 n.48.
Carricer V. STEWART
Carriger has failed to prove that, “in light of the new evi-
dence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonabie doubt.” Schiup, 513 U.S. at
329. Even if Dunbar’s repudiated confession were the type of
evidence that could trigger a Schlup inquiry, we would then
have to determine whcther Carrigcr is entirely innocent of
Shaw’s killing. Proof that others are also guilty, or that Car-
riger’s role was less central than the original jury may have
believed, is not enough. To pass through the Schlup gateway,
Carriger must do more than raise doubt in the mind of some
imaginary juror. He must identify new evidence which so
undermines the statc’s case that each and every reasonable
juror would vote to acquit.
Measured against this standard, there is precious little here
that helps Carriger. Let’s start with Dunbar’s confession,
which the majority scems so taken with. Because Shaw was
killed in the course of a robbery, Carriger would be guilty of
felony murder even if he did not kill Shaw himself. See State
v. Vargas, 618 P.2d 229, 230 (Ariz. 1980) (en banc). The
most likely way for Carriger to prove his innocence would be
to show that he had no involvement in the crime whatsoever
—that he was somewhere clse, minding his own business.
Dunbar’s confession helps Carriger only if we think that all
twelve imaginary jurors would swallow the preposterous tale
that Dunbar and Joyce robbed and killed Robert Shaw
together. Yct the record lacks even a sliver of support for this
fantasy: There is no physical evidence of her involvement and
she has an alibi. Absolutely no one—Carriger himsclf
included—takes this part of Dunbar’s confession seriously.”
*Dunbar implicated his wife throughout the “confession.” Dunbar
claimed that alter they arrived at the store, Shaw was sull there, so Dunbar
bound him up, went over to the cabinets and staned taking out pieces of
jewelry. Dunbar then presented a vivid picture of the murder:
B-10
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Carricer v. STEWART
Joyce's participation is not a side show—a trivial detail that
can be shruggcd off. So far as Carriger is concemed. this is
the meat of the coconut. Let's say Dunbar was therc. that he
Participated in the robbery. that he wielded the Icthal frying
pan. See maj. op. at 14641. None of this proves Carriger
wasn't there. The only part of Dunbar’s confession that cxon-
erates Carriger is where he claims it was Joyce (not Carriger)
who was his accomplice. And for that part we have only Dun-
bar’s unadomed words—the fabrication of a proven liar.
But it’s even worse than that for Carriger. Under Schlup we
cannot look just at Dunbar’s confession: we must consider a//
post-trial evidence. including Joyce's testimony and that of
her children." According to Joyce. Dunbar and Carriger were
in cahoots when they committed the robbery and murder.
Joyce had reason to falsely accuse Dunbar. but no motive
whatever to falscly accuse Carriger. Larry White. Joyce’s
cldest son, reported that when Dunbar Ict “bits and piccces” of
| started taking things from the cabinets and | heard 2 muffled
kind of thud or gong und I also heard some kind of screams or
moans. And | ran back to the back and I saw lots of blood around
Mr. Shaw and his head. and Joyce was standing there saying over
and over. “I can't get caught. | can’t gct caught. | got kids.”
R.T. 10-30-87 at 13. Dunbar then admitted that he. too. hit Shaw with the
frying pan and strangled him. but only after Joyce had struck the first
blows. /d.
In the context of Joyce's testimony and the other evidence that C armger
and Dunbar commiticd the crime together. Dunbar’s confession can he
convincingly read as the very real recollection of the crime if Carriger is
substituted for Joyce as striking the first blows with the skillct.
"°C arriger also identifies hearsay evidence of Dunbar boasting to friends
about how he set Carriger up. See maj. Op. at 14634. It's not clear if any
of this is reliabic enough to form the basis of a Schlup claim. but it doesn’t
matter because it all suffers from the same fatal Naw as Dunhar’s confes-
sion: it fails to show that Carriger is actually innocent of murder. and it
oo suggcsis only that Dunbar committed the murder with Carriger and set
Carniger up after the fact to take the fall by himself,
B-1l
Carricer v. STEWART
the story slip out over the years, he included Carriger (not
Joyce) as the accomplice: Asked directly about Carriger’s
involvement, Larry confirmed that “I picked up from Bob
{Dunbar} that |Carriger| was involved with the whole thing.”
R.T. 7-14-87 at 58. Patience Stevens, the youngest daughter,
once overheard Dunbar laughing about the murder: “Bob was
laughing, and then he said that—that the guy was begging for
Paris [Carriger] not to kill him and telling him that he had
family and that, and that he loved them.” R.T. 7-14-87 at 130.
Stephanie Stevens, another daughter, confirmed that Joyce
was at home in the living room—not out with Dunbar robbing
the jewelry store—the afternoon of the murder. It’s hard to
imagine anyonc—let alone twelve out of twelve reasonable
jurors—who would hear the new testimony of Joyce and her
children and still swallow Dunbar’s confession."
Short of proving that Carriger was not involved in the
crime, Dunbar’s vacillation might help Carriger in a subtler
way by impcaching a central witness for the prosecution. So
let’s assume that our imaginary jury would think Dunbar was
a liar and disregard his testimony altogether. This wouldn’t
help Carriger because the state’s circumstantial case is reason-
ably strong and stands independent of Dunbar’s trial testi-
mony. Even looking at the case anew, with a stigma of doubt
attached to everything that came out of Dunbar’s mouth, rea-
sonable jurors considering the remaining proof could and
would still find plenty on which to convict Carriger of felony
murder. Carriger knew Dunbar from prison and knew his rep-
utation as an accomplished burglar. Just two days before
Shaw’s murder, Dunbar and Carriger made a failed burglary
attempt. Carriger moved onto Dunbar’s Property the day
before the murder. The day of the murder, Carriger called in
"it’s even harder for me to imagine how the majority can review this
record and still say that “[t}here is no evidence that Dunbar and Carnger
acted together to commit the murder.” Maj. op. at 14634 n.1. Is the testi-
mony of Joyce and her children “no evidence” This testimony alone is
enough to discredit Dunbar’s confession and seal Carriger’s fate.
B-12
CarRiIGER Vv. STEWART
sick and spent the day with Dunbar. The two of them visited
jewelry stores, pawn shops and electronics Stores; they also
stopped to buy a gun. They walked into Shaw’s jewelry store,
where Dunbar commented that it would be an easy place to
hit. These certainly appear to be the actions of two veteraiis
planning a robbery.
There is more. Carriger’s fingerprint was found on the tape
used to bind Shaw’s wrists. Forensic post-trial evidence
shows that the print could only have gotten onto the tape at
the murder scene. See pp. 14675-78 infra. We also have the
droplets of blood found on Carriger’s boots. It’s true that they
were too small to test, and that they might have come from
a source other than Robert Shaw. But it’s not a big leap to
conclude that Carriger’s boots were splattered with blood at
the jewelry store and that Carriger’s feet were in them at the
time.
