JAIME DEAN CHARBONEAU, AKA Jaimi Dean Charboneau v. TYRELL DAVIS, acting in his official capacity as Warden of the Idaho State Correctional Institution
No. 20-35875
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 4, 2023
D.C. No. 1:17-cv-00364-DCN
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Argued and Submitted November 7, 2022
Seattle, Washington
Filed December 4, 2023
Before: Sandra S. Ikuta and Daniel P. Collins, Circuit Judges, and Sidney A. Fitzwater,* District Judge.
Opinion by Judge Collins
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of Jaime Dean Charboneau’s second federal habeas corpus petition seeking to set aside his Idaho conviction for the 1984 shooting death of his ex-wife Marilyn Arbaugh after a trial that included inculpatory testimony from Marilyn’s daughters Tira and Tiffnie.
In the second federal habeas petition, Charboneau alleged that Idaho officials violated their obligations under Brady v. Maryland, 373 U.S. 83 (1963), by encouraging Tira to provide false statements and testimony regarding her mother’s death and to dispose of potentially exculpatory evidence. In support of these allegations, Charboneau relied on a letter written by Tira in 1989, four years after Charboneau’s 1985 trial and nine years before Tira’s death in 1998. According to Charboneau, the contents of that letter from Tira support his contentions that Tiffnie also fired shots at Marilyn and that, as a result, there is reasonable doubt as to whether Charboneau caused Marilyn’s death and as to whether he intended to kill Marilyn.
In order for Charboneau’s Brady claim to be considered by a federal court on the merits, he faced the threshold requirements that Congress has imposed on the consideration of any “second or successive” federal habeas petition. Under
Like the district court, the panel found it unnecessary to address the diligence issue, because the panel concluded that the new materials, viewed in light of the evidence as a whole, do not suffice to make the showing of actual innocence required by
The applicable standard for showing actual innocence set forth in
The panel addressed several issues about how that standard is to be applied.
First, the panel held that the statutory command to view the facts underlying the claim in light of the evidence as a whole requires the court to consider the same scope of evidence as described under the test set forth in Schlup v. Delo, 513 U.S. 298 (1995)—namely, “all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.”
Second, the panel held that a habeas court remains free, after taking the proffered “facts” underlying the actual innocence claim as “proven,” as required by
Third, the panel concluded that a presumption of correctness attaches under
Applying those standards to Charboneau’s claimed showing that he is actually innocent of first-degree murder, and presuming that Tira did in fact author the letter, the panel concluded that Charboneau did not show by clear and convincing evidence that the statements recounted in Tira’s letter, considered in light of all the evidence, suffice to show that no reasonable factfinder would have convicted him of first-degree murder. Accordingly, Charboneau failed to meet the threshold requirement of
COUNSEL
James K. Ball, Jr. (argued), Manweiler Breen Ball & Davis PLLC, Boise, Idaho, for Plaintiff-Appellant.
L. LaMont Anderson (argued), Deputy Attorney General, Capital Litigation Unit Chief, Criminal Law Division; Lawrence G. Wasden, Idaho Attorney General; Idaho Attorney General’s Office, Boise, Idaho; for Defendant-Appellee.
OPINION
COLLINS, Circuit Judge:
Petitioner-Appellant Jaime1 Dean Charboneau was convicted in Idaho state court of the 1984 shooting murder of his ex-wife Marilyn Arbaugh after a trial that included inculpatory testimony from Marilyn’s daughters Tira and Tiffnie.2 Although Charboneau’s death sentence was vacated on appeal,3 his conviction was affirmed, and his efforts to obtain post-conviction relief have been thus far unsuccessful. The appeal before us arises from Charboneau’s second federal habeas petition, in which he alleges that Idaho officials violated their obligations under Brady v. Maryland, 373 U.S. 83 (1963), by encouraging Tira to provide false statements and testimony regarding her mother’s death and to dispose of potentially exculpatory evidence. In support of these allegations, Charboneau relies on a letter written by Tira in 1989, four years after Charboneau’s 1985 trial and nine years before Tira’s death in 1998. According to Charboneau, the contents of that letter from Tira support his contentions that Tiffnie also fired shots at Marilyn and that, as a result, there is reasonable doubt as
to whether Charboneau caused Marilyn’s death and as to whether he intended to kill Marilyn.
