Marble v. StateMarble v. State
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- Before:
- Cotter
Lead
delivered the Opinion of the Court.
¶1 Cоdy Marble appeals the Fourth Judicial District Court’s denial of his petition for postconviction relief (PCR). This case has a lengthy history. In 2002, Marble was convicted of sexual intercourse without consent. The victim, then thirteen-year-old Robert Thomas, testified at Marble’s trial that Marble forcibly engaged in anal sexual intercourse with him in the shower at the Missoula County Detention Center where both boys were temporary inmates for juvenile offenses. In 2010, Thomas recanted his accusations in writing. Based upon those recantations, Marble petitioned for postconviction relief seeking, among other things, a new trial. The District Court denied the petition. Marble appeals. We reverse the order of the District Court and remand for proceedings in accordance with this Opinion.
ISSUES
¶2 We restate the issues before the Court as follows:
¶3 Did the District Court err in predicating its decision upon the concurring opinion in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II1)?
¶4 If reliance on the Beach II concurrence was error, what test must a district court employ in reviewing a petition for postcоnviction relief based upon newly discovered evidence and filed within one year of discovery of such evidence?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 In 2002, seventeen-year-old Cody Marble spent several weeks in Pod C of the Missoula County Detention Center (MCDC) with seven other boys, aged 13 to 18. According to MCDC taped footage and eyewitness testimony, on the evening of March 10,2002, between 9:00 p.m. and 9:45 p.m., while at least four other pod mates were gathered in the common area just outside the showers, Thomas and Marble voluntarily entered a
¶6 OnMarch 13,bothboyswerereleasedfromMCDCandwenthome to their respective families. On March 21,2002, Marble was charged with felony sexual intercourse without consent after other Pod C inmates reported to the Detention Center authorities that Marble had raped Thomas in the showers on March 10. Later, those same inmates and Thomas testified against Marble at trial. Marble asserted the rape never occurred and that he was the victim of a malicious set-up by other boys in the pod, including Thomas. On November 22,2002, a jury found Marble guilty. In January2004, Marble was sentenced to twenty years, with fifteen suspended.
¶7 Marble has consistently maintained his innocence since he was accused, and his case has been before this Court on multiple occasions. See, e.g., State v. Marble, 2005 MT 208, 328 Mont. 223, 119 P.3d 88, Marble v. State, 2007 MT 98, 337 Mont. 99, 169 P.3d 1148, and State v. Marble, 2010 MT 210N.2
¶8 In the late fall оf2009, Marble contacted the Montana Innocence Project. Marble had heard rumors that Thomas, who was serving time for statutory rape, was telling other inmates that Marble did not rape him. Marble asked the Innocence Project to contact Thomas and investigate. The Innocence Project interviewed Thomas approximately four times between December 23, 2009, and July 2010. Thomas verbally recanted his rape claim on each occasion but initially refused to provide a written statement.
¶9 In July 2010, Thomas handwrote the following recantation:
8 or so years ago when I was 13 at Missoula County Juvenile Detention Facility I was sitting at a table in the dayroom. There were three other people at the table. They told me to say that Cody Marble raped me. But this did not happen. And now today I want to come out and let it be known. I’m coming forward now because I’m in prison on a sex crime and know what it is like. So I don’t want him to be charged with one when innоcent. When I was in jail, I was the youngest & smallest and I was pressured into going along with it.
Thomas provided this letter to attorneys with the Montana Innocence Project. A few days later, an Innocence Project lawyer returned with a typed letter of recantation for Thomas’s signature. This letter was more detailed than Thomas’s earlier handwritten note. It unequivocally stated that the rape did not occur and that Thomas had participated in a conspiracy against Marble. Thomas made a handwritten correction to one of the statements and initialed and dated the correction. He then signed and dated the typed letter and returned it to the Innocence Project lawyer.
¶10 Based upon these letters, on December 14, 2010, Marble filed a petition for postconviction relief, the denial of which is currently on review before us. The District Court ordered that Thomas be deposed. At both his deposition in January 2012 and later at the October 24, 2012 PCR hearing, Thomas testified that the rape did occur as he claimed in 2002 and that because the Innocence Project lawyers called him a liar, he recanted and told them what they wanted to hear. He also testified that he thought the Innocence Project might help him with his legal problems if he cooperated with them.