And more still. Carriger has no alibi. Nor did he adequatel:,
explain his incriminating actions after the robbery. That eve-
ning, after Dunbar supposedly Surprised him with the new;
that he had robbed a jewelry store while wearing Carriger’s
boots, Carriger made no effort to distance himself from Dun.
bar. Instead, he took the two cases—the gun Case and the atta-
che case containing the jewelry—and delivered them to
Dunbar’s stepdaughter. Carriger still had the key to the atta
che case when he was arrested.
A jury confronted with all the evidence at trial, plus Dun.
bar’s fleeting confession, plus the post-trial testimony 0,
Joyce and her children, plus the forensic evidence putting
Carriger at the scene, would not believe every syllable o°
Dunbar’s confession to the exclusion of everything else, as
the majority does here. Far more likely, a rational jury woulc
"Dunbar’s explanations during this confession are the road map the
majority uses to explain away all physical evidence of Carriger’s involve-
meni. See maj. op. at 14638 (“Dunbar explained that he had taken the
B-13
CARRIGER V. STEWART
regard all of Dunbar’s testimony as unworthy of belicf. But
it probably would accept the explanation of Joyce and her
children that Dunbar (who was living with them at the time)
pressured them into providing him with an alibi at Carriger’s
trial, and credit Joyce’s account that Dunbar and Carriger
committed the crime together. Dunbar’s statements about his
participation in the crime—about having bashed in a man’s
skull—would serve to implicate Dunbar, but would also count
heavily against Carriger as his accomplice. Joyce’s post-trial
Statement would also tie up other loose ends in the record,
such as how Dunbar’s fingerprints got on the jewelry. All
told, the case against Carriger—even with Dunbar’s testimony
completely omitted—is stronger now than it was at trial. It is
inconceivable that twelve rational jurors hearing the casc
today would unanimously find Carriger innocent of any and
all involvement in Shaw’s murder.
IV
The majority makes another egregious crror when it dis-
cards the state court’s finding that Dunbar’s confession was
not credible. The majority’s methodology will seriously
adhesive tape . . .”); id. at 14639 (“Dunbar testified that he gave Carriger
the attache case to give to Jackie White to hold;”); id. at 14639 (“Dunbar
testified in his confession that the clothes he led the police to were the
clothes he, Dunbar, had worn during the robbery”): id. at 14639 (*[WJhen
he confessed, Dunbar stated he planted Carriger’s jeans in the canal”); id.
at 14640 (“In his confession, Dunbar testified that he discurded the clothes
..."); id. at 14648 (“Dunbar, without immunity, confessed under oath to
committing the murder”); id. at 14649 (“Dunbar’s confession explained
why Carriger’s fingerprint was on the tape, although Carriger was not
there”).
One would hardly believe it’s the selfsame Dunbar the majority
describes as a “known habitual liar,” id. at 14620, a “habitual liar.” id. at
14622, a “less than reliable” informant, id. at 14630, “well known .. . to
be a liar,” id. at 14631, “manipulative” and “sociopathic.” id. at 14632.
14654, “lying,” id. at 14641, “vague and evasive,” id. at 14642, and sad-
died by a “long history of lying to police,” id. at 14650. 14655.
B-14
CAaRRIGER V. STEWART
undermine the degree of deference federal courts in this cir-
cuit give to state court findings of fact in habeas proceedings.
The state court here, it will be recalled, found that Dunbar
told the truth when he testified at trial and again when he
recanted his confession. The majority comes to the opposite
conclusion, finding Dunbar’s confession credible. In so doing,
it sets aside state court findings of fact which come to us with
a presumption of correctness; these findings must be given at
least as much deference as findings by our district courts, per-
haps a bit more. Indeed, it “would pervert the concept of fed-
eralism to conduct a more searching review of findings made
in state trial court than we conduct with respect to federal d:s-
trict court findings.” Hernandez v. New York, 500 U.S. 3£2,
369 (1991) (citation and intemal quotation marks omittec\).
The majority ignores this guidance and treats the state court’s
findings of fact with the skepticism usually reserved for fin4-
ings of Administrative Law Judges and Immigration Judges.
See, e.g., Washington v. Garrett, 10 F.3d 1421, 1430-31 (9th
Cir. 1993) (reversing ALJ); Aguilera-Cota v. INS, 914 F.2d
1375, 1381-82 (9th Cir. 1990) (reversing IJ); Turcios v. INS.
821 F.2d 1396, 1400 (9th Cir. 1987) (reversing LJ).
The majority first casts aspersions on the credibility find-
ings of Judge Ryan (who handled the state post-convicticn
proceedings) by noting that he did not also preside at Car-
riger’s murder trial. See maj. op. at 14637-38. But appella.e
court deference is based on the institutional competence of tte
factfinder, not merely his observation of the witnesses.
Anderson v. City of Bessemer City, 470 U.S. 564, 574-75
(1985). The added concems of finality and federalism make
an cven stronger case for deference on collateral review. Nor
can the majority take cover in the statutory phrase “as a
whole”: “We greatly doubt that Congress, when it used the
language ‘fairly supported by the record’ considered ‘as a
whole’ intended to authorize broader federal review of state
court credibility determinations than are authorized in appeals
within the federal system itself.” Marshall v. Lonberger, 459
U.S. 422, 434-35 (1983).
B-15
CAaRRIGER V. STEWART
in any event, Judge Ryan had plenty of opportunity to
observe Dunbar, Joyce, Joyce’s children and other witnesses.
Most significantly, of course, he saw Dunbar’s courtroom
confession, and six weeks later he saw the recantation. Judge
Ryan was therefore practically, not mercly institutionally, in
a better position to figure out when Dunbar was lying. “Title
28 U.S.C. § 2254(d) gives federal habeas courts no license to
redetermine credibility of witmesses whose demeanor has
been observed by the state trial court, but not by them.”
Marshall, 459 U.S. at 434.
The majority nitpicks its way through the record and con-
cludes that “each piece of evidence is as consistent with Dun-
bar’s confession as it is with his trial testimony.” Maj. op. at
14638. See also id. at 14634 n.1 (“[T}he inference that Dun-
bar acted alone is at least equally plausible.”); id. at 14639
(“Nothing establishes that the clothes had been worn by Car-
riger, rather than Dunbar.”) id. at 14640 (“The boots are no
more consistent with Carriger’s guilt than with Dunbar’s.”);
id. at 14648 (“other evidence . . . points as directly to Dunbar
as to Carriger”)." But if the evidence supports Dunbar’s trial
The majority draws each inference in favor of Carriger. It begins by
discarding the physical evidence, finding that: Carriger could not have lefi
only one fingerprint on the tape while binding Shaw's hands, maj. op. at
14638; Carriger’s having the key to the attache case meant nothing. id. at
14639; Dunbar wore Carriger’s clothes during the robbery. id. at 14639;
Dunbar planted Carriger’s jeans in the canal, id. at 14640; Carriger's fin-
gerprints on the gun case meant nothing, id. at 14640; Dunbar wore Car-
riger’s boots, id. at 14640, and Carriger would have Ieft recoverable
fingerprints on the jewelry had he not worm gloves. id. at 14640. The
majority then moves on to even more speculative muticrs. finding that:
Dunbar could not have known the details of the crime unless he panici-
pated, id. at 14641; Dunbar was not shown diagrams of the store: id. at
14641; Dunbar’s lawyer was not interested in publicity. id. at 14641; Dun-
bar was vague and evasive when recanting his confession. id. at 14641-42.
