Lloyd E. Schlup v. Paul K. Delo

GIBSON, Judge, R. Circuit Before JOHN HEANEY, Judge, and Circuit Senior BEAM, Judge. Circuit BEAM, Judge. Circuit Eugene Schlup, a Missouri death- Lloyd inmate, stay requests a of execution and row judgment de- of the district court’s reversal habeas petition for a writ of nying his second § 2254. The corpus under 28 U.S.C. 739 (a) court1 dismissed Mr. second peti- successive claims which grounds raise 23, 1993, August tion on and denied his sub- grounds identical to heard and decided on 59(e) sequent Fed.R.Civ.P. motion to set the merits in previous a petition, Kuhl aside the dismissal order. The district Wilson, mann v. 436, 477 U.S. 106 S.Ct. ruling court’s final September 13, 2616, came on (b) 91 (1986); L.Ed.2d 364 new 1993, Sehlup’s and Mr. appeal claims, motion not previously raised which consti stay a of execution pending resolution of tute an writ, abuse McCleskey v. of appeal followed. Zant, 467, 499 U.S. 111 1454, S.Ct. 113 (1991); (c) L.Ed.2d 517 or procedurally The district court stay dissolved its of exe claims in petitioner which the defaulted September 15, 1993, cution on conjunction failed to follow applicable procedural state with its final rulings on petition. the second in raising rules the claims. Murray v. hearing, After a we denied motion for Carrier, 478, 477 2639, U.S. 106 S.Ct. 91 stay pending appeal. Delo, Schlup v. No. (1986). L.Ed.2d 397 These cases are 93-3272, 409815, 1993 WL U.S.App. 1993 premised on our concerns for finality 15, 1993). LEXIS Cir. Oct. We of judgments state conviction, opinion now vacate that and consider re a “significant costs of federal habeas re request newed stay and the merits of Mr. view.” McCleskey, supra, 490-91, Sehlup’s appeal. 1468; see, S.Ct. at e.g., Isaac, Engle v. In support of petition his second for habe- 107, 126-128, 1558, 102 S.Ct. 1571- relief, appeal, and the renewed re- 1572, (1982). 71 L.Ed.2d 783 quest stay execution, Mr. ten- dered to (parallel omitted). Id. district court and now tenders citations to this court several affidavits and state- Mr. Schlup seeks to establish “cause and ments, mostly present prison- former prejudice” or, in alternative, seeks to ers, purporting newly to be discovered evi- establish his “actual innocence” of the crime dence tending establish that he was not as a means of obtaining federal court review present at scene of the murder for which of his constitutional claims. The district he was sentenced to death. He also renews court reviewed and denied his cause and his reliance a videotape, offered at prejudice allegations. agree We with this defense, part of an showing presence alibi result adopt opinion well-reasoned in the dining room near the time of the the district court regard. in this words, murder. appellant says he could not been at the assault II. actually

and is innocent crime. A. Bar Procedural

I. petition, Under a second federal habeas review In his second Mr. Schlu~ asserts a number of constitutional claims not petitioner’s conviction, state court raised, peti claim of actual requires innocence a dual or raised and denied in his first Thus, allegations analysis. First, must consider Mr. tion. these constitute ei writ, Schlup’s attempt to invoke the rule an ther successiveor abusive uses of the 2~ 2244(b), may Wilson, nounced § Kuhlmann v. 477 U.S. U.S.C. be considered (1986) 106 S.Ct. 91 L.Ed.2d 364 this court under limited circumstances. Sawyer Whitley, -, -, that even if petitioner cannot meet v. - U.S. 2514, 2518, prejudice cause standard, a federal court 120 L.Ed.2d 269 petitioner Unless a habeas shows may cause examine the merits of a constitutional prejudice, see Wainwright Sykes, claim if failure so do would result in a 97 S.Ct. 53 L.Ed.2d 594 miscarriage justice. Id., 106 S.Ct. (1977),a may not reach the merits of: A “may requi- make Hamilton, 1. The Jean Honorable C. United Missouri. Judge States District for the Eastern District Id., at standard. objective a more requires ... he establishing that showing by

