Smith v. Baldwin

Roger SMITH, Paul Petitioner-

Appellant,

George BALDWIN, Respondent- H.

Appellee.

No. 04-35253. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted March

Filed Oct. REINHARDT, HUG,

Bеfore BYBEE, Judges. Circuit Reinhardt; by Opinion by Judge Dissent Judge Bybee REINHARDT, Judge. Circuit I. whether presents question

This case that he is prisoner a state who contends innocent, principal but whose wit- actually by the into not testi- ness is coerced state behalf, fying may his federal pursue on his claims in court not- constitutional federal all withstanding comply his failure to with procedural prerequisites. of the applicable serving a life Roger currently Smith is 30-year term. sentence with minimum procedural The district court dismissed on grounds for of habeas petition a writ corpus reaching merits of his without It found that he not exhaust- claims. had that, court and ed those claims state him procedural because state rules barred now, proce- doing so claims were court, Like durally defaulted. the district do his case. not consider merits of that, exception All we under an decide is rules, may procedural Smith applicable pursue his federal constitutional claims federal court. Both facts and the law however, complex, are tend to be corpus almost days these all habeas Hester, Thomas J. Office the Federal cases. Portland, Defender, OR, for the Public argues appeal on that his petitioner-appellant. petition procedurally has not default been has, procedural ed if it de Hardy Myers, Attorney General for the fault should be excused on the of his basis Oregon, Williams, H. Mary Solici- State exception claim of actual innocence. (On Briefs); tor General Kathleen Schlup which he relies known as the General, Salem, Cegla, Attorney Assistant exception, after “actual innocence” named (Argued), respondent-appellee. OR Delo, Schlup case 513 U.S. (1995). 130 L.Ed.2d 808 S.Ct. mis prosecutorial

We hold that because ha conduct in connection with his federal proceedings seriously beas interfered ability necessary to make the remand so that may be afforded a showing Schlup, under and because the hearing on the merits of his constitutional effectively resultant harm cannot be claims.1 means,

remedied less intrusive the ex II. culpatory testimony from the withheld a court as result of the state’s actions must 3, 1989, April On young men, two to presumed be be true. We deem the Edmonds, and burglarized Jacob and truthful, exculpatory to statements robbed the home of Emmett and Elma however, only for the purpose determin man, Konzelman. A Bouse, third Marlin ing whether Smith’s contentions are suffi drove home, with them to the Konzelmans’ any cient to procedural excuse default that but participate decided not to further in may occurred; have we do not consider the criminal activity initially after entering remedy here what would be appropriate garage. Although there was no indica- respect with to subsequent his efforts to tion that the two who entered the house any establish claim on the merits that itself planned injure anyone, had to one of relief, might them, entitle him including any to when out presence of the of the other, claim of actual innocence. attacked the Konzelmans in their bedroom bludgeoned and Mr. Konzelman short, In only we conclude afford- Konzelman, to death. Mrs. who survived ing disputed witness statements the assault, police only told one of the truthfulness, presumption benefit of the burglars had attacked couple and that Schlup Smith satisfies the “actual inno- no one else entered the room at that time cence” standard for a overcoming proce- killing. or saw the dispute There is no dural default of his claims insofar as that either Edmonds alone com- conviction, felony relate to his murder mitted the question murder. The ultimate nothing below, more. explain As we is which one. here, Schlup is satisfied and thus Smith is proceed entitled to with his constitutional There is substantial evidence in the rec- claims, simply because the evidence at ord suggest that Edmonds murdered point likely preclude any rea- Mr. Konzelman and that he committed the juror sonable from determining killing that he presence outside of Smith’s killer, was the actual any but because that without knowledge advance on Smith’s evidence would more than part not cause engage any he would violent such to conclude that he had conduct or that he possessed dangerous a established, by preponderance a deadly weapon. the evi- or geta- The blood on the dence, an felony affirmative defense to the way truck and Mrs. Konzelman’s recollec- murder charge Oregon attire, instance, under law. Ac- tion of the killer’s point cordingly, we However, reverse the district court and to Edmonds as the killer.2 as argument 1. On the charge only. basis of the oral and briefs Smith offers no facts or court, submitted to this we construe Smith's arguments support that would ac- claim of appeal challenging procedural default robbery tual innocence of the offense or respect of his claims to his procedural would otherwise excuse his de- respect murder conviction and not with to his Thus, fault as to robbery that conviction. Therefore, robbery Schlup conviction. conviction stands. showing of "actual innocence” as to the felo- ny charge murder will suffice to overcome the suggesting 2. The evidence Edmonds was the challenged procedural respect default with person responsible killing for the be ex- will pro- that conviction and will allow Smith to plored in more detail in the "actual inno- ceed on the merits of the claims relevant involuntary. plea unknowing Ed- contest prosecutor, a deal with part of judge denied post-conviction in The state as the murderer named Smith monds new counsel request appoint of his murder for the dismissal return him on the merits. against ruled plea agree- The charges. conditions pass poly- required Edmonds ment appeal, appointed New counsel showing all of his examination graph appeal the denial but Smith did give and to were truthful allegations argued only claims and post-conviction memorializing his ac- complete statement have replacement counsel should been return, against Smith. cusation post-conviction appointed at his first hear- concurrent agreed to recommend state ing. Oregon Appeals Court of af- of 43 on with a minimum months sentences Oregon opinion firmed without and the robbery pled.3 to which he counts the two Supreme denied As a result Court review. appeal, presented of this Smith never his learning prose- that he After post-conviction substantive claims capital and that Ed- for murder cuted state court remain supreme and unex- him, testify against going to monds was hausted. continuously Smith, had asserted his who