Charboneau concedes that, in order for his Brady claim to be considered by a federal court on the merits, he must first meet the threshold requirements that Congress has imposed on the consideration of any “second or successive” federal habeas petition. See
I
A
Charboneau and Marilyn “were married in June 1983,” after living together for
Eight days after their divorce became final, Charboneau “went to the cafe where Marilyn worked,” and “[t]hey left in Marilyn’s car.” Charboneau, 774 P.2d at 303. The following day, “Marilyn reported to the police that [Charboneau] had kidnapped and raped her and had stolen her car.” Id. As a result, Charboneau was charged in Jerome County, Idaho with kidnapping and grand theft on June 25, 1984. Id. Three days later, Charboneau bought a .22-caliber Remington rifle from a hardware store. Id.
On July 1, 1984, Marilyn was killed by multiple gunshot wounds outside her home on a ranch near Jerome, Idaho.4 At around 11:00 AM, “Marilyn went out to check some horses in a corral near her home.” Charboneau, 774 P.2d at 303. Soon after, Tiffnie (who was then 16 years old) “heard shots outside,” retrieved Marilyn’s .22-caliber Ruger pistol, and “went to see what had happened.” Id. She discovered Marilyn “sitting on the ground in the barn with blood on her.” Id. Charboneau was standing nearby, “with a .22 caliber rifle pointed at Marilyn,” who was still alive. Id.
Tiffnie left the scene and, at 11:38 AM, called the police and informed them that Charboneau had shot Marilyn. Charboneau, 774 P.2d at 303. Tiffnie told her 14-year-old sister Tira what had happened, and “they both got dressed.” Id. After hearing additional shots, they “ran outside where they hid behind a sheep wagon and called to their mother.” Id. Tiffnie still “had her mother’s .22 caliber pistol with her, and it accidentally discharged behind her.” Id. She went back to the house, “hid the gun, returned to the sheep wagon, and then ran to the barn,” with “Tira follow[ing] close
behind.” Id. At this point, “Marilyn was lying on her back with her arms over her head.” Id. “The girls ran back” to the house “to call for an ambulance,” and at 11:42 AM, Tira called the police and told them to send an ambulance because “her mother was dying.” Id. When police arrived, they “found Marilyn’s body in the barn and located [Charboneau] in a field near the barn with a .22 caliber rifle lying nearby.” Id. Charboneau “was arrested and charged with first degree murder.” Id. “At the time of his arrest, [Charboneau] acknowledged that he had shot Marilyn, although he stated that he did so because she was going to shoot him.” Id.
Forensic evidence introduced at trial showed that Marilyn had been shot 14 times or more. Charboneau v. State, 395 P.3d 379, 392 (Idaho 2017).5 She died of multiple “gunshot wounds to the chest,” and “she had not been shot in the head.” Id. at 386–87. According to the Idaho Supreme Court, all but one of the seven bullet fragments that were recovered from Marilyn’s body were identified as having
fired from the Ruger pistol that Tiffnie had accidentally discharged behind the sheep wagon. Id. at 387.6
In various statements, and in his testimony at a pretrial hearing on his motion to dismiss the murder charge against him, Charboneau provided a different account of the events of July 1, 1984. According to Charboneau, he had bought the .22-caliber Remington rifle as a graduation gift for Tira. Charboneau, 395 P.3d at 384. He claimed that “he and Marilyn had reconciled and were going to live together again, but that she wanted him to stay in the barn until she broke the news to her daughters.” Charboneau, 774 P.2d at 303. The Idaho Supreme Court described his testimony at the hearing on the motion to dismiss as follows:
[Charboneau] testified that when Marilyn came to the barn that morning she picked up the .22 caliber rifle and took it into the house to remove a scope sight that had come with it. He said that Marilyn told him that she was going to tell the girls that day that [he] was there and would let Tira take the gun to the gun range and let her sight it in.