None of these findings had been made before in the twenty-year history
of this case, and each is used to support the majority's most speculative
(and contradictory) findings of all: that Dunbar was telling the truth when
he confessed. id. at 14642, and that he acted alone. id. at 14634 n.1. The
role of the factfinders in our criminal and habeas systems demands more
respect than this.
B-16
> Sor ep aRRESRRR reema
ene Pee
CARRIGER V. STEWART
testimony just as well as his confession, how can we reject the
state court’s finding that Dunbar told the truth at trial?
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroncous.” Anderson, 470 U.S. at 574. If the majority is
holding, as it seems to, that state court findings of fact will
only be upheld where the record supports no other scenario,
it has stepped directly in the path of a long train of contrary
authority. See, e.g., Purkett v. Elem, 514 U.S. 765, 769
(1995); Parke v. Raley, 506 U.S. 20, 35-36 (1992); Burden v.
Zant, 498 U.S. 433, 436-37 (1991); Demosthenes v. Baal, 45
U.S. 731, 736-37 (1990); Wainwright v. Witt, 469 U.S. 412,
434 (1985); Maggio v. Fulford, 462 U.S. 111, 118 (1983).
Worse still is the majority’s hopelessly one-sided review of
the record. The majority does not look to see whether there is
support for the state court’s presumptively correct findings;
rather, it chooses only those facts and inferences that under-
mine those findings. Take the single most damning piece of
proot against Carriger: his fingerprint on the adhesive tape
used to tic up Shaw’s wrists. If Carriger’s print got on the tape
before the murder, it could only have been on the outside of
the recl, which would place it on the first few inches used to
tic Shaw’s wrists. Nine feet of tape were used to tie up Shaw,
and most of it was found balled up in a large wad. The only
way any preexisting prints could have survived on the tape is
if the first six or so inches used to tie up Shaw had been left
uncovered and unsmudged when eight and one-half more feet
were wrapped around his wrists and wadded up into a bali.
Anyone who has used tape will know this is highly unlikely.
The usual way of applying tape is to stick the end piece to the
object being bound—be it a duct, a package or a human wrist
—and then bring the reel around the object and stick the sec-
ond layer of tape on top of the first. It would be remarkable
to use nine feet of tape to tie up a person’s wrists yet leave
the first six inches exposed. I have trouble imagining how this
might be donc.
B-17
CARRIGER V. STEWART
The jury heard the defense’s theory about the print at trial
and, not surprisingly, rejected it. The state has since con-
firmed this common sense conclusion with expert testimony.
A’ criminalist at the post-conviction proceedings explained
that, after cutting the wad of tape into seven pieces so he
could unravel it, he fit the pieces together end to end to see
where Carriger’s print was located. It was twenty-one and
one-half inches from the end of the tape—not on the first few
inches. This destroys Carriger’s theory and provides strong
proof that he was present and participated in the murder.
The majority agrees that the criminalist’s evidence must be
considered, but finds it unreliable and accords it “little
weight.” Maj. op. at 14639. The majority points to a perceived
inconsistency in the expert’s testimony because the criminal-
ist was unable to tell which end of the tape matched the end
of the roll. It is difficult to understand why the majority sees
this as inconsistent—either way the fingerprint is not near the
end. More remarkable is how quickly my colleagues are will-
ing to dismiss solid evidence that points directly to Carriger’s
guilt while blowing out of all proportion scraps of evidence,
like hearsay statements in Dunbar’s prison file, that might
conceivably point the other way. This is not the sober, dispas-
sionate review of the evidence Schiup calls for; it is a scaven-
ger hunt for anything that might cast doubt on the jury’s
verdict.
The fingerprint evidence is exactly the kind of proof that
should be given the greatest weight in making the Schlup
inquiry, as the expert witness testified under oath, and Car-
riger’s lawyer both interviewed him and cross-examined him
extensively. And the expert was unequivocal in locating Car-
riger’s print on the tape:
Q_ All right. Can you tell us how long the length of
tape is approximately?
A Approximately eight feet, nine inches.
B-18
ee oa os
CARRIGER Vv. STEWART
Q How many segments are there in that length of
tape?
Twelve.
Q Where is the segment in Exhibit 43, the latent
lift segment of tape—where does that occur
from the end of the metal roll of tape contained
in the plastic bag in Exhibit 41?
Approximately 21 and a half inches, ma’am.
Q To what degree of certainty are you certain of
this result? Did I ask a bad question? Is there
any degree of certainty that you can state that
you are confident in your conclusion that you
have reassembled the entire roll?
A lam certain that I have reassembled the segment
of tape that was torn to make the wad, and I am
certain that the latent fingerprint lift segment is
in its appropriate place in relation to the length
of tape and to the piece of tape on the ends of
the roll of tape.
MS. FUNKHOUSER: Your Honor, at this time I
would move to admit exhibits No. 41, 42, 43 and 54
for purposes of the offer of proof and I have no addi-
tional questions for this witness at this time.
THE COURT: Okay. Those exhibits are admitted
for the limited purposes of the offer of proof.
R.T. 12-11-87 at 56-57.
The evidence was not excluded for unreliability, as the
majority suggests. Rather, it was excluded because Carriger,
at the last minute, withdrew his challenge to the fingerprint
B-19
CARRIGER Vv. STEWART
evidence. Judge Ryan therefore ruled that the testimony from
the criminalist was no longer relevant:
The reason I am sustaining the defense’s objection to
calling these witnesses to present evidence is
because since the defense has abandoned their chal-
lenge to the fingerprint testimony, that I] don’t think
its relevant for you to present evidence, but you want
to make an offer of proof to show what the evidence
would be if the Court were to allow that.
R.T. 12-11-87 at 6. Following Judge Ryan’s suggestion, the
State presented the testimony as an offer of proof, just in case
Carriger decided to challenge the fingerprint evidence later
on. Carriger has now done so and the testimony of the crimi-
nalist must be accorded due weight.
The majority also relies on the fact that only one fingerprint
was found on the tape: “Had Carriger left the print while
binding the victim, as the state contends, it is difficult to
understand how he could have left only one print.” Maj. op.
at 14638. This is silly. We are not talking here about nine fect
of tape laid out flat like an FBI fingerprint card.“ Most of the
tape was stuck to itself and rolled up in a big wad, hardly the
ideal medium for latent fingerprints: “The development of fin-
gerprints on adhesive tape has always been a challenge for
latent fingerprint examiners.” Advances in Fingerprint Tech-
nology 88 (Henry C. Lee & R.E. Gaensslen eds., 1994). How
many recoverable prints do my colleagues expect to find on
such an inhospitable surface? I find it surprising that even a
“Even those little cards aren't foolproof. Working under ideal
conditions—a willing subject, a flat card clasped firmly into place, fingers
drenched in printer’s ink—it often takes experts several tries to produce
a usable set of prints. Under less ideal conditions, obtaining a usable print
is very chancy. It depends on several factors: The kind of surface on which
the print might be left, how oily or dry the individual’s skin is, and
whether anything has smudged the print. See Advances in Fingerprint
Technology 60-63 (Henry C. Lee & R.E. Gaensslen eds., 1994).