site words, In other at 2519-20. Id. innocence.” factual claim a colorable innocence guilt or more context of qualification contours innocence” itself, concept of “actual Supreme Court the by the crime clearly delineated at -, Id., 112 at to the test S.Ct. Whitley, grasp. referred to Sawyer v. is easier inno justice subjective or “actual Kuhlmann Thus, miscarriage of more the as the — at -, Sawyer, U.S. exception. cence” is sufficient. test at 2519. 112 S.Ct. conten appellant’s merits the Whatever “not context, innocence actual In this We on a clean slate. tions, write we do not claim, a but instead a constitutional itself because reject argument appellant’s must a habeas through which gateway [required new standard “the circuit this con otherwise barred pass to have must challenges ato equally applies to Sawyer] on the merits.” considered claim stitutional a death conviction, challenges to just — U.S. -, -, Collins, 113 v. Herrera Lockhart, F.2d 969 McCoy v. sentence.” (1993). 203 862, 122 L.Ed.2d S.Ct. Cir.1992). And, (8th imprimatur the 649, 651 appellant this is: Thus, question Has the the stamped en banc this court as defined innocence” “actual established Nix, 976 F.2d v. McCoy holding in Cornell not, least think We Court? — denied, Cir.1992) (en banc), cert. 376 apply. must panel test this under L.Ed.2d 450 U.S. -, 123 113 S.Ct. phase of punishment Sawyer dealt with (1993). our determi Accordingly, we make opposed to proceeding criminal actu Schlup’s claim of whether Mr. nation of trial. There- phase of the innocence guilt or gateway to con our opens innocence al justifica- argues, some fore, with appellant that claims on of his constitutional sideration only a test for tion, Sawyer announced that basis. penalty death the fairness analyzing And, Supreme Court a portion gateway trial. evidence reviewing the Before regard guilt or to Sawyer, with say, in Schlup, did we consider by Mr. advanced now any innocence: constitutional presence or absence inno- determining actual be for relief could standard for which Our at the trial error as: in Kuhlmann was articulated there cence contends The dissent granted. probabil- a fair must prisoner ‘show of “utter “[T]he in the form error constitutional evidence, that, includ- light of all the ity Schlup’s trial counsel” ineffectiveness illegally ad- been alleged to ing that jury have have “the would error but this (but any to unrelia- regard due murder, mitted picture Dade’s the full received it) tenably claimed bility evidence evidence, it would credit the if it were have or to wrongly excluded have been dissent acquit.” but no choice trial, the after become available that, although the district barely mentions a have entertained would of the facts trier assistance claim of ineffective found the ” guilt.’ of his reasonable doubt barred, disregarded procedurally to be — of this at -, the merits holding 112 S.Ct. at and considered Sawyer, U.S. omitted). (citations appeal claim assistance n. 5 ineffective relief. for habeas petition first Mr. hand, says “ac Sawyer theOn Armontrout, F.2d 638-42 941 Schlup v. death penalty under innocence” tual -, denied, (8th Cir.1991), cert. by con must determined phase of ease (1992). We L.Ed.2d 499 112 S.Ct. “petitioner has shown sidering whether announced that under test found convincing evidence clear 668, 687, Washington, Strickland juror error, no reasonable constitutional 2052, 2064, 80 L.Ed.2d S.Ct. penal eligible for death find him not ineffective Schlup’s counsel Says Mr. Id., at -, at 2523. ty.” stages of state guilt penalty either (penalty) higher seemingly appellant, F.2d Schlup, 941 proceeding. amorphous con necessary because test even this result change no see reason of death” We actually being “innocent cept if we consider the now pres- lins, 853, 860-61, - U.S. ents. (1993). So, 122L.Ed.2d 203 even if we disre gard evidence, habeas, As at the first Mr. the source of the new faults information, counsel, Bushmann, Mr. eleventh-hour nature of the presentation coming years sufficiently investigate the facts surrounding almost six after trial; simpiy possible say the murder of Arthur Dade. The dissent it is agrees. appellant allegation This is erroneous un- has shown clear and con fair. vincing evidence that but for a constitutional error no reasonable would have found There were three inmates involved in the guilty. Therefore, him sustaining there is no basis for lawyers murder. The three representing the stay, Blair, the motion for Delo v. accused together worked parts of their - U.S. 125 L.Ed.2d investigations. Mr. spearheaded Bushmann reversing discovery the or for the district court. preparation. defense He arranged participated taking in the so, Even we will discuss the “newly discov- thirty-eight depositions including those of ev- ered” presented Schlup. Mr. ery guilt witness who testified at trial and This information comes in the form of writ- who directly prison. related to the statements, ten affidavits, and analy- a timed was Mr. persistence Bushmann’s that con- sis of the videotape taken in dining room. firmed the existence of the dining room vid- We have now argument heard oral on these eotape used Schlup now Mr. in his effort matters twice. to show actual innocence. Mr. Bushmann major The thrust of Mr. Sehlup’s purport- also through discovery determined that one ed showing of actual innocence involves his persons hundred by prison interviewed alibi defense. Through use of videotape, investigators appears obtained, to have timed on second-by-second basis, review, Mr. tapes or transcripts of all the Schlup claims that he could not have been at statements resulting inquiries. from these was, claims, scene. He he The trials of the other pri- inmates occurred dining room at the time. or to Mr. Schlup’s trial and Mr. Bushmann claims to have reviewed portions the crucial Schlup Mr. primarily upon relies two affi- of this in preparation for Mr. davits, one from a prisoner former and one Sehlup’s problem defense. The does not from a former employee at the institution.2 seem to be deficiencies in preparation The latter document is dated October but, rather, Mr. Bushmann the changing 1993, eight days before we argu- heard oral nature of the presented information by some ment on the merits appeal. individuals at or near the Green, John L. an imnate at deadly the Missouri assault. Prison in City Jefferson at the time of the trial, At as' noted the district murder, in an September 7, affidavit dated court, two prison officials, eyewit who were 1993, states that “standing he was near Ser- crime, nesses to positively identified Mr. geant Flowers” at opens the lever box that Schlup as one perpetrators of the three the cells to unit 5A position and from such the murder. This evidence clearly ad saw the murder. He says further that Ser- missible and stands unrefuted except geant Flowers directed him to call “base” extent that Mr. questions now its report fight and that he immediately credibility. credibility, Witnesses’ however, went into the office and made the call. is an issue jury. reserved for the trial It is not a within conjunction matter the province of In the dis information, this new trict court or of this pro a habeas the affidavit of Faherty, Robert a former ceeding. habeas, Federal explained prison, presented. lieutenant He Herrera, provide does not places forum for the presence Mr. in his in a corri- retrial of a convicted felon. Herrera v. Col- dor to dining hall for a two and half argument, 2. At oral the state contended that the he nothing We retired. find in the record either n employee discharged. way. claims on June Stewart and Mr. Mr. O’Neal proceeded Sehlup Mr. period three-minute Schlup’s Decem- Mr. 1984, and he testified at 5A, the location housing unit instances, Faher- Mr. trial. both ber 1985 dining hall. murder, to the near a window Sehlup yelling out ty has Mr. to show then videotape and then dining room corridor first in dining hall at the arriving Sehlup Mr. prisoners “first wave” passing with videotape, the correc- According line. Specifi- dining room. immediately into minute depart from hall officers tions tem- that he was Faherty testified cally, Mr. re- later, as a purportedly seconds and five at the T-3 located post door porarily on reporting the as- “base” call from of a sult housing leading from the the corridor end of contends, shows that This, Sehlup Mr. sault. fifteen ten to dining hall for unit to the as- housing unit before left during this At this location seconds. arrived, Sehlup Mr. occurred. Since sault yell out the Sehlup Mr. period, he saw time calculation, Faherty’s according to Mr. along Sehlup to move told Mr. window and after four minutes half to and a three least [Sehlup] dining which “he room toward unit, and, the assault housing leaving the im- that he also Faherty testified did.” Mr. statement occurred, to Mr. Green’s according dining after his room mediately moved to the half to two videotape, one and a and the stop at T-3 because second ten to fifteen dining his arrival at prior to minutes post. assigned really his dining room This was the room, Sehlup an alibi. Mr. to accounts, walking from T-3 time By all attempted to Bushmann Mr. same defense no more dining room the entrance at trial. establish thirty to seconds. twenty-five than prior two However, has made Mr. Green context, is the in this importance, Also of investigators prison told He statements. was man- Sergeant Peoples who testimony of day February that on period. during relevant time ning “base” housing at the murder, the office he was in it was equivocation that without He testified Sergeant at the unit, Flowers not next posted Eberle, of the officers Captain away, and that he distance box some lever murder, prison- and not near the scene all. He did observe did not Green, “base” with news who called er help but on a “base” he state that called immedi- Peoples that he stabbing. testified impor- more sequence. Of timing different officers, prison ately an alarm broadcast testimony under oath at is Mr. Green’s tance dining who are room including those Mr. Stewart was trial. Stewart the Rodnie videotape. on the call responding seen Mr. accused, Sehlup and along Mr. discovery, a Thus, and in the the record over O’Neal, tried a and was of the crime is estab- timing sequence much different September Sehlup. On to Mr. year prior Sehlup ample lished, provided Mr. one that under oath Mr. Green testified make murder and participate in the time “fight- office, heard the words was in was, of dining hall. This way to the his [of door ... went “got up fight,” theory the trial and course, state’s office],” Sergeant Flowers at could see verdict. theory compatible with box, running toward the Dade saw the lever collided and Dade and Stewart when office statement, Faherty the recent With he saw no the floor. Green said fell to Mr. appeal to consider arewe asked testified place. He then fight take actual oppor an did that the district for fur- to wait into the office that he went Further, Faherty upon. Mr. tunity pass mention in made no He ther instructions. indicated, trial, so Schlup’s in Mr. testified Thus, nei- calling “base.” newly his affidavit be said that it cannot fully sup- presentations ther these earlier the affidavits evidence as discovered Indeed, present statement. port Green’s Mr. also ob We must in Herrera. considered are crucial differences. there dealing with in a civil context serve that have held summary judgment, we motion Also, under oath Faherty has testified Mr. in conflict affidavit not allow an that we deposition will His prior on two occasions. an testimony to create sworn with earlier lawyers Bushmann taken Mr. Tires, issue of fact. Inc. v. Miche identifies Robert O’Neal and Rodnie Camfield Stewart (8th Cir.1983). Corp., lin Tire 719 F.2d 1361 finds Mr. attack, absent from the We believe that the apply same rule should stated at the time of the contemporaneous litigation, context habeas a civil investigation that he didn’t “know none of action. And, later, those dudes.” he refused to fur- ther comment on happened what at the time While it is evident that there are some of the murder. Faherty’s inconsistencies between Mr. affida- vit and his trial testimony, part, for the most Thus, Schlup, Mr. Herrera, like attempts simply the affidavit is an effort to embellish to seek federal court retrial of his state expand upon testimony given under court prosecution and falls well short of Sehlup’s oath in Mr. trial. This is not the showing “by clear and convincing evidence type newly discovered evidence contem- [that] no juror reasonable would find him Herrera, plated in presents an entirely [guilty of Sawyer, murder.]” U.S. at different issue of whether some seven years 112 S.Ct. at 2523. after a trial permit the court should witness- to, es to come in modify, and add or embell- B. Due Process ish testimony. their earlier We believe that a habeas court permit should not retrial on prong second Mr. “actual such a basis. allegation innocence” requires our consider emphasizes as, dissent also ation parts itself, of the claim a constitutional Schlup’s present Mr. version of the violation. requirement facts This arises from the its attempt that, to advance probability assumption by the Supreme Court in Herr attorney’s but for his incompetence, no rea- era made for the sake of deciding partic that jury sonable would found Schlup have Mr. case, ular “that in capital truly case a guilty of the murder. Schlup Mr. purports persuasive demonstration of ‘actual inno present eyewitnesses to who either didn’t see cence’ made after trial would render him at the assault or implicate who now execution of a unconstitutional, defendant inmate, Randy another Jordan. and warrant federal habeas relief if there state open no avenue process to such picks The dissent and chooses from among Herrera, claim.” at -, Mr. Sehlup’s several new statements affi- and at 869. davits, language This is from see dissent n. Rehn finds Justice some of quist’s opinion by them concurred in they incredible because Justices “are too Sca- incon- lia and sistent Thomas. with” the Justice statements from O’Connor in her some concurrence, newly joined by presented eyewitnesses. Kennedy, Justice compared ignores dissent also contrasted this language, minimizes and that contrary excuses given from Justice statements White’s concurrence and some of these Justice dissent, same individuals when the Blackmun’s crime stated that investigated prior Indeed, to trial. resolution of this issue assumed three Justice the new Rehnquist statements dissent, credited necessary neither nor advisa in affidavit, addition to the ble in Green this case. emphasized those She such that Griffin-Bey, Lamont proceedings Donnell “federal White and they and relief —if are Pierce, James are prior inconsistent with in- all—are reserved for ‘extraordi terviews given during investigation narily high’ ‘truly persuasive demonstra ’ time, crime. At that White and de- tions “actual Pierce innocence” that cannot be having nied witnessed murder at presented As Id., all. at -, state authorities.” concedes, the dissent Griffin-Bey, who now 113 at 874.3 The decisive issue in her court, 3. As the author of opinion Herrera, for the I in five least members express, separately, (Chief without concurrence of Rehnquist, Court Justice Justices Gibson, Judge my O'Connor, R. Schlup Scalia, belief that Kennedy, Mr. Thomas) would cannot, Herrera, holding under the permit seek remedy feder- upon federal habeas based an al upon relief standing" habeas based this “free arising “actual innocence” newly claim dis- seeking claim clemency without first executive (assum- covered evidence than trial rather error from the my Governor of ing Missouri. It is remedy view such a question even exists when the the trial because open court since Rehnquist’s heard inas Justice well concurrence federal nor the Missouri courts neither the failed petitioner had opinion, was that Schlup an willing grant courts have been inno- showing of actual persuasive make a evi- hearing in this new evidentiary which Rehnquist stated cence. Justice This and evaluated. be heard dence could that which showing fell short his innocence truly evidence persuasive claim trigger the constitutional made to be court-imposed pro- Schlup to clear allows existed. he assumed merits of hurdles and to address cedural resolution points Herrera ineffective that trial counsel was his claim just discussed As we have Schlup’s claim. eyewitnesses. interview these itself is II-A, new evidence when part remanding mat- today in not court errs and weak- its inconsistencies analyzed with hearing, it did in evidentiary ter for an together with the evi- nesses, and considered I must petition, and ruling Schlup’s first case, at the before dence therefore dissent. met, extraordinarily high burden is truly persuasive no demonstra- there is I innocence. actual tion of actual of his