innocence, and pled robbery contest to no In a notarized statement to the district return, he murder. In received felony years incident attorney seven after the and with a minimum term of 30 life sentence years Oregon Supreme two after Although pled no contest to years. review, Smith Edmonds recant- Court’s denial murder, charge felony Smith, testimony against the lesser ed his earlier he was judge explained that enhanc- implicitly trial that he had acknowledging mur- sentence because believed ing Smith’s dered Mr. Konzelman. ex- who had commit- that was the one plained although Smith in a sworn he “stated killing, though the ted the even evidence ... Roger had in statement Smith point. from clear this After the was far on bludgeoned fact Emmit Konzleman [sic] appeal, death,” filed which the plea, Smith a direct he wanted “for the record [to] and the Oregon Appeals Oregon Court Roger retract statement. Smith did opinion. Court without Supreme denied not kill Emmit Konzleman He [sic].” then committing perjury confessed to his post-con- for petition then filed a against explained Smith and statement court, setting viction relief state forth only way for “the me to set record (1) claims that trial counsel consti- his straight is to write confession now.” tutionally lawyer his ineffective because recantation, plea agreement coerced his without advis- Based on Edmonds’s pursuing again requested post-conviction him of or an relief ing affirmative de- (2) murder; felony petition his due state court. process fense Smith’s second as- plea were serted that 1996 rights denied when Edmonds’s Edmonds’s recantation him; (3) bargain wrongfully exculpated and him implicated new evidence process rights process rights due were violated that his due were his be- violated aggra- cause the effect of his medication and his both when the differences between rendered no vated were felony trial counsel’s coercion his murder murder opinion. subsequent section See criminal his cence” of the Part record that actual infra may substantially IV.A. sentence have been less purported than the recommendation. regarding Although the record clear, appears actual sentence is not explained plea to him at the time of his On basis second recantation him provide Edmonds, court failed to by and when the petition Smith amended his explanation of the adequate (5) with an adding two additional claims: that he is him, charges against given he was actually innocent of murder and his below-average intelligence. drugs and right process conviction violates his to due court, however, summary granted under the Fourteenth Amendment and his state, concluding that judgment for the right to be free from cruel and unusual “post-conviction is not the to— for[u]m Amendment; punishment under the Eighth newly allow this relief here on dis- won’t (6) process that his federal due rights appealed covered evidence.” Smith but Brady were violated under Maryland, attorney with grew frustrated with his U.S. S.Ct. L.Ed.2d 215 delay caused numerous extensions (1963), prosecution when the made a deal result, of time. As a he filed a motion for the actual suppressed murderer and dismissal, voluntary grant- the court which tending exculpate evidence Smith. ed. Smith next turned his attention to claims, federal courts: Smith asserted After Smith added his new petition four for relief in a for grounds copy state the first time turned over a (1) corpus: federal habeas conviction ob- of Edmonds’s from polygraph results by guilty plea which was unlawful- tained though spe- even Smith’s trial counsel had voluntarily ly induced and made neither cifically requested the document before (2) intelligently; nor denial of effective plea. polygraph Smith’s The 1989 exami- during investiga- of counsel assistance nation of a questions, consisted few which (3) preparation stages; tive and trial deni- included whether Edmonds ei- “st[ruek] during of al of effective assistance counsel of in people ther the house on South (4) plea negotiation/ entry stage; deni- “lying Shore Drive” and whether he was during al of effective assistance of counsel anyone else’s involvement in about hearings before the trial court. event.” Edmonds answered “no” both proceedings, Amidst federal habeas that questions. The concluded evaluator again Edmonds recanted his statements although opinion is the of this examin- “[i]t in against a sworn affidavit. This Smith ... er that Edmonds answered these time, Edmonds’s declaration even more manner, in a ... questions truthful strongly inculpated exculpated himself and scoring Comparison on the Backster Zone as the actual killer: “I know that Smith Taking Technique Test is inconclusive.” bludgeon Mr. did not or otherwise Smith in such test results into account consider- I strike Mr. Konzleman know [sic] agreement, al- ing plea Smith that Mr. Smith never entered the Konzle- dispute, not that leges, and the state does bedroom, killing man’s where the oc- [sic] satisfy Edmonds failed to the conditions of explained curred.” Edmonds also that Furthermore, plea agreement. his in part my plea agreement of “[a]s years, for 14 produced document was case, underlying required I was to take a timely though requested even it was polygraph concerning the murder and I exculpatory contained information. passed that I neither failed [n]or told dramatically Smith asserts the state incon- test but the results were suppress exculpa- accelerated its efforts to statements, By clusive.” these Edmonds tory during pendency evidence in largely testimony, discredited his initial The state proceedings. federal habeas which he had labeled as the attack- Smith Edmonds with the revocation er. threatened corpus requested him the habeas grant institution of and the guilty plea of his charges if he insisted on relief, murder capital evidentiary order an hear- should with his recanta- testifying accordance government at which the should ing time, it made Ed- At the same tions. immu- provide Edmonds with compelled respect immunity monds an offer nity. testify on if he would behalf perjury later, court years Almost two the district formally his recent withdraw the state clear, shows the mer To be the record that it was unable to reach confessions. ruled that, to deter part attempt of its It claims. held its testifying that Smith was be procedurally defaulted claims were innocent, informed Edmonds and the state them in cause of his failure exhaust if he newly appointed per- counsel that his found court.4 The district court also state recanting testimony against sisted did not either suffi that Smith establish Smith, pen- the state would seek the death preju or cause and cient actual innocence response him. In to these alty against stated, It dice to excuse the defaults. threats, to the dis- Edmonds sent a letter however, logical inference” from “[a] him that he would judge informing trict manner testify Edmonds’s refusal to privilege Fifth if invoke his Amendment state, prose even after the desired testify called to on Smith’s behalf. immunity if promise cution’s he would reply, contended the state so, testify that “if Edmonds did do in- prosecutorial misconduct engaging truthfully, say that did not he would function of factfinding tended to distort the Konzelman, implicate kill Emmitt [sic] the court and the court did pendent constitutional claim” and "free- district court held that because it found The innocence”). standing procedurally claim[] de- of actual Smith's claims to be all of faulted, not to address of it did need them whether, We need not decide now as the so, doing court on the merits. district magistrate judge Findings & concluded in his freestanding claim of failed to address any freestanding report, Recommendations asserted in Smith’s amended feder- innocence (or ”) cognizable "Herrera claim is in petition, though al habeas even it noted that 417, cases, capital see id. at 113 S.Ct. 853 cognizable are in Ore- innocence claims (assuming, argument, that "in for sake of Collins, gon Herrera v. 506 U.S. courts. capital truly persuasive Cf. case a demonstra- 393, 853, 390, 113 S.Ct. 122 L.Ed.2d 203 tion of 'actual innocence’ made after trial (1993) (in petitioner a free- which asserted would the execution of a defendant render standing actual based on claim of innocence unconstitutional, and warrant federal habeas newly contended discovered evidence and open were state avenue relief if there no that his execution would therefore violate claim”); process such a the district court for Amendments). Eighth Fourteenth and In his held, adopt ruling, did not but instead Smith, petition, amended federal habeas like erroneously, freestanding claim that Smith's Flerrera, actually argued innocent that he is procedurally of actual innocence was barred. and that his conviction claim, murder freestanding A "actual innocence” however, the Fourteenth Amend- therefore violates may procedurally not be defaulted. guarantee process Rather, of due and the ment's type this of claim constitutes an ex- Eighth prohibition against Amendment's cru- ception procedural provisions. to the default punishment. appears, Moreover, case, was, unusual Smith el and there as noted in this however, earlier, to have intended to assert both a way bring no for Smith to the claim freestanding type claim and the of claim that court. court should have state The district (a procedural Schlup freestanding directly. serves to excuse default addressed the claim 404-05, (dis- claim). "extraordinarily high” See id. at 113 S.Ct. 853 es- Given the standard id., Herrera, however, tinguishing showing between the "colorable see Smith's tablished prospects prevailing of actual innocence” that is used to "seek for on claim procedural appear at [of] excusal of a error ... an inde- to be minuscule best.

811 Nevertheless, evidentiary hearing, it of an based on the the killer.” himself as standards, AEDPA is reviewed for abuse that Edmonds rejected suggestion discretion, Woodford, v. F.3d States Davis 384 immunity under United granted Cir.2004) (9th (9th 628, Westerdahl, (citing v. Cir. 638 Lawson 945 F.2d 1083 v. (9th Cir.1995)). 608, An 1991), “say Borg, it 60 F.3d ground could however, is, error of law an abuse of dis- immunity decision government’s States, in v. to constitute an cretion. Koon United U.S. capricious so [wa]s 100, 2035, factfinding pro 116 S.Ct. 135 L.Ed.2d 392 distortion of the tentional (1996) (citing & Gell v. Hartmarx judicial intervention.” Cooter cess that warrants 384, 405, 110 S.Ct. request Corp., for an evi U.S. It then denied Smith’s (1990)). The district it that a 110 L.Ed.2d 359 dentiary hearing because bеlieved findings no court’s of fact are reviewed for be futile and would serve hearing would Calderon, clear error. Bonin v. 59 F.3d Edmonds’s refusal to testi purpose given (9th Cir.1995). words, that in the absence fy other —in (which exculpatory had advised Edmonds prosecution IV. execution), it to seek his would cause it Although the district court stated that to overcome the would be unable questioned adequacy Oregon’s post- appeals now procedural default. Smith if, procedures post- conviction as the state rulings. procedural default district court’s held, newly conviction court discovered ev- jurisdiction under 28 U.S.C. We have idence of actual innocence could not serve § 2253. post-conviction for relief in Ore- as basis decide those gon, it declined to whether III. inadequate were in fact be- procedures case filed after petition not, cause concluded 24, 1996, governed therefore April and is of Edmonds’s testimo- least the absence by the Antiterrorism and Effective Death actually innocent. ny, establish that he was (AEDPA), § 2254. Penalty Act 28 U.S.C. court, We, not decide like the district need Garceau, 202, 210, 538 U.S. Woodford opposite an question, although (2003). 1398, 123 155 L.Ed.2d 363 S.Ct. is conclude that even there reason. We An court reviews de novo the appellate has, default, given procedural deny a habeas district court’s decision below, reach made the determinations we 1007, Ayers, Hunter v. 336 F.3d petition. innocence nec- requisite showing of actual (9th Cir.2003). court also re- 1011 This his claims heard on the essary to have novo a district court’s decision to views de merits.5 proce- for corpus petition dismiss a habeas Foster, normally 224 A must ex Manning prisoner v. state dural default. (9th Cir.2000). before a 1129, haust his available state remedies 1132 The dis- F.3d may petition his AEDPA federal court consider interpretation trict court’s of 28 U.S.C. corpus. a writ of habeas governing grant standards or denial 509, 2254(b); Dandy, 455 § Rose v. U.S. evidentiary hearing an is reviewed de (1982). Ducharme, 1075, 515, 1198, 379 novo, 102 71 L.Ed.2d Baja v. 187 F.3d S.Ct. (9th if a Cir.1999), has held Supreme ultimate denial The Court 1077 and its reason, during post-conviction claims the state we need not reach the tional 5. For the same question a fair process. whether Smith was denied present opportunity his federal constitu- 812 (1991), 2546, 115 L.Ed.2d 640 which occurs to exhaust state failed