CARRIGER V. STEWART
Single readable print was retrieved from a wad of adhes‘ve
tape cut from the body of a murder victim.
In the end, it matters not whether my view of the evidence
or that of the majority prevails. Let’s say the majority’s view
is plausible. The contrary view—held by the jury, Jucge
Ryan, the Arizona Supreme Court, and the district court—
surely is plausible as well. What I find alarming is the majori-
ty’s methodology, which is to take one view of the evidence,
and one view only, ignoring the proof and reasonable infer-
ences pointing the other way. Section 2254(d) demands far
greater deference to state court judges. And not just in degree,
but in basic approach: Reviewing the record “as a whole”
isn’t a license to draw every single inference in favor of the
petitioner.
We've been reversed for this kind of thing before. In
Sumner v. Mata, the Supreme Court admonished us that the
presumption of correctness could not be cast aside through
pro forma acknowledgment of section 2254:
Obviously, if the [Ninth Circuit] Court of Appeals
... Or any other court of appeals had simply inserted
a boilerplate paragraph in its opinion that it had con-
sidered the state record as a whole and concluded
that the state appellate court’s factual determinations
were not fairly supported by the record, this objec-
tion to the judgment of the Court of Appeals could
not as easily be made. Just as obviously, this would
be a frustration of the intent of Congress in enacting
§ 2254(d).
Sumner v. Mata, 449 U.S. 539, 549 (1981). Each underlying
fact is entitled to a presumption of correctness unless an
exception to 2254(d) applies; federal courts reviewing state
findings on habeas must face up to any disagreement as :o
each one of these facts. Compare Mata v. Sumner, 69% F.id
1244 (9th Cir. 1983), Mata v. Sumner, 649 F.2d 713 (9th Cir.
B-21
CaRRIGER V. STEWART
1981) and Mata v. Sumner, 611 F.2d 754 (9th Cir. 1979) with
Sumner v. Mata, 455 U.S. 591 (1982) and Sumner v. Mata,
449 U.S. 539 (1981). The majority’s willingness to nimbly
pick its way through the evidence and come up with its own
appellate factfinding bodes ill for the doctrine of deference to
State court findings. The presumption of correctness is ieft in
tatters.
Vv
On the other side of the Schlup gateway, the majority dis-
covers a Brady violation. But my colleagues gloss over a key
fact: Before trial Carriger himself wrote his lawyer, Thurman
Gay, alerting him to Dunbar’s history as an informant and
directing him to get Dunbar’s prison record. Carriger’s letter
States in relevant part:
Point #3 ,
Bobby Dunbar was the informant for the state
against John Douglas Troutman for a safe burglary
of the National Cash Register Company (about !968
I think)
Point #4
Perhaps while we are getting Dunbar's prison |
record we should also get a copy of mine.
Attachment to District Court Record on Appeal at 126 (April
18, 1978 letter to Thurman Gay) (emphasis added). :
Brady does not require the prosecutor to direct a counter-
investigation to destroy its own case. See United States v. |
McVeigh, 954 F. Supp. 1441, 1449 (D. Colo. 1997). Accord-
ingly, a defendant who has specific knowledge of the evi-
B-22
iam
CarriceR Vv. STEWART
dence “withheld” but fails to request it cannot claim a Brady
violation. The government need not give notice sua sponte
where the accused has knowledge of the documents in ques-
tion. See Routly v. Singletary, 33 F.3d 1279, 1285 (11th Cir.
1994); United States v. Iverson, 648 F.2d 737, 738-39 (D.C.
Cir. 1981); Ross v. Heyne, 638 F.2d 979, 986 (7th Cir. 1980);
United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir.
1980); United States v. Prior, 546 F.2d 1254, 1259 (Sth Cir.
1977); Hampton v. United States, 504 F.2d 600, 603 (10th
Cir. 1974); Wallace v. Hocker, 441 F.2d 219, 220 (9th Cir.
1971). The prosecutor in this case breached no duty.
Dunbar’s prison file would have provided further proof that
Dunbar was a snitch, a thief and a liar. Carriger alerted Gay
to the existence of the file. Gay apparently decided that he had
enough to impeach Dunbar. Not a wise choice, perhaps, but
neither is it one for which the prosecutor must shoulder the
blame under Brady. A prosecutor has no duty to investigate
and tum over impeachment evidence the defense already
knows about. Carriger’s Brady claim fails.
Vi
This is a difficult case. The state relied heavily on the testi-
mony of an unreliable informant. Still, its case at trial was
sufficient and nothing that has come to light since the verdict
ushers Carriger through the actual innocence gateway. When
navigating the murky waters of “fundamental miscarriage of
justice,” we ought to stick close to the rules handed down by
the Supreme Court and accept the guidance provided.
Because I disagree with the majority’s reading and application
of Schlup, | dissent.
hall
aa i i ME in ae Balen er
TET PAE
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
PARIS HOYT CARRIGER, No. CIV-95-1617-PHX-PGR
MEMORANDUM OF
DECISION AND ORDER
Petitioner,
SAMUEL LEWIS, et al.,
)
)
)
)
VS. )
)
)
)
Respondents, )
)
Petitioner, Paris Hoyt Carriger, has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. He alleges that the State of
Arizona convicted him of murder and sentenced him to death in violation
of his constitutional rights. Petitioner filed a previous petition for writ of
habeas corpus challenging the same conviction and sentence. See Carriger
v. Lewis, CIV 85-1608-PHX-CAM. That petition was denied. See
Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992), cert. denied, 113 S. Ct.
1600 (1993).
FACTUAL BACKGROUND
On March 13, 1978, Robert Shaw’s jewelry store was robbed. The
robber tied Mr. Shaw’ hands behind his back and repeatedly struck him on
the head with an iron skillet, and then strangled him with his own necktie.
The robber took jewelry from the store.
Two days later. Petitioner was indicted for the robbery and first-
degree murder of Mr. Shaw. At trial, Robert Dunbar (“Dunbar”) was the
state's key witness who testified against Petitioner.
PROCEDURAL HISTORY
Petitioner was convicted of first-degree murder and robbery on July
28, 1978. and sentenced to death on October 27, 1978. The Arizona
Supreme Court affirmed the conviction and sentence. State v. Carriger.
123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1045 (1980).
On September 29. 1981, Petitioner filed a petition for post-conviction
relief in state court. The petition was denied on January 29, 1982. On
C-]
appeal, the Arizona Supreme Court held that Petitioner was entitled to a
new sentencing hearing because his counsel had rendered inadequate
assistance at sentencing. State v. Carriger, 132 Ariz. 301, 645 P.2d 816
(1982). The Arizona Supreme Court also remanded for consideration of
all other claims properly raised in the petition for post-conviction relief.
Id. On remand, on October 27, 1982, Petitioner was again sentenced to
death. The Arizona Supreme Court affirmed the death sentence and
rejected the post-conviction claims on December 6, 1984. State _v.
Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), cert. denied, 471 U.S.
11il (1985).