Schlup presents new evidence III. truly of Dade’s murder innocence primarily falls The new evidence persuasive. above, conclude stated For the reasons First, impor- and most categories. into two stay of should motion for execution eyewitnesses to tant, the affidavits of are the order of be denied and unequivocally which state Dade’s murder affirmed. did not Schlup at and Second, in Dade’s murder. participate HEANEY, Judge, Circuit Senior that substanti- presents new evidence dissenting. alibi, i.e., that he was videotaped ates truly Lloyd Eugene murder. dining room at the time actually inno- that he is persuasive Ar- his fellow of inmate of the murder cent A eyewitnesses to “Stump” Dade. Five thur eyewit- of Schlup presents five affidavits testimony provided sworn the murder have murder, of whom were to the none the mur- nesses participated in Schlup neither counsel, none by defense Both contacted present at the time. nor der was trial, whom and all of testified at begged of whom mother Schlup and his testimony open counsel) willing give their (and appear in- subsequent to interview firsthand witnesses describe court.1 These near the in cells site mates housed Dade, indicating un- “Stump” murder, Consequently their the murder but none did so. Schlup not a Lloyd was jury equivocally that by testimony not heard present. This and was not even perpetrator Schlup him to death. and sentenced convicted threshold testimony only satisfies Moreover, testimony not been has their answered) mis clemency pardon their historical fulfill consideration reserved future Id.., at -, 113 S.Ct. at 874. open sion.” process such were state avenue "if there no Herrera, at -, 113 S.Ct. at -U.S. a claim.” 869, Schlup argues word they While persons who stated A of other number by “process" in the Herrera formulation included submitted eyewitnesses to Dade’s pro majority means a indicating state the five member sworn affidavits given interpretation ceeding, is untenable such an Schlup present at time the murder was not clemency in of executive placed significant the extensive discussion reliance I have not occurred. by opinion Chief of the Court authored the affiants both the either statements because on these by Rehnquist unwillingness testify written eviden- and the concurrence at an Justice an indicate Indeed, O'Connor, hearing are too tiary Justice or because the statements Justice O'Connor. of all of constitutional with the statements "assume[d]” inconsistent her discussion (those newly presented question “may right, points that the reserved out prosecution). Schlup safeguards and those of require at all” if "the never resolution question of “actual persua- innocence” sure about guy. the other One broke off sively demonstrates the utter kitchen, ineffectiveness and the other threw the Sehlup’s trial counsel in to investi- knife out the guy window. The who threw gate the circumstances of liquid Dade’s murder. just in his face off. backed liquid steaming, and I could smell John Green testifies affidavit that while bleach, so I think it was a mixture of standing outside the unit clerk’s office the boiling bleach and water.... I have seen morning 3, 1984, February he witnessed Lloyd. Schlup, and I know who he is. He Dade’s murder: is definitely not one guys I saw walk, I looked down one Randy and I saw Dade, jump Arthur who I knew as holding Jordan Arthur Dade. Jordan was I “Stump.” know that one of the three standing Dade, behind and had Dade’s men involved has prosecuted, never been pinned arms to his sides I behind. and I Lloyd know that Schlup is innocent. saw Robert O’Neal stab Dade several Affidavit of White, 2, Donnell D. 3 (Apr. times in the chest while Jordan was hold- 1993) 21, added). (emphasis White describes ing him. guy” “the third guy “a white with tatoos [sic] all over his arms.” Id. at 2. Lieutenant I Lloyd never saw Faherty Randy the scene of indicates that Jordan was the crime.... “covered” with tattoos. Affidavit of Robert ¶ (Oct.

