KEITH BERNARD SMITH, Petitioner-Appellant, v. NOAH NAGY, Warden, Respondent-Appellee.
No. 18-1751
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 15, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0183p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:11-cv-10261 — Arthur J. Tarnow, District Judge.
Argued: April 29, 2020
Decided and Filed: June 15, 2020
Before: COLE, Chief Judge; SILER and CLAY, Circuit Judges.
COUNSEL
ARGUED: Wesley R. Abrams, VORYS, SATER, SEYMOUR AND PEASE LLP, Cincinnati, Ohio, for Appellant. Daniel Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Wesley R. Abrams, Nathan L. Colvin, VORYS, SATER, SEYMOUR AND PEASE LLP, Cincinnati, Ohio, for Appellant. Daniel Ping, John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
COLE, Chief Judge. Keith Bernard Smith, a Michigan prisoner, appeals the denial of his petition for a writ of habeas corpus under
I.
On the morning of February 15, 2008, Detroit police discovered Annette Ralston, a 58-year-old woman, dead in the bedroom of her home. Ralston had suffered several stab wounds to the head and groin area, slash wounds to the face, and blunt-force wounds to the back of the head. A severed carotid artery was likely the immediate cause of death. Ralston also exhibited multiple “defensive-type” cuts and bruises on her hands and wrists, and she was clutching long brown hair, which was never matched to any particular person. Blood was found throughout Ralston‘s house.
Four days after the discovery of Ralston‘s body, police arrested Keith Smith and charged him with three crimes in connection with Ralston‘s death: first-degree felony murder, first-degree premeditated murder, and assault with intent to commit armed robbery. At the time that the police arrested Smith, they also seized Smith‘s van and other personal belongings, including a pair of eyeglasses. The van and eyeglasses were processed for blood evidence, but none was recovered. No knives or other weapons were recovered from Smith. Overall, there was no physical evidence linking Smith to Ralston‘s death.
At Smith‘s trial, two of Smith‘s acquaintances—Shayne Dennis and Latoya Evans—testified that Smith had come over to their house two days after the discovery of Ralston‘s body. At some point during the conversation, Smith admitted that he had “done something very bad” and proceeded to confess to killing a woman “at a safe house.” (R. 12-4, PageID 428–29.) Smith conveyed that he had intended to rob the safe house. To that end, he dropped off the victim‘s son somewhere else and went back to the house with the victim, where he ended up killing her while trying to force her to open a safe located in the bedroom. Evans recalled that Smith had identified
Lawanda Baytops, Ralston‘s housemate, also testified at Smith‘s trial. Baytops told the jury about a “big” jewelry box that Ralston kept in her bedroom, which was “shaped like a safe” but did not have a lock. (R. 12-3, PageID 325, 350.) Baytops remembered seeing the jewelry box still in Ralston‘s bedroom on the morning Ralston‘s body was discovered. Baytops also recalled that Smith was at the house with Ralston and Ralston‘s son on the evening before Ralston‘s body was discovered. Ralston‘s son, James White, confirmed that Smith was at the house that evening and that, later, Smith drove White to his foster home.
The jury convicted Smith of first-degree felony murder and assault with intent to commit armed robbery but acquitted him of first-degree premeditated murder. Before sentencing, however, one juror approached defense counsel and reported that he and other jurors had changed their vote from “not guilty” to “guilty” based on a belief that Smith would receive a relatively light sentence for felony murder. Smith moved for a new trial or an evidentiary hearing, but the state trial judge declined to grant either. The trial judge then sentenced Smith to the mandatory sentence of life imprisonment without possibility of parole for the felony-murder conviction, see
On January 13, 2011, Smith, acting pro se, filed a petition for a writ of habeas corpus under
Rather than appealing the state trial court‘s decision, Smith filed a motion for a
Having exhausted his state remedies, Smith returned to the district court and amended his habeas petition in December 2017 to add new claims, including one based on the affidavit of Robert Evans. On June 12, 2018, the district court denied the amended petition. Like the Michigan Court of Appeals, the district court rejected Smith‘s challenges to the denial of an evidentiary hearing and to the sufficiency of the evidence. The district court construed Smith‘s claim based on Robert Evans‘s affidavit to be an actual innocence claim and rejected it as well, holding that the affidavit by itself was not sufficient to support a freestanding actual innocence claim. Although the district court denied the amended petition, it granted a certificate of appealability on all claims. This timely appeal followed.