On July 5, 1985, Petitioner filed a petition for writ of habeas corpus
in this Court. Carriger v. Lewis, CIV 85-1608-PHX-CAM. The petition
was dismissed by order dated June 5, 1986. Petitioner appealed to the
United States Court of Appeals for the Ninth Circuit.
In the meantime, Petitioner filed a second petition for post-conviction
relief in state court based on alleged newly available evidence. After a six-
day evidentiary hearing, relief was denied on February 22, 1988. The
Arizona Supreme Court denied the petition for review on October 25,
1988.
On May 27, 1990, while the appeal in the Ninth Circuit was still
pending, Petitioner filed a Rule 60(b) motion in this Court requesting a
new trial or reconsideration of the order denying federal habeas corpus
relief, based on the alleged newly available evidence. The motion was
denied by orders dated June 8, 1990, and July 25, 1990.'
On November 4, 1991, a panel of the Ninth Circuit affirmed this
Court's denial of habeas corpus relief. Carriger v. Lewis, 971 F.2d 329
(9th Cir. 1992), cert denied, 113 S. Ct. 1600 (1993).
On February 14, 1994, Petitioner filed a third petition for post-
conviction relief in state court. It was denied without an evidentiary
hearing on April 11, 1994. The Arizona Supreme Court denied the
petition for review on July 13, 1995.
1. The Ninth Circuit subsequently vacated these orders after
determining that this Court did not have jurisdiction to entertain the Rule
60(b) motion. Carriger v. Lewis, 971 F.2d 329 332 (9th Cir. 1992).
Prior to the filing of the motion, the Ninth Circuit outlined for petitioner
the procedure he needed to follow to vest this Court with jurisdiction, but
he declined to follow it. Id.
C-2
’
On August 8, 1995, Petitioner filed the present Petition for Writ of
Habeas Corpus in this Court. Respondents filed an Answer and Petitioner
filed a Traverse.
DISCUSSION
Applicable Law
Pursuant to the United States Supreme Court's holding in Sawyer v.
Whitley, unless a habeas petitioner shows cause and prejudice, a federal
district court cannot reach the merits of:
(a) successive claims which raise grounds identical to grounds
heard and decided on the mentis in a previous petition,
Kuhimann_v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91
L.Ed.2d 354 (1986); (b) new claims, not previously raised which
constitute an abuse of the writ, McCleskey v. Zant, 499 U.S.
[465], 111 S. Ct. 1454, 113 L. Ed.2d 517 (1991): or (c)
procedurally defaulted claims in which the petitioner failed to
follow applicable state procedural rules in raising the claims.
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986)
Sawyer v. Whitley, 505 U.S. __» 112 S. Ct. 2514, 2518 (1992) (emphasis
in original); see also Clark v. Lewis, 1 F.3d 814, 819 (9th Cir. 1993); 28
U.S.C. §§ 2244(b), Rule 9 of Rules Governing Sections 2254 Cases
(1988).
In procedural default cases, the cause standard requires the petitioner
to show that “some objective factor external to the defense impeded
counsel's efforts” to raise the claim in state court. Murray v. Carrier, 477
U.S. 478, 106 S. Ct. 2639, 2645 (1986). Objective factors which
constitute cause include interference by officials which makes compliance
with the state’s procedural rule impracticable, a showing that the factual or
legal basis for a claim was not reasonably available to counsel, and
constitutionally ineffective assistance of counsel. Id.
In an abuse-of-writ inquiry, the respondents have the burden of
pleading abuse of the writ by setting forth with clarity and particularity the
petitioner's prior writ history, identifying the claims that are new. and
alleging that the petitioner has abused the writ. McCleskey v. Zant, 499
U.S. 467, 494, 111 S. Ct. 1454, 1470 (1991). The burden of proof then
shifts to the petitioner to show cause and prejudice, or that a fundamental
miscarriage of justice would result if the claim is not heard. Id. The cause
Standard to be met is the same as that for procedural default. Id.
For a successive claim. a petitioner must show “cause for seeking
review of the same claim twice--such as the discovery of new facts, or an
intervening change in the law, that warrants reexamination of the same
C-3
ground for relief raised in an earlier petitioner.” Campbell _v. Blodgett,
997 F.2d 512, 524 (9th Cir. 1993).
“Prejudice” is actual harm from the alleged constitutional errors.
McCleskey, 499 U.S. at 494, 111 S. Ct. at 1470. An evidentiary hearing
is not necessary to allow a petitioner to show cause and prejudice if the
court determines as a matter of law that the petitioner cannot satisfy the
standard. Id.; see also Clark, | F.3d at 820.
If a Petitioner cannot meet the cause and prejudice standard, the court
still may hear the merits of abusive, successive, or procedurally barred
claims if the failure to hear the claims would constitute a “fundamental
miscarriage of justice.” Sawyer, 122 S. Ct. at 2518; McCleskey, 499 U.S.
at 494-95, 111 S.Ct. at 1470. The “fundamental miscarriage of justice”
exception is also known as the “actual innocence” exception. There are
two types of claims recognized under this exception: 1) that a petitioner
is “innocent of the death sentence,” or, in other words, that the death
sentence was erroneously imposed; and 2) that a petitioner is actually
innocent of the capital crime. In the first instance, the petitioner must
show by clear and convincing evidence that, but for a constitutional error,
no reasonable juror would have found the existence of an aggravating
circumstance or some other condition of eligibility for the death sentence
under the applicable state law. Sawyer, 112 S.Ct. at 2517, 2522. Claims
regarding errors in the submission of mitigation evidence do not relate to
a “condition of eligibility” and cannot form a basis for relief under this
exception. Id. at 2523.
Claims of actual innocence of the crime itself are judged under a
different standard. The petitioner must show that “a constitutional
violation has probably resulted in the conviction of one who is actually
innocent.” Schlupv. Delo, —- ~-U.S. __, 115 S.Ct. 851, 867 (1995). To
establish the requisite probability, the petitioner must show that “it is more
likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Id. at 867. A district court must consider the
probative force of all relevant evidence on a reasonable juror, including
evidence alleged to have been illegally admitted and evidence tenably
claimed to have been wrongly excluded or to have become available only
after the trial. Id. The court also may have to determine how the timing
of the submission of evidence and credibility of affiants bear on the
probable reliability of that evidence. Id. at 868-69.?
2. Substantive (or “free-standing”) claims of actual innocence must
be distinguished from procedural claims. See Schlup, 115 S. Ct. at 860.
C-4
Claims Raised in Fi ral orpus Petition
On July 5, 1985, Petitioner filed his first federal habeas corpus
petition. (85 File doc. 1)’ He raised the following claims:
A. The trial court limited Petitioner’s counsel’s cross-
examination of Dunbar, the state’s key witness, in violation of
Petitioner’s right to compulsory process and due process under
the Sixth and Fourteenth Amendments.
B. Petitioner was denied effective assistance of counsel at and
before trial in violation of the Sixth and Fourteenth
Amendments, including counsel’s failure to conduct an
investigation into Dunbar’s veracity.
C. Petitioner’s due process rights were violated because the
jury was not permitted to consider a verdict of guilty on a lesser
included non-capital offense of second-degree murder.