[Charboneau] told the court that when Marilyn came back to the barn she had a handful of bullets and loaded the rifle. He said that after going out to the corrals to move some horses, he and Marilyn returned to the barn. He said he asked Marilyn where she
had been all night, and that she told him he thought she was sleeping with every guy in the valley. He stated that Marilyn picked up the rifle, pointed it at him, and told him that he was dead and that no other woman was going to have him. He said he heard a click, grabbed the barrel of the rifle and wrestled it away from her. [Charboneau] testified that Marilyn screamed for Tiffnie to bring Marilyn’s shotgun to her, and that when he got the rifle away from Marilyn, she turned around and ran. He said that he saw Tiffnie coming from the house, that he had the rifle at his hip, and that he thought Marilyn might be going to run around and get another gun. He said that he closed his eyes and that the gun went off several times. He opened his eyes and Marilyn was on her knees and bleeding. He said that Marilyn told Tiffnie to leave and that he told Tiffnie to call an ambulance. He testified that as he knelt beside Marilyn, Tiffnie came running toward them with a pistol saying, “I hate both of you guys.” He said that Tiffnie fired the pistol two or three times and that he ran out of the barn. He stated that when he realized that Tiffnie was not coming after him he eased back to the barn and heard Tiffnie talking to her mother. He testified that he saw Tiffnie
standing above her mother, heard the pistol go off, and saw Marilyn’s hair fly up.
Id. at 304–05. The motion to dismiss was denied, and Charboneau was subsequently convicted by a jury of first-degree murder. Id. at 305.
B
The current round of post-conviction litigation is based on a mysterious envelope of documents that Charboneau received on March 18, 2011 from a correctional officer, who discovered it “in one of the prison offices.” Charboneau asserts that the evidence contained in the envelope showed that the State withheld exculpatory evidence from him in contravention of Brady. Because of their importance to this appeal, we will describe those documents at some length.
1
The most important document in the envelope is a photocopy of a handwritten letter that was purportedly written by Tira and that bears the date of September 6, 1989.
This “Tira Letter” was addressed to Judge Philip Becker, who had presided over Charboneau’s murder trial. Charboneau, 395 P.3d at 381. The letter was accompanied by a photocopy of an envelope that was addressed to Judge Becker and was postmarked September 7, 1989. Id. at 381–82. The letter generally alleges that police and prosecutors pressured Tira to give false testimony regarding the circumstances of her mother’s death and that “some of the things in [her] statements to the police were not all true.” According to the letter, on the day of Marilyn’s murder, Tira gave a statement to an Officer Driesal, who told her “to only say certain things so that [her] statement wouldn’t be confusing” and who instructed her to say “certain things that were not really true.” The letter provided the following new version of what had occurred on the day of Marilyn’s murder, which was materially different in several respects from the testimony Tira gave at trial.
The letter states that, on the morning of July 1, 1984, Charboneau was at the house and told Tira “that the wrangle horse was waiting on [her],” which was a phrase he used to tell her when she overslept. Marilyn then entered Tira’s bedroom and gave her a “big box wrapped in decorative paper,” and inside the box was a new .22-caliber rifle. The letter, like Charboneau, claimed that the rifle was a graduation gift from Charboneau.
The letter stated that Marilyn then took a bath and got dressed and that she told Tiffnie and Tira “that she was going outside to help [Charboneau] with the horses.” Tira went to take a bath, and shortly thereafter she heard gunshots. Tiffnie then came running into the bathroom and screamed at Tira to get dressed. Tiffnie grabbed Tira’s new .22-caliber rifle and gave Tira one of Marilyn’s .22-caliber pistols, and the girls then went outside and hid behind the sheep wagon.