In this court, Smith filed a pro se brief and moved for appointment of counsel. The warden responded. We granted Smith‘s motion for appointment of counsel, and a second round of briefing followed.
II.
In habeas proceedings, we review de novo the district court‘s legal conclusions and mixed determinations of law and fact. Bennett v. Brewer, 940 F.3d 279, 286 (6th Cir. 2019). We typically review the district court‘s factual findings for clear error, but when the district court bases its factual determinations only on trial transcripts and court records—making no credibility determination or other apparent finding of fact on its own—we review the district court‘s factual conclusions de novo. Id.; see also Ramonez v. Berghuis, 490 F.3d 482, 486 (6th Cir. 2007); Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006).
That said, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) constrains our review of state-court decisions in habeas cases. Under AEDPA, a claim that was “adjudicated on the merits” in the state court may not be a basis for habeas relief unless its adjudication:
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The “contrary to” and “unreasonable application” clauses of
The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410. Subsequent Supreme Court decisions have interpreted this directive to mean that an unreasonable application “must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). AEDPA “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Nevertheless, the state court‘s error must be “well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
III.
Smith raises three claims on appeal. First, he contends that the state court acted contrary to or unreasonably applied clearly established federal law by denying him an evidentiary hearing to determine whether the jury improperly relied on certain prejudicial information in rendering its verdict. Second, he contends that the state court unreasonably applied clearly established federal law in concluding that there was sufficient evidence to convict him of felony murder and assault. Third, he contends that the state and district courts erred in refusing to consider the affidavit of Robert Evans. We address each claim in turn.
A.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial “by an impartial jury.”
Under the Supreme Court‘s decision in Remmer v. United States, it is clearly established that “a trial court, faced with an indication of jury bias, must conduct ‘a hearing with all interested parties permitted to participate.‘” United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)); see also Smith v. Phillips, 455 U.S. 209, 215 (1982) (“This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.“). Although a defendant “must do more than simply raise the possibility of bias” to be entitled to a Remmer hearing, “a colorable claim of extraneous influence” is sufficient. Owens, 426 F.3d at 805 (quoting United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999)). Once the defendant raises a colorable claim of extraneous influence, the trial court “must hold a Remmer hearing ‘to afford the defendant an opportunity to establish actual bias.‘” United States v. Lanier, 870 F.3d 546, 549 (6th Cir. 2017) (quoting Davis, 177 F.3d at 557).
The requirements of Remmer exist alongside the no-impeachment rule embodied in
The no-impeachment rule is grounded in “[s]ubstantial policy considerations,” such as encouraging “full and frank discussion in the jury room,” ensuring the finality of verdicts, and, overall, preserving the integrity of the jury system. See Tanner v. United States, 483 U.S. 107, 119–21 (1987). Accordingly, the Supreme Court has noted that the no-impeachment rule “harmonize[s] with,” rather than detracts from, the holding of Remmer, which also is based on the principle that “the integrity of jury proceedings must not be jeopardized by unauthorized invasions.” Id. at 120 (quoting Remmer, 347 U.S. at 229).