“petitioner [has] proba- peti- a “constitutional violation has court to which the when remedies and the bly his in the conviction of one who is required present resulted tioner would be that is the actually to meet the exhaustion innocent” of offense claims order subject Murray, find the claims claim. 477 requirement would now of the barred barred,”6 pro- 496, 2639; his claims are at 106 S.Ct. see also procedurally U.S. 324, cedurally purposes defaulted for of federal 115 Schlup, 513 U.S. at S.Ct. 851. Thompson, Coleman v. review. has Supreme habeas Court described 1, 2546, 722, n. 111 S.Ct. 115 501 U.S. 735 showing “gate- of “actual innocence” as (1991). A can over- petitioner L.Ed.2d 640 way” that allows the court to consider procedural default and obtain federal come claims of procedurally otherwise defaulted merits of his claims either review of the Schlup, 513 constitutional error. See U.S. actual inno- demonstrating evidence of (1995). 315-16, Schlup 115 A at S.Ct. 851 the defendant bring cence sufficient subject inquiry “actual innocence” to a ... im- “narrow class of cases within the stringent less standard than substantive miscarriage jus- fundamental plicating a Carriger “actual innоcence” claim. See v. 315, tice,” 513 115 Schlup, U.S. S.Ct. (9th Cir.1997) Stewart, 463, 476 132 F.3d Zant, (quoting McCleskey v. 499 U.S. 851 (en banc) (suggesting peti- that “a habeas 494, 1454, S.Ct. 113 L.Ed.2d asserting freestanding tioner innocence (1991)) (internal omitted), marks quotation go beyond demonstrating claim must by making “adequate showing an guilt, about his and must affirma- doubt Greene, v. prejudice,” cause and Strickler innocent”). tively probably that he is prove 263, 282, 1936, 144 119 S.Ct. U.S. passing through This is because (1999); Murray see also L.Ed.2d 286 only permits a Schlup gateway federal Carrier, 478, 485, 477 U.S. 106 S.Ct. underlying to review the constitu- court (1986). con- 91 L.Ed.2d 397 Because we claims; Schlup tional does not entitle a light procedural of our deter- clude defendant to a declaration of actual inno- minations, showing Smith has made a any outright. cence or to relief Under actual innocence sufficient to overcome “a that it Schlup, petitioner must show all procedural respect default with of his likely than not that no more reasonable regarding murder convic- claims guilty would have found [him] be- tion, unnecessary find it to decide yond Schlup, a reasonable doubt.” could also make the alter- whether Smith determining U.S. at 115 S.Ct. 851. In showing prejudice of cause native met, showing whether this has been respect to certain of them. may habeas court consider “all the evi- dence,” tri- including evidence excluded at

A. al, illegally, only admitted or af- available 328, procedural default on his ter the trial. Id. at 115 S.Ct. 851. To if pass through procedural gateway, constitutional claims will be excused can “demonstrate that failure to consider does not need to “show that he is Smith ‘actually the claims result in a fundamental innocent’ of the crime he was will instead, justice,” miscarriage committing; Coleman v. convicted of he must 722, 750, Thompson, 501 U.S. 111 S.Ct. show that ‘a court cannot have confidence case, longer filing petitions post-conviction In Smith’s he is no able to for relief. See claims, given obtain state review of his Ore- 138.510 (2003). § Or. Stat. Rev. gon’s procedural regarding bar time limits for

813 ” in Majoy guilt light trial.’ v. a reasonable doubt as to his of the in the outcome (9th Cir.2002) record, in the court 770, of the evidence district Roe, 776 296 F.3d affidavits, 316, including supporting 115 S.Ct. Schlup, 513 U.S. (quoting his affirmative defense. See Jammillo v. 851). conviction was Although here the (9th Cir.2003) Stewart, 877, 340 F.3d jury a guilty rather than upon plea a (demonstrating use of affirmative defense verdict, in is the same either inquiry analysis). “actual Schlup’s innocence” have confidence that case: can we trial, required At have Smith would been of which committed the offense petitioner only by affirmative prove his defense he was convicted? preponderance of the evidence. See State recently Supreme Court reaffirmed Counts, 616, 622, 311 Or. 816 P.2d 1157 “actual inno viability Schlup (1991). Therefore, pass through —Bell, in House v. U.S. gateway cence” Schlup “gateway,” Smith must demon- (2006). -, 165 L.Ed.2d S.Ct. likely that it is more than not strate House, that “the emphasized In the Court juror that no would have found reasonable require does not absolute Schlup standard that he had failed to establish the elements or certainty ‍‌​​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‌​​​​​‌‌​​​​​​​‌‌‌‌​​​​​‌​​‍petitioner’s guilt about by a preponder- of the affirmative defense innocence,” requires only rather that a but ance the evidence. it is “more demonstrate petitioner In order to establish an affirmative any juror would likely than not reasonable murder, felony defense to Smith must guilt. regarding doubt” have reasonable so, show that he: doing at 2077. the Cоurt also Id. (a) AEDPA

rejected any suggestion that only participant not the Was crime; replaced Schlup standard with underlying “ha[d] test,” holding id. at instead (b) stricter Did not commit the homicidal act or inap that AEDPA’s standard of review is command, solicit, any way request, petition federal habeas plicable to “a first importune, cause or aid the commis- claims seeking consideration of defaulted thereof; sion innocence,” showing of actual based on (c) or dangerous not armed with Was id. deadly weapon; (d) ground Had no reasonable to believe charged Smith with felo The state any participant other was armed burgla committed a ny murder because he deadly weapon; and dangerous with a killing occurred ry robbery, and a and a (e) ground to believe Had no reasonable commission of those acts.7 Or during the any participant other intended prove an affir egon allows a defendant to likely to result engage in conduct innocence of mative defense to establish death. REV. S TAT. murder. OR. 163.115(3). 163.115(3) (2003). dispute § does not The state § satisfies ele- has established the first requirement actual innocence Schlup’s is over the last disagreement than not ment. The it is more he shows below, because the explain have had four. As we reasonable Here, States, have a determination that cannot Bousley 523 U.S. v. United 1604, (1998), L.Ed.2d 828 also re- S.Ct. 140 confidence in his murder conviction quires prove Schlup Smith to his claim finding necessarily imply the same of charge regard aggravated murder fore- to the regard to the more "actual innocence” with plea gone by the state as result by foregone the state. serious crimes 624, agreement. See id. at 118 S.Ct. 1604. 814 juror would have deprived of not that no reasonable misconduct Smith