In Herrera v. Collins, 506 U.S. __, 113 S. Ct. 953 (1993), the petitioner
advanced his claim of innocence to support a novel substantive
constitutional claim that the execution of an innocent person would violate
the Eighth Amendment even if the proceedings that had resulted in his
conviction and sentence were entirely fair and error-free. In that case an
extraordinarily high standard of review was applied. In contrast, in Schlup
the petitioner accompanied his innocence claim with an assertion of
constitutional errors at trial (ineffectiveness of counsel and withholding of
evidence.) In such a case, if a petitioner“presents evidence of innocence
So strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through the
gateway and argue the merits of his underlying claims.” Schlup, 115 S.
Ct. at 861.
3. “85 File doc. __” refers to documents in the Court’s file opened
in 1985 upon the filing of the first petition. “95 File doc. __” refers to
documents in the Court's file opened in 1995 upon the filing of the second
petition. “Resp. Attach. __” refers to the Attachments to the Answer in
the 1989 file. “Pet. Ex. __” refers to exhibits to the petition filed August
8, 1995. “R.O.A. ___” refers to documents in the file of the Arizona
Superior Court. A copy of that record is provided as exhibits to the
answer to the 1995 petition. “R.T.” refers to reporter's transcripts.
C-5
D. The issue of whether the murder was accomplished for
pecuniary gain was reconsidered in Petitioner's subsequent 1982
resentencing in violation of the Double Jeopardy Clause.
E. Arizona’s capital sentencing scheme violates the Eighth and
Fourteenth Amendments because it would be ten times more
likely for the murderer of a white victim to be on death row than
it would be for the murderer of a non-white victim.
F. Petitioner was denied his Sixth Amendment right to have
the existence of an aggravating circumstance decided by a jury.
G. Arizona's capital sentencing scheme violated Petitioner's
due process rights because it did not require the trial court to
find that aggravating circumstances outweighed mitigating
circumstances beyond a reasonable doubt. or that mitigating
evidence was not sufficiently substantial to call for leniency
beyond a reasonable doubt.
H. Petitioner was denied due process of law when the trial
court instructed the jury on the elements of second-degree
murder but did not provide them with a verdict form for that
lesser included offense.
(85 File doc. 1)
Petitioner was denied habeas corpus relief on these claims. See
Carriger v. Lewis, 948 F.2d 588 (9th Cir. 1991); Carriger v. Lewis, 97]
F.2d 329 (9th Cir. 1992).
Claims Raised in the Present Federal Habeas Co Petition
Petitioner raises the following claims in his present petition:
1. Petitioner is imprisoned in violation of his rights under the
Fourteenth Amendment because no rational finder of fact could
conclude beyond a reasonable doubt he murdered Robert Shaw
in light of all the presently available evidence.
2. Petitioner’s death sentence violates the Eighth and
Fourteenth Amendments because of the Arizona courts’ refusal
to consider Robert Dunbar’s involvement in the crime as a
mitigating circumstance.
3. Petitioner's conviction and death sentence violate the Sixth,
Eighth and Fourteenth Amendments because the state failed to
disclose exculpatory evidence undermining the credibility of
Robert Dunbar and indicating he was the actual murderer.
4. Petitioner’s conviction and death sentence violate the
Fourteenth Amendment because he was incompetent to stand
trial and to be sentenced due to longstanding mental illness.
C-6
5. Petitioner’s death sentence violates the Sixth, Eighth and
Fourteenth Amendments because his court-appointed lawyers
failed to provide him effective assistance of counsel at his 1982
resentencing.
(95 File doc. 1)
First Claim.
Petitioner’s first claim for relief is an “actual innocence” claim.
Petitioner argues that no direct evidence connected him to the crime, that
the circumstantial evidence was consistent with the defense theory that
Dunbar committed the crime and framed Petitioner, and that even more
circumstantial evidence implicated Dunbar. In addition, Petitioner argues
that the following evidence came to light after his conviction: Dunbar was
violent and had committed robberies: on other occasions Dunbar had
provided false information to the authorities: in 1987 Dunbar’s ex-wife said
Dunbar admitted framing Petitioner and she admitted providing a false
alibi; in 1987 Dunbar confessed under oath that he committed the murder:
several years later, Dunbar confessed to his prison cellmate the he had
killed Mr. Shaw. Petitioner argues that the jury would not and could not
have convicted him had it heard this evidence, which was not then
available or was not presented due to constitutional error. (95 File doc. |
at 10-16)
This claim was presented in Petitioner’s second and third petitions for
post-conviction relief in state court. The state court rejected the claim on
the merits. (R.O.A. 312,400)
Petitioner has accompanied his actual innocence claim with an
assertion of constitutional error at trial (incompetency to stand trial and
withholding of evidence). A claim of “actual innocence” is not itself a
constitutional claim, “but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.” Herrera v. Collins, 506 U.S. BUS Fe F
853, 862 (1993). As stated earlier, if Petitioner presents evidence of
innocence so strong that the Court cannot have confidence in the outcome
of the trial unless the Court is also satisfied that he trial was free of
nonharmless constitutional error, Petitioner “should be allowed to pass
through the gateway and argue the merits of his underlying claims.”
Schlup v. Delo, —-—«aU.S. __, 115 S. Ct. 851, 861 (1995). Petitioner
must establish that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent” by showing that “it is more
likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Id. at 867. The Court must consider the
probative force of all relevant evidence on a reasonable juror, including
C-7
evidence alleged to have been illegally admitted and evidence tenably
claimed to have been wrongly excluded or to have become available only
after the trial. Id. The Court also may determine how the timing of the
submission of evidence ad credibility of affiants bear on the probable
reliability of that evidence. Id. at 868-69.
At Petitioner's trial in 1978, crucial physical evidence linked
Petitioner to the hornicide:
- Petitioner’s fingerprint was found on the tape binding
the victim's hand.
- Jackie McCullar testified that Dunbar and Petitioner drove
to her house and Petitioner walked up to her porch and
handed her two cases. Later, the attache case was
discovered to contain the stolen jewelry. The other case
contained a gun.
- There was evidence that the key which opened the
attache case was the same key taken from Petitioner
when he was arrested.
- Petitioner’s fingerprints were found on a gun cleaning
kit inside the gun case.
- Other testimony established that a discarded pair of
Shoes belonged to Petitioner. A criminalist testified
that he detected bloodstains on the shoes, but he could
not determine whether the stains were animal or
human blood.
- Clothing discarded along a road and in a canal was
identified as belonging to Petitioner.
This evidence, without the testimony of Dunbar, would sustain the verdict.
Dunbar’s testimony corroborated the physical evidence.
Petitioner did not testify at trial; however, he did testify at a post-
conviction relief hearing in 1982. Petitioner testified that on the morning
of the day of the murder he called his boss and told him he would not be
in to work. (R.T. 10/21/82 at 28: Resp. Attach. X) Petitioner and
Dunbar spend the rest of the morning and early afternoon shopping. (Id.
at 29-32, 36-39). Dunbar purchased a gun with money Petitioner had
given him. (R.T. 10/21/82 at 33-36: Resp. Attach. W) They also went
to Mr. Shaw’s jewelry store where Dunbar had the crystal on his watch
repaired. (Id. at 37-38) They returned to Dunbar’s home at about 3:30 or
4:00 p.m. (Id.) (This testimony was basically the same as Dunbar’s trial
testimony.) The murder occurred between 4:00 and 6:00 p.m. At trial,
Petitioner had no alibi for his whereabouts at the time of the murder.