We similarly have observed that the no-impeachment rule, including its exceptions, seeks “to balance the preservation of the integrity of the jury system and the rights of the defendant.” United States v. Logan, 250 F.3d 350, 380 (6th Cir. 2001), superseded on other grounds by statute as recognized in McAuliffe v. United States, 514 F. App‘x 542, 549 (6th Cir. 2013). This balance means that “if [a] case involves an extraneous or external influence on the jury, then a post-verdict interrogation of jurors is permitted in order to adequately protect the defendant‘s constitutional rights.” Id. But if the case instead involves an “internal influence,” the constitution does not require post-verdict interrogation of jurors. Id.; see also Garcia v. Andrews, 488 F.3d 370, 375 (6th Cir. 2007) (“[A]n evidentiary hearing delving into allegations
The distinction between external and internal influences is therefore critical. In Tanner, the Supreme Court decided that allegations of jurors being intoxicated during the trial related to an internal influence. Tanner, 483 U.S. at 116–26. Focusing on “the nature of the allegation” rather than the physical location of the jurors at the time the alleged misconduct occurred, id. at 117, the Tanner Court distinguished cases where a bribe was offered to a juror, id. (citing Remmer, 347 U.S. at 228–30); where a court bailiff made comments about the defendant in the presence of the jury, id. (citing Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam)); where a juror submitted an employment application to the prosecutor‘s office during the trial, id. (citing Phillips, 455 U.S. at 209); and where jurors brought newspaper articles about the case into the jury room, id. at 118 (citing United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972)). Instead, the Court likened the circumstances in Tanner to a claim that a juror had a psychological disorder, id. at 118–19 (discussing United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974)); or a claim that a juror did not understand English, id. at 119 (citing United States v. Pellegrini, 441 F. Supp. 1367 (E.D. Pa. 1977), aff‘d without opinion, 586 F.2d 836 (3d Cir. 1978) (table)). More recently, the Supreme Court unanimously decided that alleged bias based on a juror‘s own personal experiences also constituted an internal influence. Warger, 574 U.S. at 51–52. “‘External’ matters include publicity and information related specifically to the case the jurors are meant to decide,” the Court explained, “while ‘internal’ matters include the general body of experiences that jurors are understood to bring with them to the jury room.” Id. at 51.
Likewise, we have explained that an external influence “must either relate to the case that the jurors are deciding or be physically brought to the jury room or disseminated to the jury.” Thompson v. Parker, 867 F.3d 641, 648 (6th Cir. 2017). Considerations based on jurors’ “general knowledge” or “their own wisdom, experience, and common sense” do not constitute external influences. Id. at 647–48 (internal quotation marks and citation omitted). Thus, we found an external influence where jurors looked up the defendant‘s Facebook profile and performed a Google search for information relating to issues in the case. Ewing v. Horton, 914 F.3d 1027, 1029–30 (6th Cir. 2019). But we found no external influence where a jury decided to sentence a defendant to death after discussing a news account of a different defendant who had committed murder after being paroled. Thompson, 867 F.3d at 646–49.
Smith first argues that the Michigan Court of Appeals applied the wrong legal standard, and thus, its decision is “contrary to” clearly established federal law. In particular, Smith argues that the state court focused on whether he was entitled to a new trial, rather than on whether he was entitled to a Remmer hearing at which he would have the opportunity to show he was entitled to a new trial. It is true that the standard for obtaining a new trial is distinct from the standard for obtaining a Remmer hearing: a defendant must show actual prejudice to be entitled to a new trial, whereas the defendant only has to establish some likelihood of prejudice to be entitled to a Remmer hearing. Phillips, 455 U.S. at 217–18, 221; see also, e.g., Ewing, 914 F.3d at 1030–31; United States v. Harris, 881 F.3d 945, 953–54 (6th Cir. 2018); Davis, 177 F.3d at 557. Thus, if the Michigan Court of Appeals had held that Smith was not entitled to a Remmer hearing simply because he had failed to establish actual prejudice, such a decision would have been contrary to clearly established federal law.
The crux of the Michigan Court of Appeals‘s decision, however, is not that Smith failed to establish actual prejudice but rather that he failed to allege that the jury‘s information on possible punishment came from a source outside of the jury room. See Smith, 2009 WL 3837414, at *2. In holding that the information on possible punishment needed to have involved an outside source, the Michigan Court of Appeals rejected the view that consideration of possible punishment by the jury is necessarily extraneous. See id.
Smith argues that the Michigan Court of Appeals “misconstrued,” and thus unreasonably applied, federal law in concluding that the jury‘s consideration of punishment was not necessarily extraneous. He does not contend that there is a Supreme Court decision establishing that a jury‘s consideration of possible punishment is in itself extraneous or otherwise unconstitutional, but rather analogizes to decisions from this and other circuits applying Remmer, Tanner, and their progeny. These decisions are all distinguishable.