Faherty, 26,1993). at 7 White’s testi- mony is otherwise consistent with that of the If I had been Sehlup’s contacted before prosecution: Rodnie Stewart was convicted trial, I attorney would have told his that he for his role in murder, Dade’s which consist- was not there when Dade stabbed.... ed at part least of throwing a cup liquid Green, 2, Affidavit L. Stewart, Dade’s face. (Sept. See State v. 1993). O’Neal been convicted S.W.2d for his role 725-26 (Mo.Ct.App.1986). murder, in Dade’s Stewart, as has Rodnie Joseph Beck also attests to Schlup’s inno- whom Green also saw on “one walk” at the cence: “I witnessed knifing of Arthur time. Green has been prison out of since ‘Stump’ Dade. happened immediately in contrary so to the state’s assertion he 3-3)6 cell, front my away. Lloyd feet does have something to lose perjuring sight, was not in not even on flag, himself. He nonetheless comes forward with stabbing where place. took Never saw persuasive evidence Schlup’s innocence, Schlup.” (Feb. Joseph Affidavit of N. Beck never heard that sen- 1992). death, tenced Schlup to deserves waiting James Pierce was for his friend open be heard in court.2 Harvey Wardell accompany him to lunch Donnell walking White was dining to the when he witnessed Dade’s murder: “I saw “very room close to” “Stump” Dade when guys two go white onto 1-walk. One of them “three guys” white came opposite from the cup threw liquid face, a of in Arthur Dade’s direction: and the other one stabbed Lloyd him. One of had a them of something tumbler Schlup was not in involved the stabbing.” that he threw in Stump’s face. One or two Pierce, Affidavit of James at 1 (Apr. of the 1993). ones sticking other Stump started man, Dade was a black and his mur- with an ice-pick-type They knife. may both der racially have been motivated. jumped him, I but could tell for sure that Those involved alleged were to be members guy him, one stabbing was and I’m not of a supremacist white group in prison. argues 2. The state that latest ably Green's well-being. affidavit afraid for his n. 11. It infra testimony inconsistent with his trial probably was say in his interest to that he had Rodnie Stewart. Green indicated then that just stabbing arrived after the as he indicat- then stabbing had not seen itself. While in- prison ed. Now he has been out of for seven consistency would explored need to be on re- years, longer he no is afraid to let the truth be mand, I fairly easily it explained. believe known. prison Green was justifl- at that time still in and knifing. I did not see in involved following: victim adds and black is also Pierce I was area and Lloyd around guy.... a white to lie no reason “I have away from 10 ft. standing approximately not Schlup did Lloyd certain I know for Affidavit happened.” where incident Dade, he was not even kill Arthur 1992). (Jan. 21, Griffin-Bey LaMont killed.” Id. Dade was present when way to also on his Griffin-Bey was LaMont was avail eyewitnesses3 five Each of these Dade’s murder: he witnessed lunch when had he counsel able to be interviewed Rod- fight was of the thing I saw “The first he was depositions while simply noticed their in Arthur Dade’s liquid throw ney Stewart prosecu on the those prison depose at the Lloyd Schlup face, stab him.... O’Neal The district list, not done. yet this tion’s was fight.” scene present at the not unnecessary to hear determined it (Apr. Griffin-Bey, at 2-3 of LaMont Affidavit court, apparently open witnesses these 1993). contemporane- Griffin-Bey made “something suspect about there is because this affidavit. with consistent statements ous delay” long produced after affidavits that he “saw investigators prison told He do inmates who fellow “affiants are all And in his face. some water man throw strong incentive necessarily man started other down the went when he perjuring themselves.” refrain Excerpt Tran- a knife.” hitting him 4.-92CV00443, Delo, slip op. at No. Interviews, 1A in Exhibit Inmate script of 1993). course, (E.D.Mo. not all Of Aug. of Habeas Cor- for Writ of Petition Support currently prisoners, fellow are the affiants Griffin-Bey). (interview LaMont pus court’s reason above,4 noted event, any given the unpersuasive ing is identify time to Although he failed at The murder for this case. initially (stating facts assailants Dade’s either of prison. convicted occurred Schlup has been those none of dudes” know that he “don’t (other than eyewitnesses that the on follows unwillingness to comment stating an later prisoners. guards) be fellow me”), prison is too serious “this that because earlier two, affidavits “Sgt. These that of the indicate Griffin-Bey did (and earlier Schlup’s counsel got because grabbed one” Flowers counsel) interviewed never post-conviction that Ser- uncontroverted away. Id. It is inmates, of whose at least two fellow his at the scene Stewart geant Flowers detained investigators revealed prison statements O’Neal ran and that addition, eyewitnesses. status their affidavit Griffin- An earlier dining room. affidavit indicates Faherty Lieutenant recent statement: Bey supports most also particularly prisoners, that several of these knifing of Arthur Dade “I witnessed Beck, reliable Joseph are Green I two men [February saw 1984]. murder, me how their it eludes Ac- eyewitness mention. merits 3. One additional repetitive. reasonably transcript inmate be considered interviews cording to the could Brooks, George investigator Schlup’s by prison us reveals conducted now record before Ricky McCoy both that there McCoy McCoy inmate asserted de- depose and that did sup- (indicating generous people” a “crowd Deposition having witnessed incident. nied be interviewed ply 26, 1984). (June McCoy No one asked Ricky counsel) just only two was "[t]here and that trial prior that he had McCoy statement about his then about it." He [perpetrators]. No doubt circumstances Under the the murder. witnessed stabbed Dade man who "Neal” the identifies McCoy’s compel testi- required to counsel the man threw photo who of Stewart mony. 747. infra Excerpt Transcript of In- of cup water. of Interviews, Support Petition Exhibit mate part of the rec- was not Green's 4. affidavit (interview Ricky Corpus of Habeas for Writ court, transcript nor before the trial ord McCoy). testimony Stewart's trial. The Rodnie of his Schlup's ap- denying opinion initial panel court repeatedly our expanded before record Schlup’s counsel although trial peal states parties the court. request at the both Griffin-Bey made the statements reviewed Faherty's been affidavit has Robert Lieutenant "testimony McCoy, that their he decided (of added, thirty-nine depositions as have the testimony pre- repetitive to would be individuals) prosecu- thirty-eight taken from Given Schlup, 941 F.2d at trial.” sented files. eyewitnesses to tor's presented no counsel witnesses, many prisoners. unlike Affidavit Our court set the standard attorney ¶ (Oct. Faherty, 1998). of Robert competence in investigating witnesses and Essentially what the compelling district court and im- their testimony in Eldridge v. At Cir.1981), kins, plicitly require this court wrongly is that one 665 F.2d rt. ce denied, prison present convicted a murder in 456 U.S. inno- 102 S.Ct. (1982): eyewitnesses cents as L.Ed.2d 168 and be able to afford competent counsel from the beginning. When a liberty man’s is at stake counsel could, Sehlup course, do neither. Rather greater owes a duty than to simply accept eyewitnesses’ than discount these statements hearsay someone’s statement that the wit- sight unseen, the district court should have ness would rather testify. lawyer’s A granted Sehlup evidentiary hearing he duty to defend greater rises to a measure requested, and then these witnesses could be of responsibility. A competent lawyer’s subject to examination the state and duty their is to every utilize voluntary effort to credibility accurately could be persuade determined. a witness possesses who material facts and knowledge of an testify to event argues The state Schlup’s counsel was then, unsuccessful, if to subpoena him effective and notes specifically that he de- to court in order to allow judge to use posed thirty-eight witnesses. These deposi- power persuade pres- witness to tions collectively were done Schlup’s, ent material evidence. Stewart’s, attorneys, and O’Neal’s Competent required, counsel are as indicated presence prosecutor, period over a above, to every use means necessary per- to. extending July 10,1984. June 26 to Of suade these present witnesses to material thirty-eight witnesses, fourteen were in- evidence. A pleads witness who the Fifth mates remaining twenty-four were Amendment prison either personnel or law enforce- is not exonerated from answering merely Eight ment officers. of the fourteen inmates because he declares that doing so he questions, refused to answer some would incriminate say-so himself —his does them relied on the Fifth Amendment. n notof itself establish hazard of incrimi- nation. It is for say Other the court to inmates were during discussed whether justified, deposition silence is and to require him corrections George officer if Brooks, clearly answer “it appears who indicated that he had inter- that he is mistaken.” viewed all of the inmates on walks one through four and that none of these inmates States, 479, 486, United Hoffman any knowledge Deposi- incident. 814, 818, (1951) (cita- 95 L.Ed. 1118 Brooks, George 1984). tion of (July at 9 omitted). tions Schlup’s give counsel did not Schlup’s apparently accepted this the court that opportunity. He did not inter- testimony as fact and failed interview the view to the murder who would inmates on these walks.5 ample This is evi- have Sehlup testified that was not dence of his ineffectiveness, but he was fur- participate, did not and he did not com- ther in accepting ineffective inmates’ pel state- of those who refused to ments they testify would not testify. performance because His violated they had taken the Fifth Amendment. constitutionally protected right to counsel. No supports majori- Regardless record statements, read he whether ty’s obligated Schlup's potential assertion that eyewit- interview these counsel "ar- individually. nesses failure ranged” His so do is the taking thirty-eight depo- of these Schlup's essence of claim of ineffective assis- appears sitions. witnesses de- point tance. Lest the majority's be lost in the posed proffered those the state. If it is do, recitation of what trial counsel did let me true, majority suggests, as the that trial counsel repeat: before, point during, at no after or read the statements of the hundred inmates Schlup's did any counsel interview of the one four, on through walks one he has even less potential eyewitnesses hundred known to made excuse for individually to interview Grif- him the representation state. In this his fell fin-Bey McCoy, prison and who told both investi- required by below the level the Sixth Amend- gators they that had witnessed Dade's murder. ment. was not of trial but at the time available