¶12 On April 7,2014, while on parole, Thomas had an encounter with the Havre police that resulted in a 21-hour standoff ending with Thomas’s suicide.
STANDARD OF REVIEW
¶13 “We review a district court’s denial of a petition for post-conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667 {citing Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118). “We reviеw discretionary rulings in post-conviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14; Hamilton v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d 588.
DISCUSSION
¶14 Did the District Court err in predicating its decision upon the concurring opinion in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II)?
¶15 Marble’s petition for postconviction relief was brought under
(1) Except as provided in subsection (2), a petition for the relief referred to in 46-21-101 may be filed at any time within 1 year of the date that the conviction becomes final. A conviction becomes final for purposes of this chapter when:
(a) the time for appeal to the Montana supreme court expires;
(b) if an appeal is taken to the Montana supreme court, the time for petitioning the United States supreme court for review expires; or
(c) if review is sought in the United States supreme court, on the date that that court issues its final order in the case.
(2) A claim that alleges the existence of newly discovered evidence that, if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted, may be raised in a petition filed within 1 year of the date on which the conviction becomes final or the date on which the petitioner discovers, or reasonably should have discovered, the existence of the evidence, whichever is later.
¶16 The State does not argue that Marble’s petition was untimely, nor does it assert that Marble’s awareness of inmate rumors triggered the one-year clock to begin running. Marble’s representative — the Innocence Project — heard from Thomas for the first time on December 23,2009, that the rape had not occurred. Marble filed his petition for PCR on December 14,2010. Consequently, Marble’s petition was not time-barred.
¶17 Marble asserted in the District Court that the newly discovered evidence consisting of Thomas’s repeated recantatiоns entitled him to a new trial. He maintained that his PCR petition should be analyzed under
¶18 The District Court adopted the State’s argument and conducted a lengthy analysis of Marble’s claim of innocence under the Beach II concurrence. The court concluded that in making a substantive claim of innocence under
¶19 In Beach’s 2008 petition for PCR, Beach claimed that newly discovered evidence established his “actual innocence.” The district court reviewed the new evidence and determined that it was sufficient to warrant a new trial. The State appealed and this Court reversed the district court, holding that, as part of its analysis the district court was required to consider the evidence presented at Beach’s original trial together with Beach’s new evidence. We concluded that the district court erroneously reviewed the new evidence only. Beach II, ¶ 79. After considering both old and new evidence on appeal, we concluded that Beach’s newly discovered evidence did not displace the original trial evidence and that the new evidence was unreliable and failed to establish Beach’s actual innocence. Beach II, ¶ 80.
¶20 The Beach II concurrence revisited the test for determining postconviction claims of “actual innocence” as set forth in Beach I and applied in Beach II. Beach II, ¶ 81 (McKinnon, J., concurring). Concluding that the Beach I test confused the applicable law, the concurrence reviewed the standards for both substantivе and procedural innocence claims and set forth revised standards for each. The concurrence also addressed application of
¶21 As indicated, Marble argues that the District Court should have analyzed his petition under the five-prong Clark test rather than the Beach II concurrence. In Clark, we reviewed a district court’s denial of Clark’s motion for a new trial (as opposed to a PCR petition). In 2003, Clark was convicted of sexually assaulting his stepdaughter. Shortly after the trial, the stepdaughter recanted much of her damning testimony. Clark moved for a new trial asserting that the recantation constituted new evidence. The district court denied his motion and several months later sentenced him and entered a written judgment. Clark, ¶¶ 13-15.
¶22 On appeal, we announced that the following test would be applied to motions for new trial predicated on newly discovered evidence:
To prevail on a motion for a new trial grounded on newly discovered evidence, the defendant must satisfy a five-part test:
(1) The evidence must have been discovered since the defendant’s trial;
(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.
Clark, ¶ 34. We then remanded Clark’s motion to the district court for reconsideration in accordance with the five-part test. Clark, ¶ 42.