Second, Smith points to United States v. Herndon, 156 F.3d 629 (6th Cir. 1998). In Herndon, also a case on direct appeal, we remanded for a Remmer hearing because one of the jurors allegedly had prior business dealings with the defendant. Id. at 636–38. We held that such a circumstance constituted an external influence because it “derived from specific knowledge about or a relationship with either the parties or their witnesses.” Id. at 636. Nothing indicates that any such knowledge or relationship exists here.
Third, Smith directs our attention to United States v. Harris, 881 F.3d 945, 952–54 (6th Cir. 2018), another case on direct appeal where we remanded for a Remmer hearing. In Harris, although some question remained as to whether actual prejudice existed, there was “credible evidence” that the live-in girlfriend of one of the jurors had discovered and viewed the defendant‘s LinkedIn profile, likely after searching for the defendant on Google. Id. at 953–54. Here, in contrast, there is nothing suggesting that the information the jury considered regarding punishment came from a similar external source.
For the same reason, the other cases to which Smith calls our attention are distinguishable. See Ewing, 914 F.3d at 1029–30 (jury allegedly discussed the defendant‘s Facebook profile and used Google to search for information related to the case); Oliver v. Quarterman, 541 F.3d 329, 339–40 (5th Cir. 2008) (jury allegedly consulted Bible passages in deciding whether to impose the death sentence); Doan v. Brigano, 237 F.3d 722, 735–36 (6th Cir. 2001) (juror allegedly conducted an experiment at home to test claims made during the defendant‘s testimony), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510, 534 (2003); United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (jury, in deciding whether to convict the defendant of conspiracy to distribute drugs, allegedly used a dictionary to look up the meaning of the words “distribution” and “pontificate“). None of the cases that Smith cites shows that the Michigan Court of Appeals unreasonably applied clearly established federal law.
Instead, we find the Fourth Circuit‘s decision in Fullwood v. Lee, 290 F.3d 663 (4th Cir. 2002), to be instructive. In that case, the defendant argued that the jury was improperly influenced in deciding whether to impose the death penalty because it allegedly became aware of several pieces of information: (1) the defendant had previously been sentenced to death by another jury, but the sentence had been reversed; (2) any decision it made would be appealed; and (3) if it handed down a life sentence, the defendant would be eligible for parole within 10 to 15 years. Id. at 682–83. The Fourth Circuit, on habeas review, concluded that the jury‘s awareness of the defendant‘s prior death sentence was necessarily
In this case, we find it conceivable that the jurors could have reached the mistaken conclusion that felony murder carries a relatively light sentence based simply upon preconceived notions or beliefs about the legal system. In other words, the jurors’ information about Smith‘s possible sentence reasonably falls within the realm of “general information that jurors bring with them into deliberations.” See id. at 682. Accordingly, it was not unreasonable for the Michigan Court of Appeals to conclude that the jury‘s consideration of punishment was not necessarily extraneous and that, absent a colorable allegation that the information came from some outside source, Smith was not entitled to a Remmer hearing.
Smith, though, makes one final argument. He suggests that he did, in fact, raise a colorable claim that the specific information the jury considered regarding punishment came from an outside source. He focuses on one particular statement that his trial counsel made to the trial judge at the argument on whether to grant an evidentiary hearing:
The case law is if it was internal consideration, we wouldn‘t even be here. It has to be something that is external to the jury, and their deliberations. It‘s not that they talked about something inside, [it‘s] that they had something from outside that was introduced.
(R. 12-6, PageID 612.) Based on this statement, Smith contends that his trial counsel raised a colorable claim that the information regarding possible punishment came from an outside source. But trial counsel‘s statements at other points in the argument suggest otherwise. Indeed, at the beginning of the argument, trial counsel plainly stated, “We would submit the extrinsic influence here was penalty that was discussed improperly by the jury.” (Id., PageID 609.) Thus, examining trial counsel‘s argument as a whole, we find that it was not unreasonable for the Michigan Court of Appeals to conclude that Smith failed to allege an outside source and, therefore, failed to make a colorable claim of extraneous influence. We affirm the district court‘s denial of habeas relief with respect to Smith‘s claim of jury bias.