B to the ineffective- to the due presented eyewitness to the In addition Green, John Schlup’s trial counsel. ness of above, Schlup presents also discussed testimony is discussed whose eyewitness the the support of evidence new court with the above, simply watch stab- more than did That at trial. defense he alibi Sergeant Flowers February 3. bing on testimony of several of the consisted defense base, and to call the for someone called out ahead of walked Schlup had prisoners prison the just told that. He did Green room, testimony of dining the to the them phone call when he investigators about spoken to Faherty that he had Lieutenant Sgt. Flowers “I heard interviewed: was first room, the vid- dining and the Schlup outside they had a had officers cause calling for inmate Schlup as first eotape that shows nobody told me to get so he fight. Couldn’t dining room. arrive in fight notify them of call base videotape is importance Transcript Excerpt of I did.” that’s what arrived, when lapse time between Interviews, Support 4A in Exhibit Inmate their a call over received guards when (inter- Corpus of Habeas for Writ Petition Dade, when on attack about the radios Green). phone call took This view of disputes arrived. No one and Jordan O’Neal “inmate Dade fall just saw place after he on in line for lunch first Schlup was office.” Id. front of the right there in video- The surveillance February this fact. dining greater room confirms detail: provides tape of the affidavit Green’s videotape, base, one minute seconds of According to it was within I called “When Schlup’s entrance elapsed ground. It could not hitting seconds five Dade guards re- dining room until or a minute a half minute into the than been more Twenty- fight. about the radio call Jordan and O’Neal. ceived a stabbed after he was responded to the guards very after the Affidavit of John L. happened seconds fast.” six dining 1993).6 room Green, ran into (Sept. call O’Neal radio at George investigator Prison blood. dripping Faherty expanded on has also Lieutenant run trial that one could at Brooks testified testimony. deposition trial and his earlier dining crime to from the scene T-3, duty at that he testifies was He seconds, thirty a brisk just over room Schlup’s cell and halfway door between about a minute. taking walk over except kept locked dining room that is the radio call At trial it believed was place moving from one inmates are when dining guards be seen room can to which the opened from base T-3 When was another. after made several minutes responding was direction, Schlup “com- he saw control Captain Eberle stabbing occurred. walking He was ing the corridor.... down help when had radioed testified that he pock- in his leisurely pace hands with his scene, on the he first arrived ¶4 Faherty, at Affidavit of ets.” Robert stabbing. This after the several minutes 1993). (Oct. 26, Schlup stopped at a window time, as given Schlup arguably have would outside, Faherty repri- yell at someone closing arguments, to in its the state asserted him, walked T-3. manded minute room one before get dining down, and he went to Faherty “patted him radio. out call went over perspir- [Schlup] was not dining room. hard, not ner- breathing he was ing on this new Schlup presents evidence Faherty relieved from T-3 however, vous.” Id. apparently point, evidence record, no evi- appear and there is dispatcher Peoples, these Sergeant who was the by Schlup's stabbing, they examined indicated were ever control at time of dence base by Captain De- called Eberle. difficulties in this that he had been One of the case trial counsel. (July Peoples, (it position R. 9-10 of Ellis ascertaining all occurred absolute times 1984). Green or was not asked about John He noon”), logs seem to and these "about fight. He any had called in the whether inmate logs regard. these absence of in this useful incident, kept log testify of this did that he the ineffectiveness of further depo- Faherty likewise testified in Lieutenant counsel. logs. of certain None sition existence shortly passed after Sehlup through, and claim that his counsel was ineffec- Faherty dining then went to the declaring room. He tive subject the' issue proce- Sehlup presence estimates that was in dural procedural his bar. The hurdles habeas (presumably petitioners from the corridor the other must side clear stem from two sorts of room) First, dining of T-3 and into the concerns. we two-and- wish to insure that state given a-half to three courts minutes. are an opportunity would take to review Sehlup such thirty another claims seconds to before we will walk from review them our- selves, second, cell to and Faherty’s where first entered he fear that late-bloom- ¶ ing sight. line of claims of error Counting Id. at 6. that the min- could have been raised dining ute in the earlier are prior room little more dilatory call than radio (when by petitioner’s tactics presumably Faherty’s pres- counsel. Neither con- implicated cern well), as this Sehlup ence left case Sehlup his walk because at least has asserted since beginning three three-and-a-half minutes his trial before the counsel was radio call.7 If ineffective for the radio call response came in inter- view to Dade’s call, murder. phone John Green’s it impossible, asserts, Faherty Sehlup to have partic- A ipated in Dade’s murder. Sehlup was convicted on December timing Given the help this call for two-day after trial.8 His conviction (the presented the evidence at trial video- affirmed on February 1987, by the tape, testimony Faherty, Lieutenant Missouri Supreme Court and the United testimony Brooks on long how it States Court denied certiorari on takes to move from scene of the crime to June year. 8 of that Schlup, State v. room), the dining possible it is not (Mo.), denied, S.W.2d 286 cert. Sehlup could participated have in Dade’s (1987). 96 L.Ed.2d 685 Less murder and dining been in the room as the than six Sehlup weeks later filed post- videotape short, indicates. Lloyd Sehlup relief in conviction the Missouri courts under could not places have been two at the Rule 27.26 as it then existed. This was the same time. O’Neal nearly thirty arrived sec- first opportunity that Sehlup had to raise the call, onds after the prosecu- radio ineffectiveness of his trial counsel because no testimony tion’s establishes that he off took record been made which would allow the at a run. He was dining followed into the issue to raised on appeal. Sehlup direct by Randy room Jordan. Rodnie Stewart had loudly raised the clearly, issue alleging already Meanwhile, been detained. that his trial counsel was constitutionally in Sehlup has maintained since beginning, effective in that he “failed to interview wit simply he was dining eating room support nesses in including [his] defense