C-8
Shortly before his arrest, Petitioner altered his appearance by shaving his
head. (R.T. 7/13/78 at 50)
At an evidentiary hearing for post-conviction relief proceedings in
1987, a criminalist testified (as an offer of proof) that he reconstructed the
eight-foot length of tape cut off of the victim’s hands, and determined that
Petitioner’s fingerprint was located twenty-one and one-half inches from
the end of the tape. (R.T. 12/11/87 at 51, 56-57) This evidence
countered Petitioner’s argument that his fingerprint was already on the end
of the tape prior to the murder and Dunbar took the tape out of his van
without his knowledge.
The Court finds that it is more likely than not that any reasonable
juror would still have found Petitioner guilty beyond a reasonable doubt
despite Petitioner's “newly discovered” evidence. The evidence of
Dunbar’s alleged violence and robberies merely serves to attack Dunoar’s
credibility. It is information from a presentence report contained in
Dunbar’s Department of Corrections file. (Resp. Attach. EE) The report
says that a 1968 polygraph test report says: “[Dunbar] said that about two
and a half to three years ago, he was not sure, he. and apparently two
others, committed armed robbery in Phoenix and in California... He
denied being involved in a bank robbery. . .he said a gun was not used.
that they would point their fingers under a coat at the victims.” This
evidence would probably have been inadmissible at trial. See State v.
Madsen, 125 Ariz. 346, 351, 609 P.2d 1046, 1051 (1980) (“In Arizona,
it is error, absent a stipulation between parties, to refer at trial to
polygraph examinations for any reason.”). The Statement appears to have
been written by the pre-sentence investigator based on information from the
polygraph operator. Its reliability is Suspect. Petitioner has not shown that
either of these persons would have been available to testify that Dunbar
4. At the evidentiary hearing, Petitioner did not put on experts
challenging the fingerprint evidence, even though he had informed the state
that he planned to do so. Therefore, the state was not allowed to have the
criminalist’s testimony admitted as evidence. However, the state was
allowed to make it an offer of proof. Petitioner had the criminalist’s report
a week before the hearing, interviewed him, and cross-exar ir2¢ kim at the
hearing. (R.T. 12/11/87 at 4-6, 57-66) This Court can pr: perly consider
the testimony in deciding Petitioner’s actual innocence claim. Pursuant to
Schlup, the reviewing court is to consider the probative force of “all the
evidence” including “relevant evidence that was either excluded or
unavailable at trial.” 115 S. Ct. at 867.
C-9
actually made such a statement. See Uni tates v. Williams, 668 F.2d
1064, 1067 (9th Cir. 1981); Dickinso ly _v. -Dakot
Utilities _Co., 423 F.2d 106, 109 (8th Cir. 1970). In addition, the
Statement was ten years old. _(R.T. 8/28/87 at 91.) Even if it had been
admitted to impeach Dunbar, the result would likely have been the same.
The jury already knew that Dunbar had six prior felony convictions for
burglary, that he had committed a burglary just three days prior to the
murder, that he lied on a gun registration form, and that on one occasion
he had struck his step-daughter. See discussion infra. at 23-24.
Nevertheless, the jury believed Dunbar. There was enough corroborating
evidence in the case for the jury to believe Dunbar’s testimony was
truthful.
Petitioner also points to evidence that Dunbar had a history of
providing false information to the authorities. That evidence is discussed |
in detail below with respect to Petitioner's third claim. Dunbar’s possible
bias and motive for testifying against Petitioner, and evidence that Dunbar
had lied on other occasions, was brought out at trial. See discussion infra
at 23-24. It is unlikely that Petitioner's additional impeachment evidence
would have caused the jury to reach a different verdict in this case. See
Clark _v. Lewis, 1 F3d 814, 824 (9th Cir. 1993) (holding that
impeachment evidence seldom, if ever, can establish innocence of the death
penalty); Allen v. Nix, 55 F.3d 414, 417 (8th Cir. 1995) (holding that
impeachment evidence was insufficient to establish actual innocence).
Next, Petitioner relies on the 1987 testimony of Joyce Stevens,
Dunbar’s ex-wife, who recanted her 1978 trial testimony. At trial,
Ms. Stevens (then married to Dunbar) testified that Dunbar was at home
asleep at the time of the murder. Nine years later, at an evidentiary
hearing in state court on Petitioner’s second petition for post-conviction :
relief, Ms. Stevens said her trial testimony was false. (R.T. 8/27/87) She
testified that on the day in question, Dunbar left their house carrying
something round wrapped in a towel, and that the iron skillet used in the
murder appeared to be one from a set she had. (Id. at 18-20, 24) She
also testified that a couple years after the trial Dunbar told her that he and
Petitioner had entered the jewelry store through the back door and he
(Dunbar) killed Mr. Shaw. (/d. at 32) The state court judge who
conducted the hearing found that Ms. Stevens was not a credible witness.
(R.O.A. 312) A state court’s factual findings (including credibility of |
witnesses) are presumed correct if fairly supported by the record. Marshall
v. Lonberger, 459 U.S. 422 432, 103 S.Ct. 843 (1983). The state court's
finding is fairly supported by the record. Only a month before the hearing,
Ms. Stevens told the state’s attorneys that her trial testimony was the truth.
C-10
'
ccc I
(R.T. of 8/27/87 at 83-84) Her hearing testimony conflicted with the
physical evidence in significant ways including evidence at trial that there
was no back door to the jewelry store. It is also incredible that Dunbar
would take a skillet with him to perpetrate a burglary. The only logical
and credible evidence about the skillet was that it came from the hot plate
inside the jewelry store. In many instances, Ms. Stevens could not
remember facts about which she had given statements only a year before.
(Id. at 27-28, 52, 55-57, 63, 66, 72-73) Her testimony was that of a
recanting witness who had been given testimonial immunity. (Id. at 8)
She admitted that she was angry with Dunbar for mistreating her and her
children, and that she hoped to obtain police protection and to see Dunbar
stay in prison as a result of her testimony. (Id. at 97-98) Furthermore.
although her testimony (if believed) implicated Dunbar, it did nothing to
exonerate Petitioner. A reasonable juror would still have found Petitioner
guilty beyond a reasonable doubt.
Petitioner also relies on Dunbar’s 1987 confession. At trial. Dunbar
testified about how Petitioner told him about the robbery and murder, how
he helped Petitioner dispose of clothes and other physical evidence, and
how he tried to sell some of the jewelry for Petitioner. On August 28,
1987, at the evidentiary hearing in state court, Dunbar denied Ms. Stevens’
allegations and affirmed his prior trial testimony. However, ©. October
30, 1987, he testified that his trial testimony was false and that he and Ms.