prosecutor’s testimony, found that Smith killed Konzelman. Ed- we benefit of confessing that to true recantations affidavits monds’s presume Edmonds’s Konzelman, kill which we determining of whether Smith did not purposes for pro- of this procedurally presume purposes barred to be true for Smith Affording testimony court. that of ceeding analysis, federal combined with the Konzelman, to 17742 Edmonds’s recanta- presumption which corroborates such Mrs. tions, present- conclude that has respect, we Smith than one recantations more it Bouse, evidence to make more physical ed sufficient evi- and any that likely than not reasonable dence lead to the conclusion Ed- all five that he has satisfied monds, would conclude Smith, the killer.8 and not the affirmative defense to felo- elements of Although explicitly has never by of the evi- ny preponderance murder murder, that he committed the confessed dence, “actually innocent” and he is not kill he has twice sworn Smith did Thus, Schlup. may purposes for affidavit, Konzelman. In his latest he said his substantive claims present habeas neither struck Konzelman nor court. the district bedroom, “entered the Konzleman’s [sic] element, killing where the occurred.”9 Given Mrs. As to the second the evidence testimony that the attacker it is more than Konzelman’s demonstrates that, just years date evidence is nonetheless excluded at trial when 8. The fact three after the against plea agreement, of his Edmonds committed offered criminal defendant because burglary, kidnapping, rape, highly prejudicial residential and its admission support also tends to the conclusion that Ed- would create a risk that the defendant monds, Smith, the killer in the in- beyond a be convicted on less than evidence course, 180-82, stant case. Of if Edmonds were on reasonable doubt. Id. at 117 S.Ct. trial, the introduction of this "bad act" evi- 644. Because there is no such risk to prove guilt to his would be unfair to dence case, person in this consideration Ed- certainly him and would almost violate the only permitted monds’s bad acts is not under pro- Federal Rules of Evidence. This habeas Schlup, ratio- but also makes sense under the however, Smith, ceeding, concerns not Ed- nale of Old Chief. monds, ignoring this evidence would prove prejudice Smith in his effort to his argues 9. The dissent that Edmonds's affida- AEDPA, innocence. On habeas review under "internally plainly vits are inconsistent evidence, may consider such which was op. inconsistent with each other.” Dis. at trial,” “unavailable at without re- [Smith’s] language 842. The cited the dissent is gard admissibility to "the rules of that would taken out of context. Edmonds stated in his govern Schlup, at a at trial.” 513 U.S. 327- stating explicitly first recantation —after 28, (expressly permitting 115 S.Ct. 851 con- perjury, that he had committed Smith did not evidence that was "excluded” or sideration of Konzelman, attempting kill and that he was admitted”). "alleged illegally to have been straight” "set the record rea- "[t]he —that lied under oath was because States, son[he] [his] The dissent cites Old v. United Chief attorney Roger ... led to believe that 172, 180-82, 644, [him] U.S. 117 S.Ct. 136 testify [him] Smith was about to and leave (1997), against dan- L.Ed.2d 574 warn do a sentence a crime he did not life gers propensity op. at evidence. Dis. however, unequivocal commit.” Given the nature of Chief, n.17. Old describes "bad act” "relevant,” every relating guilt other statement in the "logically persua- evidence as ... affidavit, sive,” 180-81, confusing statement could have "probative.” 519 U.S. (quoting resulted either from Edmonds’s characteriza- S.Ct. 644 United States v. Moc- cia, (1st Cir.1982) attorney's tion of defense advice (Breyer, 681 F.2d J.); States, fact that he swore out his first Michelson v. United 335 U.S. affidavit with- 475-76, (1948)). attorney's supervision out the benefit of an 69 S.Ct. 93 L.Ed. 168 relevant, explains probative help clarify It then that this him his statements. In contrast only person the at- garage struck her husband was while the or how who he and tacker in the bedroom at the time—as the Smith went parents’ house doorway briefly burglar other stood the incident, shortly after the descrip- these hall-—the and then continued down the only present tions show that he was when drawn, as- only reasonable inference be the crime occurred and are irrelevant credible, suming Edmonds’s affidavit to be question whether he or Smith commit- is that Edmonds was the killer. Even the ted the murder in the Konzelmans’ bed- acknowledged this inference when it state room.11 implicitly stated that “Edmonds has admit- physical evidence of blood near Ed- he, [Smith], ted that rather than was the monds’s area in provides the truck killer, directly though] has never [even strong support for the conclusion that he admitted as much.” It was the killer. is clear from the record Further, initial account of person that Edmonds was the actually who implicating the murder Smith must be away drove the truck from the crime skepticism, viewed with considerable even scene. The state crime found lab blood from the presumption aside truthfulness only on the of the truck that areas Ed- subsequent we afford his recantations. monds, driver, as the would have touched: pass polygraph Edmonds failed to ex- hood, part “the left front front required part plea amination as of his bar- door, part of the driver part back re- gain,10and the 17744 consideration he ignition the driver’s door and the area on in exchange placing ceived the blame the interior of the it appar- vehicle.” As on Smith was substantial. That consider- ent from the record that the scene was ation, observed, judge “argu- the district quite bloody, magistrate judge spec- Moreover, ably gave him incentive to lie.” ulated that the blood on the vehicle could subsequent the mere fact of a confession in Edmonds, explained by the fact that to a points itself raises doubt. The state cellmate, jail “may he told helped his have few instances which Edmonds’s initial bloody wipe down crowbar.” Particu- story is corroborated. it is true that While recantations, larly light of his such may Edmonds have been able to describe newspaper delivery credibility;12 how he avoided the statements Edmonds lack recantation, to his what first Edmonds’s second details of occurred in the bedroom. A second, non-attacking recantation does contain such confus- conclusion that burglar ing language provide could such de- even includes statement corroborated that is accurate tails of the murder would conflict with a more characterization Mrs. allegedly Konzelman's statement that she could inconsistent statement in falsely glimpse” burglar first recantation: 'T was motivated to catch a “brief of the second Thus, implicate my attorney "as he went down the Mr. Smith because trial hall.” so, by doing and others counseled I doubtful that Edmonds would have known the prosecution aggra- could details of the attacker’s with the avoid for murder or interaction vated murder." Konzelmans in bedroom unless he had duration, just pass- been there for the and not though polygraph may words, 10. Even evidence ing by other unless he was the —in law, Oregon be admissible at trial under actual attacker. may Schlup. consider this under evidence 12.The dissent contends that Edmonds’s state- Schlup, 513 U.S. at S.Ct. 851. ments to his cellmate Samuel Seaman were Further, the details about actual mur- consistent with the that Edmonds statements provide gave police support argu- der that was able and therefore explained by op. best be the fact that he was the ment that Smith was the killer. Dis. however, noted, would have should be that Sea- attacker therefore known It change clothing monds and did not wipe down the tire Smith only helped had he any point during night. at Edmonds iron, explain why all of the that would originally responsibility tried to evade area of the truck. up in his blood ended jacket, police found his Levi’s but the testimony regarding Konzehnan’s Mrs. lining, a or jacket, which had fleece wool man who attacked her the attire of the girlfriend. Although of his possession support tends to the conclu- husband also asserted, telling after earlier au- First, was the killer. sion that Edmonds otherwise, thorities that he had loaned his police that killer told Mrs. Konzelman Smith, jacket magistrate Levi’s stocking cap covering or had a skull factfinding judge who conducted incident, night of the Smith head. On claim, highly skeptical noting of this brim, possibly a the fedo- wore a hat with in a friend that he Edmonds had confided ra-style hat that was found outside the jacket had lent his to Smith “in an effort to house. Edmonds described Konzelmans’ jacket.” plaсe in that [Smith] “a all the “floppy” hat as brim Smith’s Third, testified that Mrs. Konzelman she it”; it an man way around he called “old gloves did not notice on the attacker. As hat,” hat,” gangster “golf an “old or a hat.” notes, entirely the dissent “it is not clear fedora, A or one of the hats Edmonds gloves.” op. who wore which Dis. at 831. described, would have had some sort of that he wore white latex Edmonds testified distinguished it from the hat brim gloves wore two black surgical while Smith Indeed, Konzelman described. Mrs. Mrs. agreed that gloves; leather Ed- specifically noted that the at- Konzelman gloves monds wore latex but claimed type a different of hat from tacker wore he, Smith, wore either one or two brown near Konzelman the fedora found No matter whose account gloves. leather Edmonds stated that he wore a home. credible, though, is more Mrs. Konzelman which, backwards, worn cap baseball would have been much more to fail easily resembling be seen as a skull or gloves to notice translucent latex than ei- stocking cap. opaque ther brown or black leather Second, Mrs. Konzelman testified that gloves particularly on a white attacker— — wearing light-colored the attacker was a support which tends to the conclusion that which, jacket, tags because the were show- Edmonds was the killer. turned out. Re- ing, appeared inside Contrary to the state’s contentions and futing suggestion the state’s that Smith magistrate judge’s findings, the re- jacket lining during with fleece