fish sandwich. O’Neal, Robinson, Robert Van Lamont Grif fin Ricky McCoy, who were witnesses to II convicted, crime which Petitioner was Despite weight evidence, of this new and who would have testified that Petitioner the court refuses to reach the merits of was not the three inmates involved.” Faherty indicates in his affidavit that must jury it what we would through tell the that sat been have five to five-and-a-half minutes from trial, long implying two-week three-week Sehlup time left his cell to the time of the we would showing disrespect somehow be radio call. This is somewhat inconsistent with jury Sehlup if we found that deserved new trial the details of both his affidavit and his earlier because of trial counsel’s failure deposition. Any inconsisten- very jury exculpatory repeat witnesses. I cy explored, perhaps explained, should be Sehlup only two-day received trial. Had evidentiary hearing. an rely One need exculpatory eyewit- most conservative estimate of a three-minute presented, nesses now would have re- lapse Sehlup to conclude that could murder, picture ceived full of Dade's and if it participated in Dade's murder. evidence, were to credit new it would have acquit. no choice but to argument 8. The state asserted at oral that we "retry” should case on habeas and asked

750 was not that Petitioner State, testified 2, No. Schlup v. Motion Rule 27.26 in the murder inmate involved (Circuit third Charles of St. Court CV187-3457CC including afore- 1987). Schlup convicted” 18, which was Mo., July County, filed (¶ A(5)). raised 2 Counsel Id. at to investi- mentioned. “counsel failed alleged that also district filed with the in the briefs this issue and failed defense alibi gate Petitioner’s 9-10, Petitioner’s Brief See Jordan, be- court well. who Petitioner Randy interview 89-0020C(3) Armontrout, No. Schlup v. participant third in fact the was lieves 1989). (E.D.Mo. May convicted.” Petitioner of which Id. at 3. summarily and court ruled hearing at which evidentiary was held claims raised any An that the basis without testified, others, mo- A(l) A(5), along trial counsel paragraphs finding that against Schlup, be court ruled further consideration” tion “barred were See had been effective. them at counsel to assert Sehlup’s his trial “failure cause of (Circuit State, No. CV187-3457CC for new trial, in his motion them to include Mo., County, Nov. pursue Charles trial, appeal, of St. Court them on to brief 1987). accepted counsel’s The court post-conviction proceedings.” in [his] them 89-0020C(3), who testimony, Armontrout, that the witnesses slip and found No. Schlup v. not made (E.D.Mo. 31, 1989), were either May aff'd, not interviewed 945 6 op. at by Schlup denied, or “were (8th Cir.1991), counsel to trial known cert. F.2d 1062 which would to have information not known 117 L.Ed.2d Id. at (1992). the defense.” assist decision, spe- this adverse Schlup appealed court, argu- again to our Schlup appealed was inef- cifically alleging that trial counsel ineffective counsel had been ing that trial interviewing aforemen- for not fective witnesses, investigate and call “fail[ing] to Appellant’s Brief at witnesses. tioned witnesses, petitioner’s case including alibi (Mo.1988) State, 758 S.W.2d

Schlup v. 18, Schlup v. Appellant’s Brief at in chief.” 70694). (No. Supreme of Missouri Court Cir.1991) Armontrout, 945 F.2d 1062 mo- it issue when affirmed ignored this 90-1164EM). (No. than remand the Rather State, Schlup v. decision. tion court’s it could court so to the district matter (en banc). (Mo.1988) 758 S.W.2d merits initial determination on the make the evidentiary hearing (and conduct the perhaps pro in his se raised the issue then court), had in federal Schlup has never in the East habeas petition for federal filed the merits of his claims addressed handwritten we of Missouri. His District ern wanting. found them alleges “[d]id counsel petition Green; who was inmate John interview proce- fully alleged explored Had we gave to investi statement inmate ‘clerk’ default, it to be would have found dural call to base put phone out the gators that he to the Schlup raised the issue nonexistent. petition prepared amended His control.” County, Mis- Charles Court St. Circuit of the 27.26 language restated counsel Missouri, souri, Supreme Court motion, trial coun alleging that “Petitioner’s Supreme Court the Missouri but because sup interview witnesses ... failed to sel the issue the district failed to address including Robert port of defense [the] it in that Schlup had failed raise ruled that Robinson, O’Neal, Lamont Griffin Van error Missouri Court’s forum. The to the Ricky McCoy, were witnesses who ruling Schlup, and our was attributed convicted, and petitioner was crime of which injustice. compounded the that Petitioner have testified who would First three inmates involved.” B 11(a)(3) Petition, Attachment Amended remanding the Armontrout, in not case We erred 0iA(1)), No. 89- Schlup v. 1989). years ago. Had we done two 0020C(3) (E.D.Mo. district court filed March counsel, appointed so, who of trial alleged ineffectiveness Schlup also ruling immediately following prior our persons who to call for failure “those and. who is truly competent the counsel to ally, during ineffective guilt the phase of-his represented have Schlup since beginning, the trial. See Strickland v. Washington, 466 would have opportunity had an develop 668, the U.S. 2052, 104 S.Ct. 80 L.Ed.2d 674 record we now have (1984). before and this us claim could been addressed on the merits the district as it court should have been in A place. first Supreme Under the Court’s decisions on only procedural hurdle that remains in innocence, actual the standard to be applied Schlup’s path is our affirmance of the district in this case is in stated Wilson, Kuhlmann v. court’s error in to address this claim 436, 2616, 91 L.Ed.2d 364

when it presented. was first There are two (1986), in which Justice Powell stated the routes procedural around this bar. The (cid:127) requirement pursued route in the briefs is the actual prisoner must “show a fair probability innocence or miscarriage jus- fundamental that, light in of all evidence, ... exception bar, tice exception but that nor- trier of fact would have entertained a rea- mally pursued when the failure to raise the sonable guilt.” doubt Thus, his claim earlier can be petitioner. traced to the question whether prisoner can make In this ease the fault lies with the federal requisite showing must be. determined courts, and the second route around this bar reference all probative evidence of can be remedied sensibly most by this feder- guilt or innocence. al court. requires Justice that we correct Id., 17, at 454 n. 106 S.Ct. at 2627 n. decision, our 17 prior which we can do recall- (Powell, J., for a plurality) (quoting Henry ing the mandate and remanding the initial Friendly, Is Innocence Irrelevant? petition Collater- to the district court for an evidentia- al Attack on Judgments, Criminal 38 ry U.Chi. hearing on the merits of the ineffective (1970) (footnote L.Rev. 160 omitted)) assistance claim. Recall of the mandate is (emphasis in original). I believe that Schlup prevent authorized injustice,” “to 8th Cir.R. has standard, met this but, as 41A, majority and we have done so in the death correctly notes, our court applied has a dif- penalty past. context See Simmons v. standard, ferent essentially reading the Lockhart, Su- (8th Cir.1988). 856 F.2d 1144 preme Courifs decision Sawyer implicit- Schlup has asserted that trial counsel was ly overruling regard. Kuhlmann ineffective for failing to eyewitness- interview es since beginning, it is time that In Sawyer, his Court affirmed support evidence to that claim Circuit, be heard in Fifth quoting with approyal the open court. adopted test by that court: “[W]e must require show, Ill based proffered plus evidence all evidence, record a fair probability If that a we do not recall prior mandate, our rational trier of fact would have enter- Sehlup’s claims are barred either succes tained a reasonable doubt as sive, abusive, the exis- or procedurally defaulted, see — tence of those facts which are prerequisites Sawyer v. Whitley, U.S. -, -, 112 under state or federal law for imposi- L.Ed.2d 269 but tion of the death penalty.” exceptions must made if a petitioner ade quately either asserts cause and prejudice or Sawyer, at -, U.S. 112 S.Ct. at 2523 a fundamental miscarriage justice, which (quoting Sawyer Whitley, 945 F.2d is also known as the “actual Cir.1991)). innocence” ex Court then restated id,., ception. at -, See test, S.Ct. at 2518- changing it markedly in process, If the evidence in what has become an all too common were to up stand in an evidentiary hearing, sleight-of-hand. it Despite praise its for the satisfy the actual standard, innocence (which Fifth Circuit comes, standard and we should therefore course, address the merits from Kuhlmann), the Court now re claim that his counsel was quires constitution- arguing innocence be addressed. must of counsel convincing assistance “clear provide penalty death failure alleges that trial counsel’s error, no constitutional cir- investigation of the a reasonable conduct eligible for him find juror would