B.
Smith‘s next claim for relief is that his convictions for felony murder and assault rest on insufficient evidence. Specifically, he argues that there was insufficient evidence both to identify him as the perpetrator and to establish intent to commit a felony—in this case, larceny. The warden, as an initial matter, asserts that Smith did not exhaust part of this claim because he did not present to the state courts the specific argument that there was insufficient evidence of his intent to commit a larceny. Our disposition of Smith‘s claim, however, does not require us to decide this exhaustion issue. Therefore, we proceed directly to the merits. See
Additionally, where, as here, the state court adjudicated the claim on the merits, there is a second layer of deference mandated by AEDPA. That is, even if we were to conclude that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt, we “must still defer to the state appellate court‘s sufficiency determination as long as it is not unreasonable.” Id. (emphasis omitted).
The Michigan Court of Appeals determined that, viewing the evidence in the light most favorable to the prosecution, “a rational trier of fact could find that the essential elements of the crime were proven beyond reasonable doubt” in Smith‘s case. Smith, 2009 WL 3837414, at *4. The court reasoned that, as a general matter, “circumstantial evidence and the reasonable inferences it engenders are sufficient to support a conviction, provided the prosecution meets its burden of proof.” Id. It concluded that the circumstantial evidence in this case—namely, the testimony from Dennis and Evans—was sufficient to support Smith‘s convictions, and it declined to “second-guess” the jury‘s determination that Dennis and Evans were credible. Id.
Smith argues that the testimony from Dennis and Evans, even viewed in the light most favorable to the prosecution, could not engender a reasonable inference that Smith killed Ralston with the intent to commit a larceny. Smith gives several reasons: Ralston had no safe in her house and did not live at a drug safe house; she had no money; and nothing of value, including Ralston‘s jewelry box, was taken from the house.
These arguments, however, are reasons to reweigh the testimony of Dennis and Evans, not to conclude that such evidence is insufficient. According to Dennis and Evans, Smith confessed to killing a woman in her fifties while attempting to rob her house, and Ralston‘s son and housemate both confirmed that Smith was at the house on the evening before Ralston‘s body was discovered. Smith now provides reasons that the jury could have disbelieved or discounted Dennis‘s and Evans‘s testimony as inconsistent with other evidence in the record. But a court evaluating a claim of insufficient evidence is not at liberty to reweigh the evidence or reassess the credibility of witnesses. Brown, 567 F.3d at 205; see also Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (“[A]ttacks on witness credibility are simply challenges to the quality of the government‘s evidence and not to the sufficiency of the evidence.” (quoting United States v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984))). Given that the Michigan Court of Appeals had to resolve all conflicts in favor of the prosecution and accept the jury‘s determination
C.
Last, Smith claims that the state and district courts erred in refusing to consider the affidavit of Robert Evans.
1.
We start by clarifying what it is that Smith is claiming. Smith refers to his claim as one of “actual innocence” and cites to the Supreme Court‘s decision in Schlup v. Delo, 513 U.S. 298 (1995). But the claim recognized in Schlup “is procedural, rather than substantive,” meaning that it “does not by itself provide a basis for relief.” Id. at 314–15. Rather, a Schlup claim provides a “gateway” for the habeas petitioner “to have his [or her] otherwise barred constitutional claim considered on the merits.” Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Smith does not identify any substantive federal constitutional claim underlying his alleged “actual innocence” claim. Thus, his claim is not a “gateway” actual innocence claim under Schlup.