¶23 Several months after Clark was decided, Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, came before the Court. In 1996, Crosby was convicted of sexual intercourse without consent. The victim, Crosby’s then ten-year-old daughter, recanted her testimony in 2003. Crosby, ¶ 5. Crosby filed a petition for postconviction relief alleging that his daughter’s recantation constituted new evidence. Crosby, ¶ 6. Following a PCR hearing, the district court denied Crosby’s motion. Crosby, ¶¶ 7-8. On appeal, we concluded that the Clark test, originally developed to address a motion for a new trial, should apply to a petition for postconviction relief based upon newly discovered evidence. Crosby, ¶ 20. We reversed and remanded Crosby’s case to the district court with instructions to apply the Clark test to determine whether Crosby was entitled to postconviction relief and a new trial. Crosby,
¶24 Because we held in Crosby that the Clark test should apply in PCR cases, Marble argues the Clark test should likewise apply to his postconviction relief claim. The State counters, however, that applying Clark to claims for postconviction relief is incompatible with the exacting language of
¶25 At oral argument, the State maintained that the disparity between the proof required under the PCR statute and that required by the fifth factor of the Clark test is justified in light of the fact that a PCR petitioner is saddled with a presumption of guilt, whereas a judgment of conviction has not yet been entered against the petitioner who files a motion for new trial following a verdict or finding of guilty but before the entry of a judgment of conviction. Thus, it argues, the test to be applied to PCR claims premised upon newly discovered evidence should require a more strenuous level of proof than that applied to a petitioner against whom a judgment of conviction has not yet been entered.
¶26 A defendant who has been convicted by a court or juiy of a crime but against whom a final judgment of conviction and sentence has not yet been entered has a brief window of time within which to file a motion for new trial.
¶27
¶28 We agree with the State’s argument. Although there is a paucity of case law on the topic, it stands to reason that a PCR petitioner is presumed guilty following the date upon which his conviction has become final, while a defendant who has timely requested a new trial and has not yet had a judgment of conviction and sentence entered against him does not yet carry with him the presumption of guilt and the associated burdens that accompany a final judgment of conviction.
¶29 Because the PCR petitioner is presumed guilty following the entry of a judgment of conviction, his burden when seeking postconviction relief based upon newly discovered evidence should be greater than that imposed upon a petitioner seeking a new trial under
¶30
¶31 The foregoing statutory provisions illustrate that a court entertaining a petition for pоstconviction relief has multiple arrows in its quiver. While a court may order a new trial, it clearly has the statutory right to dismiss the petition before or after briefing or proceed to “determine the issue” with or without a hearing. A request for a new trial in a petition for postconviction relief based upon newly discovered evidence, while permissible, does not recast a PCR proceeding as a petition for a new trial, nor does it change or limit the options available to the district court. We therefore erred in tying a PCR court to the Clark test, and in particular to factor five of the Clark test, which permits a defendant “[t]o prevail on a motion for a new trial grounded on newly discovered evidence” where the evidence indicates “that a new trial has a reasonable probability of resulting in a different outcome.” Crosby, ¶ 19. This test is inconsistent with the standard set forth in
¶32 We must next determine whether the District Court erred in predicating its decision on the Beach II concurring opinion, and if so, what test should be applied to petitions for postconviction relief premised upon newly discovered evidence. We start with the proposition that newly discovered evidence can take varying forms. The Beach II concurrence concludes at ¶ 131 that a petitioner seeking relief under
¶33 The Dissent maintains that we err in refusing to apply the principles articulated in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), as explained in Justice McKinnon’s Beach II concurrence. We disagree. The Beach II concurrence instructs that a Schlup petitioner must allege the occurrence of a constitutional violation at his first trial coupled with the presentation of new evidence of innocence. Beach II, ¶ 96. As illustrated in ¶ 54 and the accompanying footnote of Justice McKinnon’s Concurrence and Dissent, in each of our cases in which Schlup was invoked, the defendant alleged the occurrence of a constitutional error during his first trial, such as improper instructions to the jury or inеffective assistance of trial counsel. Marble does not allege that a constitutional violation occurred at his first trial; therefore, Schlup is not applicable. We proceed to determine what test should be applied to Marble’s petition.