wore maining support evidence does not crime, Marlin Bouse—the co-defendant claim that was the For killer. ex- he, burglary who abandoned after Ed- jeans ample, simply because black were monds, initially and Smith entered the recovered from Smith’s house and Mrs. garage Konzelman’s that Ed- Konzelman stated the killer wore dark —testified jacket while monds wore Smith wore pants, or black it does not follow that sweatshirt, jeans which Bouse believed to be night Smith wore black on the burglary red.13 Bouse further testified that Ed- Smith was the killer.14 mans’, he, Smith, skeptical story man was also of Edmonds's and not who had way wearing jacket officers that "the been with a white [Edmonds] told Levi's trying lining. if] about it talk[ed] [was [was] up cover for himself.” 14. Mrs. Konzelman also stated in her inter- sentencing police pants Edmonds testified view with that she believed the hearing they got pants, jeans. that when to the Konzel- were more like dress Indeed, nothing there unusual had about she seen hit her husband. Such state- pair jeans of dark ments would seem to having one’s house. contradict her earlier Moreover, person statements that the contrary magistrate yelling to the into the phone was not contention, Any the attacker. the code evidence judge’s names— regarding the use of code appears names and “Low”—attributed to “High” Smith respect inconclusive with identity to the do not that and Edmonds demonstrate her husband’s assailant.15 Smith was the killer. Mrs. Konzelman that police person told the voice of the Finally, if Edmonds’s recantations are yelling phone “Low” into the in the other credible, deemed presume we them to probably room was not the voice of the be, his testimony necessarily initial false point killer. It is true that at one Ed- points the extent that it to Smith and monds claimed that his code name was killer, not himself as the actual and lacks therefore, “High”; magistrate judge any force in countеring the other available that it reasoned must have been Edmonds Assuming evidence.16 Edmonds’s recanta- credible, called out But who “Low” to Smith. Ed- tions to be evidence available that it “High” likely monds’s claim that he was should shows is more than not that no juror reasonable skepticism, given be viewed with have found that his later the second element the affirmative de- testimony sentencing at the hearing fense—that Smith was not the actual kill- could not he “recall what the code was” er'—-hadnot been established. fact responded and the that he affirmative- ly question to the whether his code name As to the third factor of the affirmative “High” only and Smith’s “Low” after defense —whether Smith was armed with a being told about Mrs. Konzelman’s state- dangerous deadly weapon or is no —there Furthermore, maintaining ment. while suggest anyone evidence to than other person jerked that the who out the tele- the killer was so armed. Because the phone cord person same whom she evidence discussed above demonstrates yelling had heard into phone, Mrs. likely that it is more than every not that Konzelman told detectives in a later juror inter- reasonable would find that Edmonds jerked person view who out the only person was the inside the Konzel- killer, telephone person cord was the same whom mans’ bedroom17 and was the actual dissent, credible, light Like the we understand that Mrs. of the other available evi- Further, during parts Konzelman was confused of her dence. because Edmonds’s various Nevertheless, testimony. parts certain of her descriptions provided by of the incident —as testimony unequivocally point are clear and prior testimony to his recantations— Edmonds, Smith, as the attacker. consistent, always are not factfinder would be forced to choose the elements of his crediting 16. The dissent criticizes us for Ed- story that it found credible and those that it monds’s statements when it is conve- not; suggestion did the dissent’s that must op. nient. See dis. at 841-42. To the extent credibility testimony either afford full to his that Edmonds has recanted his earlier testi- or none at all creates an unreasonable and attacker, mony that Smith was the actual it is unrealistic choice. true that we have deemed the earlier testimo- ny testimony not credible and his later truth- rope just 17.Because was found to the "left preclude ful. Such a does conclusion us door,” likely dropped of the bedroom evaluating testimony given by other Ed- rope paused briefly when he in the bed- monds—such as what the two of them were murder, doorway room before he wearing continued down night on the or where Therefore, the hall. the fact that Smith was respect were with to one another once carrying rope does not en- inside the house—and the extent to which a mean jury likely would be to find such tered the Konzelmans’ bedroom and can be complete, waiting it is more attaek was after follows logically not armed and period than not that Smith was to make sure that the intruders found would have Finally, that no reasonable from the house. there gone were contrary. to the in- suggesting is no evidence that either rope, let truder “threatened” to use cannot argues dissent to use it in a manner alone threatened of the affirmative de- satisfy this element “readily capable causing death seri- carrying admitted to because he fense Indeed, injury.” physical ous Mrs. Kon- Dis. into the Konzelman residence. rope any unequivocally zelman denied that 846-47, argument This is op. at 851-52. following in threats were made ex- by our crea- hemp concocted out of whole with the change detectives: wisely dissenting colleague. The state tive a rope contend that the dan- does not Q: something There mentioned gerous deadly weapon; nor does Ore- or rope. about a a contention. gon support law such Under floor, rope A: a on There was there law, “dangerous weapon” a is de- Oregon They but I didn’t see them. didn’t do device, instrument, “any weapon, fined as anything with it. material or substance which under the cir- he, Q: Did did he threaten to tie OK. used, in it attempted cumstances which is you up or anything? used, or threatened to be is to be used A: No. readily causing death or serious capable Q: say anything Did he about he “deadly physical injury” weapon” and a would, anything you at all? instrument, “any article or defined as sub- specifically designed pres- stance I you. A: Not that can tell ently capable causing death or serious Q: was, thought There I OK. injury.” physical Or. Rev. Stat. maybe some statements were made ear- 161.015(1) (2003). (2) §§ & There is no saying something lier about about roll- suggesting rope that the evidence ing you you up. over so he could tie qualified provi- case under either of these A: No. it Certainly “specifically sions. was not any The record could not be clearer designed” purpose causing for the death used, question whether the at- intruders injury. physical any or serious Nor does use, tempted to or threatened to use the suggest evidence in the record rope plainly, they did not.18 — “attempted or rope was “used” to be used” law, during Oregon question the commission of the Under whether offense-Mrs. object an dangerous weapon Konzelman testified that she first is a turns saw rope got entirely when she out of after on the bed circumstances which it is cord, reconciled with both Mrs. tied” Konzelman’s recol- him around the neck with a which only the lection that attacker was in the bed- asphyxiated opinion him. Id. at 396. The recantation, room and Edmonds's second says rope anot word about whether a or cord which he stated that Smith never entered the to, dangerous weapon is a had no need —it bedroom. dangerous weapon because the use of a is not felony Oregon, only an element of murder in Still, Cornell, the dissent cites State v. an element of the defense. See affirmative Or. (1992) banc), (in Or. 842 P.2d 394 as Stat. § 163.115. The defendant in Cor- support rope for its conclusion that the Rev. nell, however, Cornell, had not raised the affirmative dangerous weapon. carried was a defense, Oregon Supreme upheld Court and thus the court had no need to of a murder conviction defendant who stuffed question consider the in that case. paper "hog- toilet into his victim's mouth and used, used, burglars or threatened ran and out of the house due attempted to be unexpected in certain noises and left several to be used. No one doubts items behind, circumstances, including money can be used to as- Mr. Konzelman’s rope is, qualifies suggests, contrary it phyxiate, and that when the dis- wallet — realization, assertions, 845-46, sent’s see dangerous weapon. op. This dis. however, concluding burglars’ that the very planning different from would nоt have Oregon’s in this case met included a debate as to whether rope dangerous weapon. It most should arm themselves or discussion definition of carry weapon, The cases the dissent as to who would certainly did not. its conclu- that a would not be to credit cites show how far off-the-mark pair organized to cases such an or really points sion is. The dissent detailed boots, cowboy finding opener, planning. that a can level deadly weap- can a concrete sidewalk disputed It is not that the crowbar came depends it all on the circum- Again, on. from in ga- somewhere the Konzelmans’ stomp someone to stance—if used to rage. argued The state has never death, cowboy might boots meet the statu- brought either Smith or it Edmonds definition; tory simply if worn while en- him and Mrs. Konzelman testified that the fatal the boots would gaged fight, in a fist in crowbar used the attack was one that dangerous weapon. not constitute a The frequently she and her husband used and rope begins and ends with the issue they kept garage. in the The district use, use, attempt fact that Smith did not to opinion acknowledges court that “[b]oth way, in alone any or threaten to use it let garage and the interior of the house way might in a death or serious cause were dark and [Smith when Edmonds] injury. entered, might so not if Smith have noticed carrying affirmative Edmonds was a dark-colored The fourth element of the Indeed, ... requires defense Smith to show that he crowbar. Edmonds claimed ground had “no reasonable to believe that he was unaware of the crowbar until he any armed with a first it in hands in the bed- participant other saw deadly subsequent The dis- room.” The district court’s dangerous weapon.” acknowledged might trict court at the out- observation that converse also “[t]he true, set, reversing is probably and Edmonds did not have been Smith Otherwise, roles,” by kill Edmonds’s re- supported intend to the Konzelmans. concluded, cantations, identify him and not it “there would be no need to which disguise speak to in code as the actual attacker. Under those [or] themselves Smith circumstances, names, they expected unless the Konzel- it would have been Smith capa- the intrusion and be who was unaware that Edmonds was mans survive Furthermore, district giving police.” ble of an account to the armed.19 as the noted, Further, in different haphazard unplanned na- court the two men were of the time.20 burglary during parts ture of the which the of the house for most — testimony provided, the three first 20. Like much of the Ed- 19. Bouse testified that when entered, while monds's as to how and when Smith went into house garage, two men entered the house is unclear. Edmonds searched the and Edmonds during accounts the dissent refers to in which Ed- testified that the time that he and exploring garage, they suggested that and Smith entered Smith were both monds op. searching together precise. dis. at separate parts of it. There- are far from See were likely are unclear as to fore that Edmonds found the crow- 848 n. Such accounts time, knowledge. whether the two entered at the same so bar without Smith’s holding ground not to believe that Edmonds had apparently was The attacker immediately prior view when the second armed himself to enter- plain crowbar room, as Mrs. Kon- passed by the the house. ing intruder anything in the attack- did not see zelman of the affirmative de- The last element up the crowbar piсked hands until he er’s requires to show that it is fense just attacking her ground prior likely more than not that he had no rea- present when husband.21 Smith ground to believe that Edmonds sonable Konzelman, as evidenced Edmonds struck engage likely in conduct intended statements about Mrs. Konzelman’s supra, it is result death. As discussed According to Mrs. Konzel- lone attacker. more than not Smith was man, from the burglar the second “came picked up aware that Edmonds had den, hall, stopped up through and was armed. The evidence crowbar for me to see his long enough the door sup- that conclusion supporting would also out,”22 sometime be- bandanna and headed port the conclusion that had no rea- up the picked fore Edmonds crowbar son to believe Edmonds intended to struck victim. This version of events anything burglarize other than do more support finds further prior house. Edmonds himself stated that asserting affidavit that Smith never recent house, entering there had never “I entered the bedroom: know Mr. any him been discussion between bludgeon or otherwise Smith did not strike hitting anyone or using Smith about and I know that Mr. Mr. Konzleman [sic] anyone. In a weapon deposi- kind Smith never entered the Konzleman’s [sic] tion, respect kill- Smith stated to the killing bedroom where the occurred.” ing of Mr. Konzelman that “I didn’t know sum, to precisely the evidence as what going to do it.” [Edmonds] in in garage occurred and the house is The district court never found that Ed- element, far from clear. As with the third planned engage any monds and Smith to in however, having decided that it is more doing violent conduct or even discussed so. likely than not that Edmonds was the kill- Rather, it reasoned that because Edmonds found, carried, person er and who thus and were aware that Smith the Konzel- crowbar, assuming used home, recantations, they mans were should each have truthfulness of Edmonds’s conclude, close, robbery might been aware that the result although this issue is residents, in confrontation with the any that reasonable would have de- preponderance they termined that a of the evi- that therefore each had reason to no engage dence shows that Smith had reasonable believe that would in conduct events, may that each could observe what the other the fact that version Mrs. Konzel- holding, suggest have been do not man' —a neutral witness —"recalled the killer they kept picking track of one another’s whereabouts the crowbar off the floor before strik- ing while in the house. the blows” and that "he had not been carrying the crowbar around in his hand” According testimony, to Edmonds's initial suggests that Edmonds was the one he first saw the crowbar in Smith’s hands handling weapon, but also that Smith was both he and when Smith entered the Konzel- armed, never aware that Edmonds was either together. supra, mans’ bedroom As noted seeing before or after Edmonds in the Konzel- story, Edmonds's version of the insofar as it paused by mans’ bedroom when he the door- killer, places Smith as the is discredited his way. Further, subsequent although recantations. possible may County is that Edmonds have reversed told a Linn detective that providing original his and Smith’s roles in both he and Smith wore bandannas as masks. significantly greater harm than is disagree typical in likely to result death. We robbery likely robbery” to for the crime of and the defen residential generic felony there are especially acquitted in when dant was murder after result death — and, defense); in viоlent conduct affirmative plans engage raising no same cf. Dickerson, weapons no on hand knowledge, Or.App. State (1992) (in to do so.23 with which P.2d which the defen dant was found to have reasonable in correct con If the district court were in grounds participant believe another burglary is any residential cluding crime in conduct engage intended simply in death because likely to result likely to result in death based on conversa possibility one can foresee remote partici tions defendant had with other occurring possibility such as the death pants about “how to handle the situation” startled, and might a “resident awaken kill and the decision to the victim “to en that a “[f]a a fatal heart attack” or suffer silence”). Indeed, if sure her the commis might] police occur when or accident[ tal attempted any commission of sion racing are to the ambulance crews 163.115(l)(b) in listed felonies section defense — affirmative scene”—then arson, assault, and which include rob every case of felo inapplicable would be bery -automatically constituted conduct reasoning court’s ny murder. The district — death, likely to result one would assume effectively the affirmative would foreclose not have made the af Oregon committed, anyone or even defense to who at all for firmative defense available such commit, any of the ten of attempted to charges. Because it cannot be assumed qualify felony murder. See fenses that robbery likely to 163.115(l)(b) (2003). generic result § Ad Or. Rev. Stat. the evidence in this case rebuts death and ditionally, “likely” Oregon’s the term claim that had reasonable cause murder im affirmative defense robbery was particular to believe that this merely than a stronger possibility plies so, than See, Watkins, likely to do has more e.g., one.24 State v. remote (1997) of 107, not the fifth and final element 338, 109 satisfied Or.App. 146 932 P.2d (in “a affirmative defense.25 a victim’s death was deemed the which however, Florida, 782, definition, robbery every included in Enmund v. 458 U.S. 799- 23.See 800, 3368, (1982) report of crimes to which the S.Ct. 73 L.Ed.2d 1140 the FBI set 102 —the per (noting "only figure applies about of one the use or that one-half 0.22% —involves putting homicide” and vic- result[] cent of robberies in or violence or the threat of force "killings only rarely during occur robber Crime the United States tim in fear. See ies”). Although Burglaries, Enmund's data are some which are definition outdated, support confrontational, data our what more recent are not included in less Using the same data conclusion as well. turn into rob- Report’s statistics unless Supreme beries, in En that the Court used source as in the crime involved in such (with data), updated and the same mund case. Enmund, methodology, 458 U.S. at 800 n. see 3368, that "[t]he district court conceded 24. The data 2005 show that 102 S.Ct. from (0.22%) give pause,” but likely does some failed percent word quarter of one less than one require stronger than a theoretical a nexus robberies result in homicides. See U.S. of all Justice, possibility. Investiga Dep’t of Federal Bureau tion, Crime in the United States 2005. otherwise, again concluding the dissent opines that these statistics are In The dissent Cornell, refined,” 842 P.2d 314 Or. "sufficiently proper cites State and that Supreme Oregon Court in which the probability that a bur- measure of risk is the a de- upheld felony murder conviction of “might glary turn confrontational” will "hog-tie” By used a cord op. at n. 52. fendant who in death. Dis. result conсlusion, killer, is the actual but that Smith reaching opposite likely than not” that a successfully passed through Schlup’s it is not “more has juror find all five gateway would “actual innocence” and is entitled reasonable had hearing elements of the affirmative defense on the merits his constitu- met, the dissent makes the mistake been tional claims. Schlup analysis exactly approaching applied as we stated it should B. ... agree do not that our Carriger: “We analysis To the extent that our relies on Schlup hypo- is to decide how test under recanta- truthfulness jury regard each bit of new