Smith‘s claim also cannot be reviewed as a supplemental sufficiency-of-the-evidence claim. Smith tried to raise such a claim in his amended petition before the district court, asserting that “based on newly discovered evidence, there was insufficient evidence to sustain [his] convictions for felony-murder and assault with intent to rob while armed beyond a reasonable doubt.” (R. 38, PageID 906.) Smith argued that this claim of newly discovered evidence “should be addressed together” with his separate sufficiency-of-the-evidence claim—essentially arguing that the affidavit makes the already shaky evidence upon which he was convicted even shakier. (Id., PageID 907.) But a reviewing court evaluating a sufficiency-of-the-evidence claim cannot consider newly discovered evidence. Rather, the court must consider “the trial testimony and exhibits in the light most favorable to the prosecution,” and may not reassess the weight of the evidence or the credibility of witnesses. Brown, 567 F.3d at 205; see also Jackson, 443 U.S. at 318–19; cf. Schlup, 513 U.S. at 330 (distinguishing between a claim of insufficient evidence under Jackson, which prohibits assessments of witness credibility, and a gateway actual innocence claim under Schlup, which allows such assessments based on newly presented evidence). Because Smith‘s claim of newly discovered evidence requires the reviewing court to reweigh evidence and make a probabilistic determination of what a reasonable trier of fact likely would do, it cannot be assessed as a supplemental sufficiency-of-the-evidence claim.
We accordingly agree with the district court that Smith‘s claim based on the affidavit of Robert Evans is a freestanding actual innocence claim. The Supreme Court has defined a freestanding actual innocence claim as one that “argues that [the petitioner] is entitled to habeas relief because newly discovered evidence shows that [the petitioner‘s] conviction is factually incorrect.” Herrera, 506 U.S. at 404. Smith‘s claim based on the affidavit is exactly that.
2.
Next, we turn to the warden‘s arguments that Smith‘s claim is untimely and
Although issues of timeliness and procedural default in habeas proceedings ordinarily should be addressed first, those issues do not affect our jurisdiction. Day v. McDonough, 547 U.S. 198, 205 (2006); Trest v. Cain, 522 U.S. 87, 89 (1997). Therefore, we may sometimes reach the merits of a petitioner‘s claim, particularly when the merits are easily resolvable against the petitioner while the procedural issues are complicated. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); see also, e.g., Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015); Mahdi v. Bagley, 522 F.3d 631, 635 (6th Cir. 2008); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir. 2003). Here, resolution of the procedural issues is not necessary to our disposition of Smith‘s freestanding actual innocence claim, and we agree with the district court that the claim is better resolved on the merits. We turn there now.
3.
The Supreme Court has not answered whether freestanding actual innocence claims are cognizable on habeas review. See House v. Bell, 547 U.S. 518, 555 (2006) (expressly declining to resolve the issue). Our circuit, however, has “repeatedly indicated that such claims are not cognizable on habeas.” Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007) (listing cases). Smith nevertheless invites us to resolve this question in his favor.
Even if we were to recognize a freestanding actual innocence claim, Smith‘s claim based on the affidavit would not succeed. The Supreme Court has noted that if freestanding actual innocence claims were cognizable, the petitioner‘s burden “would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417. This is because such a claim, unattached to any other claim of constitutional error, presupposes that the petitioner “was tried before a jury of his [or her] peers, with the full panoply of protections that our Constitution affords criminal defendants.” Id. at 419 (O‘Connor, J., concurring). Accordingly, the Ninth Circuit has established that a petitioner asserting a freestanding actual innocence claim “must go beyond demonstrating doubt about his [or her] guilt” and “must affirmatively prove that he [or she] is probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc).
Without the ability to make credibility determinations, we conclude that Smith does not prove that he is probably innocent. To be sure, the affidavit of Robert Evans seriously undermines the reliability of Dennis‘s and Evans‘s testimony, but it falls short of affirmatively proving that Smith is innocent. The affidavit does not provide Smith with an alibi, show that someone else killed Ralston, or otherwise “preclude any possibility of [Smith‘s] guilt.” See id. at 477. Instead, it simply gives us further reason to doubt Dennis‘s and Evans‘s testimony. Thus, Smith‘s claim based on the affidavit of Robert Evans
IV.
For the reasons above, we affirm the district court‘s denial of Smith‘s petition for a writ of habeas corpus.