Tira could see Marilyn in an alleyway by a feed canal, but she did not see Charboneau and could only hear his voice. Tira heard Tiffnie shoot the rifle while they were behind the sheep wagon. Startled by the sound, Tira accidentally fired the pistol. Tiffnie then told Tira that Marilyn had taken a different .22-caliber rifle nicknamed “Calamity
The letter further stated that, a few days after Tira gave her statement to Officer Driesal, a different officer, Larry Webb, visited Tira at her grandfather’s house. Officer Webb told Tira that she had “forgotten to write down some important things in [her] statement.” He instructed Tira to add that she and Tiffnie “had heard 6 or 8 more shots” after they went back into the house. Tira signed another statement to that effect, “even though [she] knew it was not true.”
The letter also recounted an alleged incident in which Marc Haws, the “new prosecutor from Boise,” told Tira that she “need[ed] to get rid of [Marilyn’s] Calamity Jane rifle.” The letter stated that Tira did not know why Haws had asked her to do this, but that she, along with her grandfather and her uncle, buried Calamity Jane behind a potato cellar.
After the signature line, the letter contained a postscript stating that Tira was in Bruneau, Idaho “for a cowboy benefit [and] street dance” and that she would return to Jerome, Idaho “early next week.”
2
There were several additional documents in the mysterious envelope found at the state prison. One was a handwritten statement purportedly composed by former Jerome County deputy sheriff Orville Balzer. Charboneau, 395 P.3d at 388. The statement claims that Balzer saw Judge
Becker’s clerk Cheryl Watts open and read the Tira Letter and that Balzer then told Watts to “lose the letter in a ‘ghost’ file.” Id. Charboneau concedes that this “Balzer Statement” was forged, as expressly found by the Idaho state court in connection with Charboneau’s latest round of post-conviction challenges. Id. Specifically, the Idaho trial court determined that the true author of the statement was DeWayne Shedd, a library specialist for the Idaho Department of Corrections who worked at the state prison in Orofino from 1997 to 2007; Charboneau was housed there from approximately late 2001 until April 2011. Id. Shedd gave testimony in which he denied knowing who Tira, Balzer, or Watts were. Id. The Idaho Supreme Court held that, given Shedd’s lack of knowledge concerning the matters set forth in the Balzer Statement, someone must have assisted him in preparing it, and that “the only person who could have done so was Charboneau.” Id.
The envelope also contained a typed affidavit purportedly from former Jerome County Sheriff Larry Gold, who (like Tira) was already deceased at the time the envelope was found. Charboneau, 395 P.3d at 387. The statement, dated November 13, 2001, claimed that Sheriff Gold’s Chief Deputy had informed him that the clerk of court was in possession of a letter sent by Tira to “the presiding judge in Charboneau’s case,” and that the Chief Deputy was concerned that the clerk had asked for his help in destroying the letter. Id. The Idaho Supreme Court noted that the affidavit “was not sworn to before a notary public,” even though “Idaho did not authorize a certification or declaration under penalty of perjury in lieu of a statement sworn to before a notary public until July 1, 2013.” Id. at 387–88. The Court concluded that this meant that “[e]ither the document was actually prepared after July 1, 2013, when
Idaho law permitted such a declaration, or, while serving as sheriff of Jerome County, Mr. Gold never realized that Idaho law did not provide for a declaration under penalty of perjury.” Id. at 388.
Finally, the envelope contained several more documents. One was a note dated
C
Charboneau filed a state petition for post-conviction relief based on the materials in the newly discovered envelope. The trial court concluded that the Tira Letter had been written by Tira and that it had been “suppressed or withheld by the State, either willfully or inadvertently, from at least 2003 on, and [that] prejudice to Charboneau ha[d] ensued.” Charboneau, 395 P.3d at 390. The trial court
therefore granted Charboneau’s petition and ordered a new trial. Id. at 389.