reasonable de- surrounding the cumstances believe I also Id. penalty.” the death Sixth rights under the him of test, prived our Schlup has satisfied Strickland, erroneously, Amendment. my view sponte, has sua 2052, 674. Petitioners L.Ed.2d 80 S.Ct. as to 104 as well to convictions apply to extended counsel ineffective assistance alleging in Briefs Cornell Appellants’ See sentences. performance banc) (en that counsel’s Cir.1992) both (8th show must Nix, 376 976 F.2d v. reasonable- (8th “the standard to meet Lockhart, failed F.2d 649 969 McCoy v. norms” professional prevailing under argue for ness of which Cir.1992), neither assis- ineffective Circuit, for counsel’s “but that Fifth Sawyer. The extension that probability reasonable is a there tance by Supreme Court affirmed which was differ- have been trial would con result ruling to that not extended Sawyer, has (8th Solem, 88, 90 F.2d v. 923 Grooms Kuhlmann ent.” victions, ruling instead that Cir.1991). prejudice is substan- The test convictions. apply to to continues standard (5th satisfy is the test than tially to Collins, easier 13 988 F.2d Montoya v. (which already indi- I have sentencing innocence actual Cir.) Sawyer (restricting to satisfies), so Schlup’s evidence to cated apply Kuhlmann continuing to phase — newly pre- U.S. -, remaining question is whether denied, cert. guilt phase), should, — could, been L.Ed.2d -(1993). have sented 113 S.Ct. trial by competent counsel. discovered course bound are of panel, aAs were a case Cornell, if ever there but transcripts of to having access Despite to clar- might wish Court Supreme which interviews, which contained some of prisoner issue, is one. law on ify the Schlup’s counsel eyewitnesses, statements actual strong case of presented Schlup has investiga- any reasonable failed conduct the Cornell it I meets believe innocence. that repeatedly held has This court tion.9 “truly persua- is standard, it believe and I potential alibi witnesses to interview failure — Collins, v. Herrera required sive” under competence a lack constitutes 122 L.Ed.2d -, Grooms, See, e.g., 923 F.2d Strickland. does not. What majority but 203 Armontrout, F.2d 91; Lawrence court, or the majority either the Cir.1990). Failure interview 129-30 strong- presented a Schlup noted that unquestionably is' eye potential witnesses did than Herrera innocence of actual er case inter- failure to egregious than more since only increased (and the evidence ease, Schlup In this alibi witnesses. view if decision),. do would court’s the district and, indi- eyewitnesses least both offers “fair required to show a simply Schlup were witness, of whom all rectly, an alibi known, innocence probability” investi- by a reasonable uncovered been have Supreme or the en banc only our court surrounding circumstances gation of the happen. that can make Court murder. Dade’s called statement had Green’s B certainly would base, a statement alibi, Schlup’s was available bolstered have procedural hurdles Schlup clears Once prisoner transcript counsel by this court place put Had by Brooks.10 conducted interviews of ineffective Court, of his claim the merits crowded cellblock occurred in crime apparently failed even counsel be possibility of should that the about counsel inquire of O’Neal's Stewart's investigated. took of these trials eyewitnesses. Both potential Schlup’s and defense counsel place both before- prisoner transcripts of the inter- Some murder. I assume that eyewitnesses to Dade’s they counsel. Were to trial helped were available might direct- views have witnesses of those unavailable, under to relief is entitled aware least become ly, have at but counsel would Green, then interviewed riam), he could all required that is stay for a to issue have asked question that none of the on a second subsequent or petition habeas “ transcripts prisoner reveals interviews ‘substantial any have been prisoner: asked of Lloyd Was grounds upon which might relief grant Schlup present at ” Dade’s murder?11 Coun- ed.’ at -, Id. 113 S.Ct. at 2923 (quoting sel would further incentive inter- Collins, Herrera v. U.S. at McCoy12 view and Griffin-Bey, who both 853, 873, 12 (1993) L.Ed.2d admitted to prison investigators they (O’Connor, J., concurring)). Blair, witnessed the They crime. too could have objected Court stay of a issuance been asked whether Schlup present. because the district court had stated that the Even if counsel were not made aware ei- facts that ease mirrored those that ther prison authorities that Court had recently rejected in Herrera. there were murder, witnesses to the he was This ease is distinguishable on a number of obligated simply by common sense to investi- grounds. gate the possibility.. This murder occurred prisoners were being released from their First, Schlup is not relying exclusively on a go cells to to lunch. The existence of wit- constitutional claim of innocence, actual but nesses to the murder was as inevitable as using innocence gateway as a to reach the their cooperate reluctance pris- either with merits of his ineffective assistance claim. on investigators or with a room full of law- Second, the district court indicated that yers and O’Neal.13 Counsel’s failure to in- Schlup presented stronger case than vestigate these witnesses and other eye- did Herrera in. that Schlup’s affidavits do not witnesses was unreasonable under our case consist hearsay eyewitness law, testimo Schlup and is therefore entitled to relief ny, was, and Herrera opinion if in the testimony these witnesses’ were to survive court, rigors of an evidentiary “convicted on the hearing. basis of a larger quantity of evidence than present IV ed at [Schlupl’s trial.” Delo, Schlup v. No. —Blair, Under Delo v. 4:92CV00443, (E.D.Mo. slip op. at 11 Aug. S.Ct. (1993) 125 L.Ed.2d 751 (per 1993).14 Third, cu- those presented affidavits Brady Maryland, prison investigators. ment to supra 3. n. 10 L.Ed.2d 215 prosecution's due to the Schlup's counsel McCoy us informs is now failure to turn over dead, such exculpatory evidence in presume so I explanation no further will be process. violation of due forthcoming. George 11. Brooks deposition indicated in his 13. depositions Several of the of inmates who asked the they inmates if had wit- questions refused to answer prosecu- reflect the nessed Dade's anything murder or else unusual tor’s belief that O’Neal was responsible for short, on that date. In being were inmates inmates' quite reticence. likely seems that an by prison guards asked to "snitch” on fellow presence interview in O'Neal’s would not be the eyewitnesses inmates when the were all too most conducive gain environment in which to guards aware that the position were in no cooperation eyewitnesses, yet the record provide protection perpetrators and Schlup's reveals that no made effort to their cronies. This place murder took in the (as contact opposed to alibi witness- Special Unit, Management also known as "Su- es) individually. perMax,” yet prison personnel even were fearful appearing in this area Deposition alone. See only significant 14. Rutledge, Warden, The William by'the Associate (June 29, 1984). state at Schlup's The latest was the inmate affidavits two prison guards they gave indicate that conflicting too who afraid to travel statements as alone lunch, even to the details but who Schlup evidenced both several of testified that them waiting participant third walking friends before with O’Neal and dining Stew- O'Neal, art. Unlike room. clothing whose was covered blood, physical with Dade’s no evidence linked depose McCoy Counsel did but the record guard this crime. Neither has ever indicates no effort to interview him outside of Jordan, been asked Randy about whom presence prosecutor pur- One O'Neal. prison addition, asserts was the "snitch.” pose of such an might interview Schlup's been to during argu- counsel informed us oral deposition reconcile with his earlier state- has, prison ment that one guards of the two ORDER perpetrator actual identify Sehlup Jordan, whereabouts whose Randy point 17, 1993. November but, in Herr- unlike unknown presently are de- to be Blair, not known iswho era and rehearing en banc suggestion The maintained fourth, Sehlup has And ceased. are denied. stay of execution motion both beginning, while since McMillian, his innocence Arnold, Judge Judge Chief had, knowingly and volun- Herrera Blair and suggestion grant the Judge Wollman Sehlup presents not, confessed. tarily or the motion. than innocence actual stronger case much Herrera. Blair or did either ARNOLD, Judge, Chief S. RICHARD upon grounds presents substantial petition joined dissenting, McMILLIAN we should granted, and might be relief WOLLMAN, Judges. Circuit re- Schlup’s execution stay therefore rehearing suggestion for grant for an I would to the district ease mand this questions raised to consider two en banc evidentiary hearing. Lloyd Sehlup. Y actually inno he is Sehlup argues that capital by the crime and' rulings- by this court cent legal to avoid this Court necessary to enable Sehlup in an inex- Lloyd sense place court and reach asks, you procedural defenses did court state’s Why, the bind. tricable counsel that his trial contention Because of his merits this sooner? present evidence not claim, our assessing this In a reason- to was ineffective. failed conduct my earlier Lockhart, McCoy v. Why rule of applied the Sehlup responds. panel investigation, able Cir.1992). (8th McCoy, we pillars of the F.2d 649 us with 969 present not you then do justice pur for miscarriage Be- that a your held prove innocence? community to can be defenses avoiding procedural prison, he re- poses in occurred the crime cause has shown community only petitioner occu- when found pillars of few plies, and but for court, convincing That, is evidence says clear py prison cells. error, juror no reasonable constitutional unfortunate, virtuous for absent F.2d at guilty. 969 nothing can him machine, could find there or a time from Saw Henry this standard McCoy lifted told. Circuit Court the Ninth do. Just as — U.S. -, sentence,15 Whitley, yer to his death regard v. Deutscher (1992), having to do a case regard to his 269 Sehlup in 120 L.Ed.2d Lloyd tells not innocent, punishment, question of but only with may indeed be You conviction: early enough. guilt or enough innocence. you not innocent are (cid:127) mat- we remand requires that Justice present case acknowl panel in the As our for an Court District States ter to the United Schlup’s warrant is some edged, there evidentiary hearing. by the Sawyer was intended argument only questions apply ARNOLD, Supreme Court Chief S. RICHARD Before john Sawyer opinion gibson, and that punishment, McMillian, r. Judge, unchanged, purposes MAGILL, preserves WOLLMAN, itself BOWMAN, FAGG, of Kuhl standard the earlier guilt-phase, HANSEN, LOKEN, MORRIS BEAM, Wilson, S.Ct. 106 mann v. ARNOLD, Judges. Circuit SHEPPARD 605, 606 Whitley, trial, 991 F.2d See Deutscher a criminal time of had at the Cir.1993) although Deutscher (holding that Mis- Under three felonies. that includes record is it court’s] satisfaction felonies, [the law, had "shown though recent these souri that, constitu- probable than not impeach more origin, been introduced could counsel, not have he would tionally deficient suffi- conducted Maylee if trial counsel die," did not he nonetheless been sentenced existence. investigation uncover their cient n set satisfy new standard that such an no record reveals consequently Sawyer, did merit consequent- Court jury place, inquiry took relief). ly deprived this evidence -well. (1986) L.Ed.2d (requiring peti Herrera, under if newly evidence is discover- tioner to probability that, a fair show ed, light a habeas could obtain relief by evidence, jury all would have en making “truly persuasive” or “extraordi- tertained a reasonable doubt guilt). of his nary” case, if, even after considering the new — Sawyer, U.S. at - n. evidence, S.Ct. á reasonable could still convict at 2519 n. 5. him. panel Our did what it had to do. It was This, any rate, seems to me the bound to McCoy not, follow and it did as a state of the law. If I right, am Sehlup may panel, err doing me, so. seems to have a ground substantial for relief. Wheth- though, that there is question a substantial er he or not admittedly does fact-inten- McCoy whether correctly interpreted Saw- question, sive not the sort of thing of which yer. question This is a great importance en proceedings banc are normally made. in habeas corpus jurisprudence, I and believe But where human stake, life is at I believe qualifies it deserving of this Court’s en rehearing en banc is appropriate whenever a banc time. petitioner makes claim, a substantial even if