thetical would tions, question there remains the of his at 474 n. 4. Carriger, evidence.” F.3d circumstances, credibility. other Under Instead, held, task Schlup, “[o]ur we under might evidentiary remand for an hear- in the is to determine whether confidence ing to allow the district court to assess the actual verdict is undermined.” Id. The trustworthiness of Edmonds’s more recent test, Schlup dissent misconstrues Jaramillo, statements. See 340 F.3d at ultimately only that requires which (holding presented that new evidence likely demonstrate that it is more than not would, credible, by petitioner be suffi- juror any reasonable would find that support cient to of actual inno- finding had of the affir- satisfied elements remanding evidentiary cence and for an felony by pre- mative defense to murder hearing for court to make neces- or, ponderance other evidence— determinations). sary credibility cir- words, greater there is a 51% or here, however, cumstances are not condu- any juror chance that would reasonable case, cive to such a remand. In this due to that the conclude affirmative defense had prosecution’s pursue capital threats to analy- been met this case. Because an him, charges against Edmonds has refused sis of all of the evidence now before the testify, being promised even after im- particularly court—and Edmonds’s recan- (if munity perjury likely tations —would more than he testifies as the not lead wishes). juror prosecution regarding reasonable to believe that Smith The facts guilty prosecution’s was not of the crime of mur- conduct all have been der, and, we hold not that Edmonds rather than established in the record26 as the asphyxiate his victim. The dissent asserts means that it was that one of them very likely Contrary that "a reasonable would die. tion, to the dissent's asser- brought hands, feet, rope conclude that Smith tying into the body or even of contemplated purpose using house person likely another is not to result in death. argues it to restrain the victims” and fact that The the defendant in Cornell tied his supports "[tjying Cornell the conclusion that stuffing victim around the neck after toilet up highly dangerous victims conduct that is mouth, paper into his and that this extraordi- likely op. to result in death.” Dis. at 851 death, nary action caused does not even come Therefore, added). (emphasis argument supporting close to the conclusion that Smith goes, Smith must have known that death was likely had reason to believe that death was to likely to result from his and Edmonds's rob- rope ensue if he used the to restrain the

bery. argument The dissent's two lev- fails on Konzelmans. First, els. even if reasonable did following 26. The district court made the find- "contemplated” using conclude that Smith ings: Konzelmans, County prosecutor's "The Linn office rope to restrain the this is ... warned Edmond’s counsel that the cry concluding likely [sic] far from that it was Second, attorney penalty district would he would seek the death restrain them. and more he, Smith, important, even if if Edmonds testified that and not it was that Smith Konzelmans, hardly actually would restrain the killed Emmett Konzelman. On the

823 recognized, hearing prosecution’s promise a further even after the district court so, We must now purpose.27 immunity would serve no if he would do is that “if consider, then, prosecution whether testify Edmonds did truthfully, he would substantially engaged in misconduct say that not kill Smith did Emmitt [sic] to with Smith’s efforts establish interfered Konzelman, and implicate himself as the so, and, if claim what the reme- Schlup his killer.”