In May 2017, the Idaho Supreme Court reversed. The court held, inter alia, that, even if genuine, the Tira Letter was not material Brady evidence because there was not a “reasonable probability that [Charboneau’s] conviction or sentence would have been different had the Tira Letter been disclosed.” Charboneau, 395 P.3d at 391. The court noted, inter alia, that the claims made in the Tira Letter were inconsistent in several respects with Charboneau’s testimony at the hearing on his motion to dismiss and that “the forensic evidence contradicts both of their versions.”7 Id. at 382; see also id. at 392. The state high court also noted that some of the statements in the Tira Letter were contradicted by testimony that had been offered by Tira’s husband in the state post-conviction proceedings as well as with other evidence about the timing of events recounted in the letter. As the Idaho Supreme Court explained:
The letter stated, “I am in Bruneau Idaho for a cowboy benefit + street dance where the Pinto Bennetts band is providing the music” and “I will be back in Jerome early next week.” The street dance did not occur until ten days after the date of the letter. Tira’s husband testified that in September of 1989 he and Tira were living on a ranch in Wells, Nevada; that he was working on the ranch and she usually worked with him; that they did not have a car; that he had never been to a street dance in Bruneau; that during their
marriage he and Tira had never spent the night apart except for one week during Christmas of 1989; that she signed the letter with her maiden name, which she had not used as long as he had known her; and that by September 1989 they had a child.
In September 2017, Charboneau submitted a petition for a writ of habeas corpus in the United States District Court for the District of Idaho, arguing that the State had violated Brady by failing to disclose the information summarized in the Tira Letter “at his original trial.” Because
granted Charboneau’s application and authorized the filing of this petition. See Ezell v. United States, 778 F.3d 762, 764–65 (9th Cir. 2015) (holding that
As the district court correctly recognized, this court’s earlier determination that Charboneau had made a sufficient prima facie showing concerning the requirements of
Accordingly, the district court considered, in light of the record as a whole, whether Charboneau’s latest federal petition met the applicable requirements of
We granted Charboneau’s request for a certificate of appealability, limited to two issues: (1) “whether [Charboneau’s] petition meets the standards of
II
Charboneau does not dispute that his current federal habeas petition is a “second or successive” petition within the meaning of
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The district court assumed arguendo that the “factual predicate” of Charboneau’s Brady claim—viz., the information contained in the Tira Letter and other materials in the envelope found in the prison—could not have been diligently discovered earlier, but the court concluded that the requisite showing as to innocence had not been made. Like the district court, we find it unnecessary to address the diligence issue, because we conclude that the new materials presented by Charboneau, “viewed in light of the evidence as a whole,” do not suffice to make the showing of actual innocence required by
A
The standard for showing actual innocence set forth in
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court reaffirmed its prior holdings that a federal court could reach the merits of claims presented in a second or successive habeas petition only if the petitioner could either (1) “establish cause and prejudice sufficient to excuse his failure to present his evidence in support of his first federal petition” or (2) show that his case fell “within the narrow class of cases implicating a fundamental miscarriage of justice.” Id. at 314-15 (simplified). “To ensure that the fundamental miscarriage of justice exception would remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same time ensuring that the exception would
Although the Supreme Court‘s cases had variously articulated the showing of actual innocence required to invoke this miscarriage-of-justice exception, the Schlup Court endorsed the formulation used in Murray v. Carrier, 477 U.S. 478 (1986), which had stated that a procedurally defaulted claim could be considered on the merits “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 321 (quoting Carrier, 477 U.S. at 496 (emphasis added)); see also id. at 326-27. Schlup noted that, in Sawyer v. Whitley, 505 U.S. 333 (1992), the Court had adopted a “more exacting” standard for showing “actual innocence” in the context of a claim that, but for constitutional error, a petitioner would have been ineligible for the death penalty (as opposed to being innocent of the underlying crime). Schlup, 513 U.S. at 323 (citing Sawyer, 505 U.S. at 336). In this latter context, Sawyer “held that a habeas petitioner ‘must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.‘” Id. (quoting Sawyer, 505 U.S. at 336 (emphasis added by Schlup)). Schlup concluded that Sawyer‘s heightened standard was limited to claims that a petitioner‘s “sentence is too severe” and that the “correspondingly greater injustice that is implicated by a claim of actual innocence” of the underlying offense “requires application of the Carrier standard.” Id. at 325-26 (emphasis added). Accordingly, Schlup held that the merits of a second or successive petition could be considered, under the miscarriage-of-justice exception, if the petitioner “show[s] that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.‘” Id. at 327 (quoting Carrier, 477 U.S. at 496). “To establish the requisite probability, 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.” Id.