2.- it is fact-specific. Petitioner raises another “innocence” issue—this independent one an ground for reasons, For these I grant the sug- relief, habeas just rather than a gateway gestion for rehearing banc, en I respect- through procedural defenses can be fully dissent from the denying order it. avoided. As I understand the opin various Collins, ions in U.S. -, Herrera v. 122 L.Ed.2d 203 a majority appears Court that, to believe in a sufficiently case, strong innocence would be a

ground for habeas relief. The case would “truly persuasive” be and “extraordi nary.” We know that these standards were JENKINS, by Kalima friend, her Kamau not met in Blair, Herrera or in itself v. Delo AGYEI; Carolyn Dawson, by her next 125 L.Ed.2d friend Dawson; Richard Tufanza A. (1993) curiam). (per Blair, In stay Byrd, by friend, her next Byrd; Teresa execution was ground dissolved Dydell; Derek A. Cason, by Terrance his the evidence of innocence was per no more friend, next Cason; Antoria Jonathan suasive than in Herrera. Wiggins, by friend, his next Rosemary my view, In it is likely Sehlup’s evi- Love; Jacobs Kirk Ward, by Allan dence of innocence is substantially per- more friend, Mary next Ward; Robert M. suasive than Herrera’s or Blair’s. I am not Hall, by friend, next Hall; Denise nearly so familiar with the record as the Dwayne Turrentine, A. his next panel, members of the but Judge Heaney’s friend, Turrentine; Sheila Gregory A. dissent convinces me that there is at least a Pugh, by friend, his next Winters, David substantial likelihood that a trier of fact on behalf of themselves and all others consider evidence sufficiently similarly situated, Plaintiffs-Appellees, persuasive to meet high Herrera stan- if an evidentiary dard hearing were held. To American Teachers, Federation sure, there are contradictions in both Local Plaintiffs, evidence, sides’ agree and I panel with the that, even after all of the new evidence is considered, a reasonable could still find MISSOURI; STATE OF Ashcroft, Sehlup guilty. sense, In this the Herrera Governor of the Missouri; State of Wen standard seems easier to meet than the Bailey, dell Saw- Treasurer of the State of standard, which yer quite close Missouri; to that of Missouri State Board of Edu Virginia, Jackson v. cation; Bentley; Roseann Dan L. Black (1979). 61 L.Ed.2d 560 words, well; Gary Cunningham; Raymond M.

Case Details

Case Name: Lloyd E. Schlup v. Paul K. Delo

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 17, 1993

Citation: 11 F.3d 738

Docket Number: 93-3272

Court Abbreviation: 8th Cir.