¶34 What test must a district court employ in reviewing a petition for postconviction relief based upon newly discovered evidence and filed within one year of discovery of such evidence?
¶35
¶36 In construing a statute, it is incumbent upon the court to “declare what is in terms or in substance contained therein, not to insert what has been omitted ... .”
¶37 It will be up to the district court to determine within the options provided in
¶38 The statutory test we announce today does not run afoul of our postconviction relief precedent. This Court has reviewed on appeal literally hundreds of district court dispositions of petitions for postconviction relief, many by way of memorandum opinion. While we have on occasion reversed the district court’s denial of a petition for postconviction relief and remanded for an evidentiary hearing (see Heath, ¶ 27, in which we remanded for a hearing in view of the “unique circumstances” occasioned by an IAC claim involving trial counsel who had since died), we have by and large declined to dictate to the district court which of the many statutory alternatives it should utilize when considering the merits of a postconviction petition. The constant in our decisions is the requirement that a postconviction petition must “identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.”
CONCLUSION
¶39 For the foregoing reasons, we conclude that the District Court erred in grounding its rejection of Marble’s PCR petition upon the Beach II concurrence. We conclude that a district court shall apply the statutory test set forth in
¶40 Reversed and remanded.
JUSTICES SHEA, BAKER, WHEAT and DISTRICT JUDGE HAYWORTH, sitting for CHIEF JUSTICE McGRATH concur.Notes
As we have previously designated Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667 as Beach I, we designate our opinion in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 as Beach II.
State v. Marble, 2010 MT 210N, is a non-cite opinion thаt shall not be cited as precedent.
Concurrence Opinion
concurring in part and dissenting in part.
¶41 I concur with the Court’s adoption of the statutory language in
¶42 The following factual statements are all taken from the District Court’s detailed findings. Thomas was a “credible and believable witness,” both in the original trial and the post-conviction hearing. Thomas’ sworn testimony in this matter, given over a period of 10 years from the original trial, to his deposition and through the postconviction proceeding, was consistent: Marble raped him in the shower as alleged in the Information. Thomas never varied from this account in his multiple statements given under oath.
¶43 Thomas was contacted by the Montana Innocence Project (MIP), who was representing Marble. When meeting with Thomas, MIP did not initially discuss Marble’s case “and it was not until later meetings that [MIP lawyer] Mansch even mentioned Marble.” Thomas was willing to continue meeting with Mansch because Thomas believed MIP was going to help him with his own legal problems and that Mansch would help him get into the military. Mansch “pressed hard” for Thomas to recant his testimony against Marble. Thomas refused to sign an affidavit recanting his testimony that MDP prepared for his signature and refused to recant under oath during the entire time.
¶44 Mansch told Thomas that if he signed a recantation statement, then, in Thomas’ words, “it [would] probably be over with” and “[t]hey shouldn’t need to hear from me again.” Thomas was not advised of his rights to silence or to counsel. Thomas wrote out a short recantation and signed an unsworn recantation statement that had been preрared for him by MIP because he believed that by “giving Mansch what Mansch wanted,” Thomas would obtain help for his own case and with getting into the military. He also signed it “because they didn’t believe me, kept calling back talking to me, calling me a liar when I told them the truth. So I just told them what they wanted to hear.... Badgered into it.” Thomas had also been transferred to the same facility as Marble and been approached by a friend of Marble’s about his testimony.
¶45 Subsequently, under oath, both in his deposition and in the post-conviction hearing, Thomas acknowledged that his recantation statements given to MIP were false and were lies. Thomas believed he “would not get into any trouble” for making a false statement if his statement was not given under oath. Mansch’s “focus on helping Marble” kept Mansch from seeing that Thomas’ recantation “was false and given as part of [Thomas’] attempt to obtain the help of Mansch.” ¶46 “[Significant evidence” was introduced at Marble’s trial to support the jury’s decision that Marble was guilty. Marble was “very, very interested” in taking the plea offer made by the prosecution before Marble’s trial but he did not do so because of his father’s strong feelings against Marble pleading guilty to an offense involving alleged homosexual behavior.