In enacting AEDPA, Congress took direct aim at Schlup‘s standard for allowing merits consideration of second or successive petitions. Congress abrogated Schlup‘s core holding by expressly adopting the Sawyer “clear and convincing evidence” standard that Schlup had rejected. See
The AEDPA requirements for a second or successive application are stricter than the Schlup standard in two ways. First,
§ 2244(b)(2)(B)(i) requires that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.” There is no requirement under Schlup that the factual claim was not discoverable through the exercise of due diligence. Second,§ 2244(b)(2)(B)(ii) requires that “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of theunderlying offense.” (Emphasis added.) Schlup requires only that an applicant show that it is “more likely than not” that no reasonable fact-finder would have found him guilty.
Given that “the Schlup standard” is itself “demanding and permits review only in the extraordinary case,” House v. Bell, 547 U.S. 518, 538 (2006) (citations and internal quotation marks omitted), it is unsurprising that
B
However, before applying AEDPA‘s stricter actual innocence standard to the specific facts of this case, we must address several further issues about how that standard is to be applied.
1
First, the parties disagree as to the scope of the evidence that we should consider in applying
In Case, the Tenth Circuit held that, in the context of a second or successive petition alleging a Brady violation, the court could only consider the exculpatory evidence allegedly improperly withheld and the evidence presented at trial—meaning that the court could not consider additional exculpatory evidence, such as “subsequently produced DNA evidence” and “post-trial witness recantations” that were unconnected to any alleged constitutional error. 731 F.3d at 1038-39. Case based this holding on two aspects of the language in
We agree with Case insofar as it held that the statutory language unambiguously requires a nexus between the new factual predicate underlying the constitutional claim and the showing of actual innocence. As we have explained, the ultimate question under the statute is whether, “but for constitutional error,” the “facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence” that no reasonable factfinder would have convicted.
But it does not follow from this premise that, in assessing whether this statutory nexus requirement has been satisfied, the federal habeas court should close its eyes to any other evidence in the record. On that specific question, the statutory language points in the opposite direction. It says that, in determining whether “the facts underlying the claim” have the required connection to a showing of actual innocence, the court must view those facts “in light of the evidence as a whole.”
Congress‘s failure to add any such limitation is all the more significant because the Schlup standard that Congress consciously amended in
The Carrier standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner‘s showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on “actual innocence” allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial. Indeed, with respect to this aspect of the Carrier standard, we believe that Judge Friendly‘s description of the inquiry is appropriate: The habeas court must make its determination concerning the petitioner‘s innocence “in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.”
513 U.S. at 327-28 (emphasis added) (citation omitted); see also House, 547 U.S. at 538 (”Schlup makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” (citations and internal quotation marks omitted)); Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (same).
Although, as we have noted, Congress included language in
Moreover, adopting the Tenth Circuit‘s contrary construction of the statute would thwart the objectives of
2
Second, we address what the statute means when it says that, in assessing the petitioner‘s showing of actual innocence, the court must assume that “the facts underlying the claim” have been “proven.”
It is clear from the statutory context that the “facts” being referenced are the specific evidentiary facts underlying the claim (e.g., that a particular witness has given statements recanting prior testimony or that a particular forensic test produced specific results under specified conditions) and not the ultimate “facts” (e.g., that the petitioner did not commit the criminal acts). In particular, the statute‘s focus on evidentiary facts is clear from its express instruction to consider “the facts underlying the claim . . . in light of the evidence as a whole.”
Moreover, Schlup similarly described the actual innocence inquiry as involving a weighing of competing items of evidence, and there is no indication in the language of
One final issue concerns the extent to which, in evaluating the foundational reliability of the petitioner‘s new evidence, a federal habeas court applying
III
Having set forth at length what
As an initial matter, we note that only the “Tira Letter” provides any potential factual support for Charboneau‘s claim of actual innocence. The remaining documents—the “Balzer Statement” allegedly prepared by a deputy sheriff; the “Shedd Note” prepared by Shedd; the “Shedd Emails” that purportedly recount email communications between Shedd and a supervisor; and the “Gold Statement,” an affidavit assertedly signed by a since-deceased sheriff—bear only on Charboneau‘s claim that the allegedly exculpatory Tira Letter was suppressed by state officials.8 Accordingly, we focus on the contents of the Tira Letter.