Stevens committed the robbery and murder. (Pet. Ex. E) He said that it
was Ms. Stevens who panicked and wanted to kill Mt. Shaw and that when
Dunbar would not shoot him, she struck him with the skillet. Dunbar also
testified that Ms. Stevens had participated in more than ten burglaries with
him. (Id. at 9, 13, 43-45) A few weeks later. on December 11, 1987,
Dunbar recanted this confession. (Pet. Ex. F) He said that he gave that
false testimony in order to get even with his ex-wife because she lied. He
was also angry with the County Attorney's Office because he received an
eleven-year sentence for recent burglaries, and the Attorney General's
Office because they would not help him get transferred to another prison.
Dunbar also believed he could sell his story to a publisher. (Id. at 73-83,
95-100, 136) The state court found that Dunbar’s confession of October
30, 1987, was incredible and inconsistent with the physical evidence,
testimony of other trial witnesses, and his prior trial testimony. (R.O.A.
312) The state court also found that Dunbar obviously fabricated his
“confession” for revenge and monetary gain. (Id.) These findings are
fairly supported by the record.
At the culmination of the 1987 evidentiary hearing, the state court
held:
C-1]
Dunbar’s 1978 trial testimony is supported by the physical
evidence and the testimony of other witnesses such as Jackie
McCullar and Dennis Stevens. Crucial physical evidence linking
Petitioner to the homicide includes his fingerprint on the tape
binding the victim's hands, the attache case key found in
Petitioner's property, the discarded clothes with the inside
pockets removed where Carriger customarily placed his initials,
Carriger’s prints on the gun case, and the boots worn during the
robbery which a number of witnesses in previous proceedings
testified belonged to Petitioner. The evidence plainly establishes
Petitioner's guilt.
The theory of Petitioner that Dunbar planted most of the
physical evidence as part of an elaborate scheme to frame
Carriger is without merit. It is obvious from these proceedings
that Dunbar is not capable of either perpetrating or perpetuating
such a scheme. He could not even stick to his claim that his
trial testimony was false for more than a couple of weeks. What
happened here confirms what the Supreme Court said in 1984;
“[njothing presented to this Court indicates Dunbar has the
ability to conceive such a story and maintain it under
questioning.” 143 Ariz. at 151.
(R.O.A. 312) This Court finds that any reasonable juror would conclude
that Dunbar’s recanting testimony of October 30, 1987, is clearly
incredible.
Last, Petitioner alleges that Dunbar again confessed to the murder.
In support of this allegation, Petitioner submits the affidavit of Bernard
Campbell dated September 26, 1993. (Pet. Ex. A) Mr. Campbell's
affidavit states that he is an inmate at the Perryville state prison. He met
Dunbar in 1989 and was his cellmate from April to December 1991. The
affidavit further states:
While | was housed with Bob [Dunbar], I heard from other
inmates in Perryville that Bob had snitched on a guy. Bob told
me personally he had killed a guy. Bob was aware of convicts
ethics which state you just do not snitch.
Bob denied that he had “snitched.” He also said that Paris
{Carriger] was the one who had “snitched” about the killing.
Bob told me that Paris took Bob's gun, went to the police and
told them everything.
A law clerk at Perryville insisted that Bob was lying, so |
looked up the case in the law books. The case indicated that
Bob had been the snitch, so |] confronted him about it.
C-12
Bob admitted that he killed Robert Shaw so that Shaw could
not identify him. Bob said that he only thing he could do was
blame Paris for it because Bob did not want to take the “fall.”
Bob did not say that Paris was there when Mr. Shaw was
killed.
(Pet. Ex. A) The state court's finding that the affidavit is incredible is
fairly supported by the record. (R.O.A. 400) The affidavit does not say
when Dunbar made these admissions. Dunbar died in December of 1991.
(95 File doc. | at 8) Assuming that Dunbar made the statements sometime
in 1991, they were made thirteen years after the trial. In addition.
Mr. Campbell's account of what Dunbar told him would be inadmissible
hearsay. There are no corroborating circumstances or other indicia of
reliability. Furthermore, Dunbar obviously had a strong motive to lie to
Mr. Campbell. Dunbar was in a dangerous position having been labeled
as a “snitch” in prison. It is clear from the affidavit that Dunbar
“confessed” only because Mr. Campbell pressured him for an explanation.
It would be to his advantage to have other inmates believe he had murdered
someone. Thus, the belated “confession” is incredible. In contrast,
Dunbar’s 1978 trial testimony is consistent with the physical evidence and
is corroborated by the testimony of other trial witnesses. The Court finds
that the verdict probably would not have been altered.
In sum, the Court concludes that Petitioner has failed to show that is
more likely than not that no reasonable juror would have found Petitioner
guilty beyond a reasonable doubt. Therefore, a review on the merits of his
underlying constitutional claims is not justified under the “actual
innocence” exception.
Second Claim.
For his second claim, Petitioner argues that the state court in post-
conviction relief proceedings failed to recognize the “new” evidence
implicating Dunbar to be a mitigating circumstance and improperly refused
to reconsider Petitioner's death sentence in light of that evidence. (95 File
doc. | at 17-18) After the post-conviction relief hearing in 1987, the state
court held:
Petitioner's final claim is that he should be resentenced to
life. The basic claim is that Dunbar’s recantation calls into
question applicability of the death penalty. Also, it is claimed
that no death penalty should stand on the testimony of someone
of Dunbar’s character. This latter claim was made in 1982 and
rejected by the Supreme Court and is therefore precluded. 143
Ariz. at 162.
C-13
The murder here was clearly cruel, heinous and depraved.
It was also committed for pecuniary gain; further, Carriger had
previously been convicted of a felony that included the use or
threat of violence on another person. Accordingly, there are
sufficient aggravating circumstances to support the death penalty.
The evidence shows the murder was committed by
Carriger; Dunbar’s recantation is simply unbelievable. The
testimony of other witnesses even if believed in its entirety
indicates Dunbar was there and may have participated in the
robbery and homicide. However, it does not exonerate or
mitigate Petitioner's role in the murder of Mr. Shaw.
(R.O.A. 312) Regarding the testimony of the “other witnesses,” the state
court further held: “The statements attributed to Dunbar by these witnesses
do not raise more than vague inferences that he was involved with Carriger
in the robbery and homicide.” (Id.) In 1994, the state court again rejected
Petitioner’s claim that his death sentence must be vacated, finding that Mr.
Campbell's affidavit was unreliable and incredible. (R.O.A. 400) The
Arizona Supreme Court denied the petitions for review of these decisions.
Petitioner is not entitled to relief on this claim. Claims of error in the
statێ post-conviction review process are not addressable through habeas
corpus proceedings. Franzen v. Brinkman, 877 F.2d 26 (9th Cir.), cert.
denied, 493 U.S. 1012 (1989); Bonin v. Vasquez, 794 F. Supp. 957, 989
(C.D. Calif. 1992), aff'd, 59 F.3d 815 (9th Cir. 1995).5
Alternatively, as the record set out above shows, the state court did
reconsider Petitioner’s sentencing in light of the alleged new evidence.
The state court did not find that the evidence was not a mitigating factor,
rather, the court accorded it very little weight. A sentencer is not required
to find the proffered evidence mitigating, nor must the sentencer accord the
evidence the weight a defendant believes is appropriate. Eddings _v.
Oklahoma, 45
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