dy should be. Threatening potential witness for the prose defense with execution constitutes Misconduct Prosecutorial cutorial misconduct far more coercive than effectively prosecution prevented The present any reported case of which testifying by threatening from to Edmonds are aware. The cases in which courts charges capital against institute murder have prosecution’s considered the threats specifically, put as the district court him— charge perjury witnesses with or other it, penalty” he testi- to “seek the death —if offenses, criminal all have involved the fied in a manner that was consistent with possibility of far less punishment. serious two affidavits. The state also offered See, e.g., Vavages, United States v. perjury him from if he to immunize (9th 1185, 1188, Cir.1998); F.3d Unit testify withdraw his recantations Lord, 887, 889, ed States F.2d the killer. Due to the drastic Smith was (9th Cir.1983); see also United States v. nature and the unusual character (3d Morrison, 223, 225, 535 F.2d 228-29 and, specifically, threats due prosecution’s Cir.1976). Here, prosecution’s unprec to the state’s declaration of its intentions penalty edented threat to seek the death subject him death penalty, to the Ed- against Edmonds he testified that Smith understandably invoked his Fifth monds unquestionably was not the killer was co and refused to testi- privilege Amendment ercive and constituted substantial interfer fy relating and all to the about facts ence with Edmonds’s decision whether to Konzelman, murder of even—as the dis- Omoski, testify. Earp v. 431 F.3d trict court notes—after he received the Cf. (9th Cir.2005) (“It 1158, 1170 estab well immunity offer of if he testified state’s government lished that ‘substantial inter against prejudicial effect of Smith. free and ference with defense’s witness’s starkly the state’s actions is demonstrated testify to a unhampered choice to amounts finding the district court’s that “[a] ”) process.’ (citing Vavag violation of due logical inference” from Edmonds’s refusal 1188).28 desired, es, 151 F.3d at testify the manner the state hand, dentiary hearing regarding if Edmonds withdrew that affida- actual innocence other killer, hearing Schlup. A vit and testified that Smith was the under more limited credibility agreed give immunity determine of Edmonds's State Edmonds charges (allegedly) filing exculpatory equally a false affidavit. statements would be counsel, conferring pointless. Edmonds would have all the same After with his testify ground testify regardless scope on the an- reasons not to refused to hearing, testimony might his swers incriminate him.” and without hearing avail. either future would be no 27. The district court found that to hold an reject argument evidentiary hearing pointless a ex- 28. We the dissent's that the “would be suggestion pro- long testify.” prosecution’s court ercise so as Edmonds refuses to vide counsel demonstrates that Given that Edmonds's Edmonds with innocence, lay seeking but to a only claims of it was nоt to silence him relevant to Smith's op. evidentiary hearing prosecuting him. Dis. at it that the to foundation for is most Certainly prosecution was aware which the district court referred was an evi- 836-37. 824 repeatedly insists that stantial” and whether affected wit-

The dissent testify.29 v. evidentiary an hear ness’s decision to Williams remand for we should Cf. (9th 567, prosecu Woodford, 384 F.3d 601-02 Cir. ing question on the whether 2004) (“Undue See, e.g., prosecutorial intentional. interference tor’s misconduct testify There is no cause for such a defense witness’s decision to op. dis. at 840. prosecution ‍‌​​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‌​​​​​‌‌​​​​​​​‌‌‌‌​​​​​‌​​‍or in this case. The “intent” to arises when intimidates hearing a discourage refers is the intent to harasses the witness to the wit- which the dissent by from testify particu testifying, example, not to a ness for cause a witness testify threatening prosecution or not to at all. See witness with lar manner Lord, or The prosecution perjury 711 F.2d at 891. The other offenses.... refusing prosecution’s Edmonds into to conduct must amount to a here intimidated gravest a threat of the substantial interference with the defense testify by making nature, clearly unhampered free and determina- improper, a threat that was witness’s prosecution’s prior testify de tion to before the conduct violates especially given the appro right process.”); case that an the defendant’s to due termination (“A at priate punishment Vavages, for the actual killer was 151 F.3d 1189 defendant’s years rights implicated only life. In cases in which the constitutional are 30 to intimidation, harassment, prosecutor judge employs or coercion of a when the or trial evident, issue; intimidating intent is not at or language witness is coercive tactics rather, substantially under our prior the issue cases has interfere with a defense testify.”).30 been whether the interference was “sub- decision whether witnesses] interview”). appointed greatly personal defense counsel would Cases in which the goal' appointed prosecution merely aid its efforts achieve its immunity poten denies — certainly witnesses, contrast, counsel almost would advise Ed- typically tial defense monds that he would run a substantial risk of require evidentiary hearings do remand for testified, receiving capital sentence if he See, prosecutorial e.g., determine intent. affidavits, consistent that Smith was 944, Young, United States v. 86 F.3d 946-49 might not the killer. Counsel even advise (9th 1996) (remanding evidentiary Cir. for an argues, as the dissent now hearing prosecution on intent where the appointment necessary pre- counsel’s granted immunity plea agree or favorable liminary step to Edmonds’s execution. prosecution ments witnesses but withheld witness); immunity potential defense coercion, separate In cases of threat or no Westerdahl, United States v. 945 F.2d showing and additional of intent has been (9th Cir.1991) (same); Virgin v. Islands required. prosecution's affirmative Cir.1980) Smith, (3d (re 615 F.2d ma case, prosecution's acts—in this threat to nding prosecution where the im withheld against penally seek death Edmonds—(cid:127) munity important potential from an defense inherently requisite demonstrate the intent. witness). prose Cases in which the record of See, (remand e.g., Earp, F.3d at 1168-71 may require cutorial conduct is unclear also intent, ing prosecutorial not to determine but See, Lord, e.g., remand for clarification. credibility to evaluate the of affidavits (remanding F.2d at 891-92 for "further clari alleging prosecutоr that the had threatened a prosecutor's pre-trial fication of the com witness); potential Vavages, defense 151 F.3d witness). potential ments” to defense There (reversing 1190-93 a conviction here, however, is no need for a remand as the evidentiary hearing without an where the prosecution indisputably took affirmative prosecutor potential threatened a defense wit steps testify to cause Edmonds not to in the perjury charges ness with and the withdrawal manner set forth in his affidavits. plea agreement prosecu of a in an unrelated Morrison, tion); (revers 535 F.2d at 225-29 argues ing The dissent that we cannot look to evidentiary a conviction without an hear Vavages ing prosecutor repeated United States because Smith cited where the made warnings potential threats and to a defense instead our decision in United States v. Wester- dahl, witness, culminating "highly intimidating represent ain and the two cases doctrines contrast, In it him executed. informed sum, have ordered a remand In our cases showing him that if he his recantations necessary to make a withdrew only where Lord, 890; intent, given in accordance its see 711 F.2d and testified with case involved, Smith, such him against provide conduct no it would with prosecutorial required immunity Interestingly, here. showing perjury. from prosecute state did not seek to prosecution’s It is evident of the affida- on the basis his submission penalty against threat to seek the death exculpating inculpating vits Smith and to coerce Edmonds Edmonds was intended testimony himself; it on his be- testimony refusing or to changing into declared, half the state of Smith “Where, totality testify. under provoke it to seek to execute him. circumstances, ‘the of what the substance dispute by There can be no construct- communicates to the witness is prosecutor did, options prosecution ing the as over and above what the record threat clearly compel intended to Edmonds either necessary, appropriate, indicates is testify in manner that would favor to sought prosecutor inference that testify at against its case Smith or not all. strong.” coerce a witness into silence sentence, of a Facing possibility death Vavages, United (quoting 151 F.3d at 1190 Pierce, (6th option Edmonds did not have a realistic v. States 62 F.3d (internal Cir.1995)) testify previous in accordance with his re- quotation marks omit- cantations, ted).31 court even if—as the district prosecution The warned Edmonds were inferred —those recantations particular if he testified in a man- pros- it is clear that the truthful. Because ner —one that would be consistent with intimidated Edmonds into attempt defense —it would to have ecution’s threats Hence, entirely tutional claims because he cited one rather that are distinct. the dissent's addressing "Vavag- the other of two related cases argument goes, waived his than Smith has argument.” disagree. Although the the same basic issue. es We admittedly put slightly two cases forth differ- tests, they precisely doctrinal address ent Vavages, potential her 31. witness invoked prosecutorial miscon- same doctrinal issue: against right self-incrimina- Fifth Amendment materially op- duct that affects a defendant's prosecution’s based on the threats tion Furthermore, portunity present his case. perjury plea charge her with and withdraw from the exact same doctri- the cases descend agreement рrosecution she in an unrelated Texas, 409 U.S. nal ancestor: Webb v. defense. 151 F.3d at 1187— testified for the Indeed, (1972). There, S.Ct. 34 L.Ed.2d 330 require "[i]t [did] we held that points Vavages out that stems the dissent itself interpretive gloss prosecu- of an much Webb, 836; Vavages directly op. at dis. warning [the conclude that unless tor’s heavily v. Morri- also leans on United States changed her witness] defense " son, con- all, a decision that found Webb prose- testify at she would be refused to trolling],” F.2d at 227. Westerdahl is any attendant perjury cuted for and suffer removed, relying primarily simply a bit more ques- consequences” no [was] and that "there Lord, which in turn relied on United States warnings prosecutor’s were tion that the (which controlling). Webb on Morrison found refusal to [the witness’s] for’ cause of 'but clear, here, a defendant Once it is testify,” constituting interfer- thus substantial alleges prosecutorial Vavages misconduct inter- court ence. Id. at 1190-91. witnesses, presentation "clearly feres with the of his erred that the district court had held ignore prior preju- finding Vavages[ we would be remiss to certain had not been ] Vavages) (e.g., prosecutor's while interfer- decisions of this court substantial diced focusing exclusively (e.g., whether to witness’s] on others Wester- with decision [the ence dahl). Vavages’[s] Certainly, testify [therefore] reverse[d] it would not be consistent Id. at concepts justice for retrial.” remand[ed] to de- conviction and fundamental hearing prive an individual of a on his consti- op. at privilege, Schlup. actual innocence under Dis. Fifth Amendment invoking his immunity, we remedy after was offered would be both even he 840-43. Such hearing regarding ineffective, no further conclude that even to futile and were we prosecu- the required intent require grant the to Edmonds “use state constituted serious mis- tion’s interference testimony at that hear- immunity” for his hearing a fair conduct that denied Smith ing.32 The district court found hold- pro- therefore Schlup on his claim. We ing Schlup hearing “pointless would be a the appropriate ceed to a discussion to long exercise” so as Edmonds refused remedy. testify. supra Although note 27. use See immunity encourage serves to sometimes Remedy 2. testify defense witnesses to after remedy In what the should determining testifying previ- have been deterred from be, in all of prior observe that cases we ously, present case is not the usual uncovered, mis- prosecutorial we have different, one. Death is indeed the outcome of a trial to conduct affected if threatening to seek a witness’s execution guilt defendant’s or inno- determine the he testifies in a manner that would excul- remedy imposed cence. The we those pate fundamentally the defendant is differ- cases was to reverse or vacate the defen- threatening charge ent from to a witness Here, contrast, dant’s conviction. perjury or with some other less seri- only whether the underlying question is non-capital ous offense. permitted be to hear federal courts should claims on petitioner’s constitutional case, immunity would not this use difference, ap- merits. Because of execution, effectively counter the threat of remedy differently. may proach the We as the state would be free to seek the regarding prosecu- precedents look our penalty relying death even barred from torial with an actual trial for interference testimony.33 on If guidance, casеs do not control but those testify, did decide to there would be no appeal. procedural posture The novel way looming prosecuto- ensure remedy permits of the case before us us rial signifi- threat of execution would not by far prosecutorial misconduct less cantly testimony. influence his Without drastic means. facing assurances he would matter, capital charges an as a result of his testimo- accept