The state trial court specifically found that the Tira Letter was a copy of a lost original that was actually handwritten by Tira. The Idaho Supreme Court did not directly reject that finding, but it pointedly declined to accept the contents of that letter as persuasive or reliable. On the contrary, the state high court noted at length that the contents of the letter were contradicted by many other items of evidence
For several reasons, we conclude that Charboneau has not shown by clear and convincing evidence that the statements recounted in the Tira Letter, considered in light of all the evidence, suffice to show that no reasonable factfinder would have convicted him of first-degree murder.
First, a reasonable factfinder could readily conclude that the veracity and reliability of Tira‘s assertions in the letter are undermined by her husband‘s testimony in the state post-conviction proceedings. Tira claimed in the letter, which was dated September 6, 1989 and postmarked September 7, 1989, that she was in Bruneau, Idaho for a street dance and would return to Jerome, Idaho “early next week.” Charboneau, 395 P.3d at 382. But that would have been impossible, given that the referenced street dance did not occur until ten days later. Id. Moreover, “Tira‘s husband testified that in September of 1989 he and Tira were living on a ranch in Wells, Nevada,” and not in Jerome, Idaho. Id. Furthermore, he testified that he never went to a street dance in Bruneau and that he did not spend a night away from Tira during September 1989. Id. He also found it odd that Tira had “signed the letter with her maiden name, which she had not used as long as he had known her.” Id. Even though we are bound by the state trial court‘s finding that Tira did write the letter, these contradictions raise serious questions about her overall credibility and her state of mind at the time she wrote the letter. A reasonable factfinder could rely on these discrepancies as a basis for rejecting the substantive allegations in the letter. See Modern Mills, Inc. v. Havens, 739 P.2d 400, 404 (Idaho Ct. App. 1987) (noting that “the fact-finder may reject the additional, noncorroborated testimony of an impeached witness” (emphasis omitted)).
Second, as the Idaho Supreme Court correctly noted, there are numerous inconsistencies between the Tira Letter and Charboneau‘s own testimony at the pretrial hearing. The Tira Letter claims that, on the morning of the murder on Sunday, July 1, 1984, Charboneau was in Marilyn‘s house and was present when Marilyn gave Tira a new .22-caliber rifle as a graduation present. Charboneau, 395 P.3d at 383, 386. By contrast, Charboneau testified that he had been staying in the “tack room” of the barn since Thursday with the knowledge of Marilyn but not of her daughters and that Marilyn did not leave the rifle with Tira on Sunday morning. Id. at 384-86. The Idaho Supreme Court also noted that “Tira wrote that Tiffnie took Tira‘s .22 rifle, gave her their mother‘s .22 pistol, and [that] they
Third, the 1989 Tira Letter differed in numerous respects from Tira‘s testimony at the 1985 trial. As we have observed in applying the Schlup standard, “[w]itness recantations are generally viewed with suspicion.” Gable v. Williams, 49 F.4th 1315, 1323 (9th Cir. 2022). “To measure a recantation‘s likely effect on a juror,” we may consider its “context” and “timing,” as well as the surrounding “circumstances.” Id. At trial, Tira testified that Tiffnie took a pistol, not a rifle, and she did not say anything about Tira herself having a firearm. Charboneau, 395 P.3d at 382-83. Moreover, she testified that the single shot Tiffnie fired by the sheep wagon occurred when the pistol went off while Tiffnie was holding it while “[h]er hands were behind her back.” Id. at 383 (emphasis added). By contrast, in the letter, Tira stated that she heard “Tiffnie shoot the rifle” and that the sound so startled her that Tira then “accidentally” fired the “pistol.” Id. at 384 (emphasis added). Considering the other potential errors in the Tira Letter noted earlier, a factfinder would have reasonable grounds to credit Tira‘s trial testimony over her unsworn, years-after-the-fact partial recantation.