¶47 The only new evidence is Thomas’ unsworn recantation. Although the recantation could be used in a new trial for Marble, the District Court concluded that “[t]he evidence leading up to the signed recantation by [Thomas] is devastating” to its value, including the “circumstances of persistence under which it was obtained, the narrow manner (not sworn) in which it was finally consented to be given and [Thomas’] motive for making the recantation.” The District Court determined that the recantation “is not reliable evidence and does not raise a doubt about the guilt of Marble, either on its own or in light of the proof of Marble’s guilt adduced at the time of Marble’s trial.” [Further, as Marble’s counsel acknowledged during oral аrgument, the law requires that recantations are to be “viewed with great suspicion.” Clark, ¶ 37.
¶48 Applying the new legal standard, I would conclude that the factual record clearly
Concurrence Opinion
concurring in part and dissenting in part.
¶49 It is difficult for me to know where to begin.
¶50 First, by “announc[ing]” the “statutory test” as the new test to be utilized by district courts presented with post-judgment claims of newly discovered evidence, Opinion, ¶ 38, the Court has said nothing to assist the trial courts with their interpretation of
¶51 Perhaps the starting point for any discussion should be the Beach II concurrence. I wrote the Beach II concurrence to clarify the confusion in our law resulting from Beach I, Tyler, DuBray, Crosby, andA&e. Nothing in the Beach II concurrence “revised” the standards for evaluating substantive and procedural innocence claims. See Opinion, ¶ 20. Rather, the Beach II concurrence reaffirmed our prior clear аnd unmistakable adoption of Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993), and the corresponding analysis for evaluating post-judgment claims of newly discovered evidence. Beach II concurrence, ¶¶ 95-96, 105, 119, 123; see State v. Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232; State v. Redcrow, 1999 MT 95, 294 Mont. 252, 980 P.2d 622. Moreover, in adopting Schlup and Herrera to guide our consideration of claims filed pursuant to
¶52 The distinctions articulated in Montana’s case law between proсedural and substantive claims of actual innocence, and the
¶53 When first charged with a crime, a person is entitled to a presumption of innocence and may insist that his guilt be proven beyond a reasonable doubt. Herrera, 506 U.S. at 398, 113 S. Ct. at 859. Once a defendant has been convicted of the offense with which he has been charged, he is no longer entitled to the presumption of innocence. Herrera, 506 U.S. at 399, 113 S. Ct. at 860. A presumption of guilt now attaches as a result of his conviction and strips him of many of the constitutional safeguards attendant to the presumption of innocence. Although convicted of a crime, a defendant may nevertheless mount a multitude of challenges to his conviction. One such challenge is a claim of newly discovered evidence filed pursuant to
¶54 A petitioner unable to conclusively establish a substantive, freestanding claim of actual innocence may nevertheless obtain postconviction review of an alleged constitutional error, if his newly discovered evidence is such that the court cannot have confidence in the outcome of the trial given the allegation of constitutional error. The constitutional error may be any that could normally be raised in a petition for postconviction relief, since succеssfully raising a “gateway” claim under Schlup entitles the petitioner to review of his constitutional error in a postconviction proceeding.1 In Pope, ¶ 49, we
¶55 The Court states, without proper analysis, that “there would be no reason to compare the new evidence to the proof of guilt at trial” if a petitioner can “unquestionably establish his innocence. ” Opinion, ¶ 32. However, as the statute correctly recognizes, under either a substantive, freestanding claim or a procedural claim, the new evidence must always be compared to the evidence adduced at trial. More to the point, in Herrera, the Court evaluated Herrera’s substantive, freestanding claim of actual innocence by considering the affidavits relied upon by Herrera in light of the evidence presented at trial by the prosecution. The Herrera court remarked that the affidavits were inconsistent with one another, the affiants were not subject to cross-examination, the individual identified as the guilty party was deceased, and, for the most part, the affidavits consisted of hearsay. Herrera, 506 U.S. at 417-18, 113 S. Ct. at 869-70. The Herrera court further noted that at trial, the prosecution had produced two eyewitness statements and a written statement by Herrerahimself, all of which indicated he was the guilty party. After considering the newly discovered evidence in light of the evidence produced at trial, the court concluded that Herrera’s showing of evidence fell fаr short of that required of a defendant convicted of a crime following a trial free of constitutional error. Herrera, 506 U.S. at 418-19, 113 S. Ct. at 870. Similarly, in Pope, pursuant to
The complete DNA report tends to deflate the State’s evidence that Pope had intercourse with M. J. While it does not exclude the possibility that he had intercourse with M.J., he cannot be included as a sperm donor based upon the DNA results. The DNA results indicate the presence of athird unknown party. Streeter testified that the unknown party, whose presence is indicated by the DNA test, could have been the type A blood source that Long attributed to Pope. Moreover, in light of the DNA evidence, Long’s testimony and blood type testing is inconclusive. The DNA evidence topples the State’s theory presented to the jury: “If you find that there was a substance in the vaginal fluid and in the panties, that had drained into the panties, you are going to find that that - - of the blood testing was done, the only possible contributor for that is the defendant, Vance Pope.”