Moreover, these various conflicts between the Tira Letter and the testimony of Tira‘s husband, Charboneau, and Tira herself must also be considered in light of the other evidence of guilt in the record. Gable, 49 F.4th at 1323. On June 25, 1984—less than a week before the murder—Charboneau was charged with having kidnapped Marilyn shortly after their divorce was finalized. Charboneau, 395 P.3d at 381 (citation omitted). Three days later, Charboneau bought a .22 caliber Remington rifle “from a hardware store in Gooding, Idaho.” Id.; see also id. at 384. When sheriff‘s deputies arrived after the murder, they found Charboneau “in a field near the barn with a .22 caliber rifle lying nearby.” Id. (citation omitted). Moreover, as the Idaho Supreme Court noted in summarizing Charboneau‘s testimony at the pretrial hearing:
Charboneau admitted shooting at Marilyn with the Remington rifle while she was unarmed and running away from him; he admitted that he wounded her after which she was sitting on the ground; and he admitted that he had sole control of the Remington rifle from the time that he shot at her to the time that he threw it into the wheat field.
Id. at 392 (emphasis added).
As to the seven bullet fragments found in Marilyn‘s body, ballistics evidence at trial was able to identify all seven as being from Remington-brand bullets, and five of them were specifically identified as having been fired from the Remington rifle found near Charboneau in the field. Although the remaining two could not be conclusively identified as having come from that particular weapon, the ballistics expert was able to definitively exclude the Ruger pistol as the weapon that fired one of those two bullets.9 See supra at 8-9 & n.6. Further,
Finally, we note that the other materials found in the envelope containing the Tira Letter provide, if anything, additional corroboration of Charboneau‘s consciousness of guilt. The state trial court found, and the Idaho Supreme Court agreed, that the “Balzer Statement” was a forgery. See Charboneau, 395 P.3d at 388. The trial court found that Shedd, a library specialist at the state prison, forged the letter; that he had assistance from another person in doing so; but that “no evidence points to Charboneau, or anyone sympathetic to him, as the culprit.” The Idaho Supreme Court rejected this latter finding, instead holding that “the only person” who could have helped Shedd forge the statement “was Charboneau.” Id. at 388. The state trial court also held that Charboneau had failed to establish that the “Shedd Emails” were genuine. The court found that “the evidence points” to the “inference” that these emails “were prepared or doctored by someone with access” to the prison email system and computers, but that there was “no evidence” suggesting that they were “prepared by anyone friendly to Charboneau.” Once again, the Idaho Supreme Court rejected the last part of this finding, instead stating that
“Shedd had access to the e-mail system, and he forged the Balzer Statement to benefit Charboneau.” Charboneau, 395 P.3d at 389 (emphasis added). For the reasons we explained earlier, a presumption of correctness attaches to the resulting specific findings of the state courts that (1) Charboneau assisted Shedd in preparing a forged document in support of Charboneau‘s claim that the Tira Letter was suppressed; and (2) Shedd could have doctored the “Shedd Emails” to benefit Charboneau. Moreover, in light of Charboneau‘s involvement in the former forgery by Shedd, a reasonable trier could infer that Charboneau was also involved in Shedd‘s latter doctoring of evidence. And in deciding how much probative weight to give to the Tira Letter in light of all of the other evidence, a reasonable factfinder could readily conclude that Charboneau‘s participation with Shedd in the creation of false evidence is an additional fact that suggests a consciousness of guilt on Charboneau‘s part. See State v. Ehrlick, 354 P.3d 462, 479 (Idaho 2015) (“Evidence which tends to show that the accused has attempted to fabricate or procure false evidence is admissible as showing a consciousness of guilt.” (simplified)).
Taking all of this evidence together, we conclude that Charboneau has failed to show that the statements recounted in the Tira Letter “would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty” of first-degree murder.
AFFIRMED.