Pope, ¶ 60. Thus, this Court is simply wrong when we state that “there would be no reason to compare the new evidence to the proof of guilt at trial.” Opinion, ¶ 32. Certainly, newly discovered evidence for both a substantive, freestanding claim of actual innocence or a procedural claim of actual innocence must always be evaluated in the context of the evidence adduced at trial. This is the only way of determining the significance and relevance of the new evidence. When the Montana Legislature enacted
¶56 In my opinion, the principles articulated in Schlup, Herrera, Pope, and Redcrow are sound and in harmony with the important public policy of ensuring finality of state court judgments, which serves both the State’s goal of rehabilitating criminal defendants and the State’s legitimate punitive interests. To upset these principles and to remove an analytical framework allowing consistent evaluation of newly discovered evidence — not only consistent among the various trial courts, but consistent with rules and presumptions inherent in our criminal law — is to unsettle the expectations of consistency and finality held by victims, petitioners, and the State.
¶57 We state we are announcing a new “statutory test” and take comfort in the fact that we are only stating the rule as it has been written by the legislature. However, we have provided no guidance to the district courts and have again changed the rules in a complicated area of jurisprudence, despite attempts made by the Beach II conсurrence to clarify those rules. We have failed to recognize consistent and well-reasoned Montana case law recognizing distinctions in claims, burdens of proof, and constitutional error regarding post-judgment claims of newly discovered evidence. We arguably have created issues concerning fairness and equity between those claims previously decided under the more “rigid” test and those now to be decided under a test “suited to the quantum of proof required of a postconviction relief petitioner” — whatever that means. Finally, Clark considerations are inappropriate to a post-judgment claim of newly discovered evidence. While I agree Tyler, DuBray, and Crosby should be overruled to the extent that they applied Clark to post-judgment claims of newly discovered evidence, and concur in that portion of the Opinion, I would not simultaneously reinject Clark as “guidance” for the district courts in considering these claims. At the risk of being too brazen, this appears slightly inconsistent.
¶58 I dissent.
In Pope, ¶ 55, the constitutional error аlleged was that the jury had been improperly instructed that Pope could be found guilty of sexual intercourse without consent with either A. J. or M. J., thus placing into question Pope’s right to a unanimous verdict. Pope also alleged that prosecutorial misconduct and ineffective assistance of counsel denied him the right to a fair trial. Pope, ¶ 55. These allegations of constitutional error were reviewed in a subsequent postconviction proceeding following this Court’s decision that Pope presented sufficient evidence of his actual innocence to place in doubt the reliability of his conviction. Pope, ¶ 70. InRedcrow, ¶¶ 35-36, the constitutional error alleged was ineffective assistance of trial counsel and that her co-defendant was the real killer. This Court found that Redcrow had not demonstrated her actual innocence in light of her confession to law enforcement. Redcrow, ¶ 37. In Schlup, the constitutional claim was that the ineffective assistance of counsel and the withholding of evidence by the prosecution denied him the full “panoply of protections afforded to criminal defendants by the Constitution.” Schlup, 513 U.S. at 314, 115 S. Ct. at 860.