As initial we cannot ny immunity to remand to the that use would suggestion dissent’s —assurances not, evidentiary hearing provide light district court for an on not —Edmonds immunity provides prison, might willing accept Use "while the not be 32. government may prosecute consequences refusing testify. the witness an for It is also subject rely possible offense related to the matter of the that the state could decla- testimony, itself and against witness's rations interest contained in Ed- any may against any 'fruits' thereof not be used as well as monds's affidavits statements except the witness in criminal case jailhouse might that a informant make. To be prosecution perjury arising sure, out of the tes- it is not—as the dissent asserts-—-Ed- Lord, timony.” at 711 F.2d "eligibility] charges” monds’s for renewed prevented testifying, that has him from dis. reversed, op. warning but rather the state's If were Smith's conviction penalty the death if he testified. subpoena compel it -wouldseek state could him and him to immunity provide guarantee testify, truthfully, Use no that Edmonds and carrying certainly that the state would not succeed in was the killer. Edmonds has reason Smith, to be threat. concerned that once freed from out its at trial. In threats, ability present to his defense expected to be prosecutor’s of the prosecutorial misconduct a sentence most instances of death imposition risk the causing defense witnesses to withhold tes- testimony exculpating Smith providing himself, timony, of its truth- this court has reversed or vacated regardless inculpating See, testimony e.g., that contradicted conviction. Va- Any the defendant’s fulness. 1193; Young, of doubtful reliabili- 86 F.3d at vages, would be 151 F.3d at his affidavits Lord, Westerdahl, 1088; 946; 945 F.2d at ty- In the context of a 711 F.2d 891-92. alternatives, three faced with We are a hearing prisoner to determine whether then, miscon- remedying prosecutorial for presenting from precluded should be Smith’s, in which in a case such as duct of his failure constitutional claims because Schlup stage at the occurs misconduct procedural prerequisites, with comply to affidavits presented has petitioner however, necessary to reverse the is the facts to regarding from the witness writ; less conse- conviction issue had the state he would have testified which appropriate and more remedies quential First, him to do so. caused to refuse are available. Second, we could issue the writ. we could pro- asserting from the state prohibit prohibiting the The second alternative — from petitioner that blocks cedural bar bar— asserting procedural state Third, claims. the merits of his presenting inter- far less intrusive on the state’s presump- a the affidavits we could afford simply allow the federal ests. It would truthfulness and consider tion of remedy to continue. This proceedings balance, on that On Schlup inquiry basis. to proce- tailored than reversal better the third alternative— we conclude is, It of the case. neverthe- posture dural recantations Edmonds’s presuming less, remedy a overbroad. Such determining purpose for the limited true a misconduct into wind- prosecutorial turn through the may pass whether Smith petitioners who by granting fall relief the least intrusive Schlup gateway as a result of prejudice no have suffered —is most consistent interests and the state’s remedy misconduct. The prosecutor’s the case. posture of procedural with the was unable any petitioner who would allow prosecuto- because of present a witness that we regard, emphasize this procedural to overcome his rial misconduct how a state must considering are not here statements, default, if the witness’s even or how the a trial in its courts conduct evidence, would the rest of the along with remedy instances state courts must Schlup’s strict to meet not be sufficient instead, misconduct; we are prosecutorial standard. proceeding determining whether federal his federal fairly petitioner afforded

has third alternative— conclude that the We remedy will best allow rights and what deeming remedy of more measured fulfill proper its role. We court to federal purposes affidavits credible remedy should be mindful that our do so clearly Schlup determination —is of the respectful tailored and as narrowly remedy provides relief preferable. Such possible. interests as state’s deprived who has been petitioner to a opportunity present issuing the writ of of the The first alternative — believed, him to would enable the effect of corpus have habeas —would requires. Such showing Schlup This is make the retry Smith. requiring the state provide does not emphatically a resolution remedy prosecutor’s when the the usual immunity for a murder the witness with the defendant’s misconduct interferes may Although prosecution’s committed. our Because the threat of a have than those we death sentence was so coercive as to remedy may pre- be different past, testifying, in the it is because the vent Edmonds from and be- applied have has, at very differ- cause the state’s conduct procedural posture of ease is least, Thus, severely any testimony tainted remedy is not “extraordi- ent. the Indeed, exculpatory of might Smith that Edmonds nary,” op. given dis. at 843. Schlup hearing, offer at a Edmonds’s affi- yet neither we nor the district court has credible, presumed davits must be to be alleged considered the merits of the con- for purposes resolving question the violations, it would be far more stitutional procedural whether Smith’s default should extraordinary were we to reverse Smith’s bar him from presenting his habeas claims see, retrial, e.g., conviction and remand for that pre- the merits. On the basis of at Vavages, F.3d reverse his sumption, as well as the other available acquittal conviction and order the state evidence, requisite Smith has made the see, immunity, request e.g., does not use showing actual necessary innocence Westerdahl, Here, at 945 F.2d 1088.34 we proceed hearing to a on his constitutional relief, stop far of that drastic short hold- claims. merely that ing Edmonds’s affidavits must presumed purposes to be true for V. Schlup inquiry. considering Even

consequences remedy apply— we We hold Smith’s constitutional presumed when affidavits are proeedurally claims are not barred insofar true, pass to be is able to through Smith as relate to his murder convic- Schlup gateway and present the mer- tion. We reverse and remand to the dis- its of his constitutional claims—our relief trict court for a determination of those is far drastic than that less afforded the Additionally, claims on the merits. be- defendants our earlier cases. In the cause it never decided whether there end, Smith’s case will or fall rise on the evidentiary hearing should be an to devel- validity of his challenges. constitutional op the factual basis of Smith’s constitution- Only if he claims,36 succeeds on the merits will a al we leave to the district court writ issue and his case be to the returned to decide in the first instance whether such state courts for a new trial.35 hearing should now be conducted.37 Westerdahl, however, 34. Surely, permitting reversed the defendant’s 841 n. 22. petitioner conviction and remanded to the present district court. his constitutional claims Because, case, unlike this it was unclear in in federal court bulldozes far less of the prosecutor Westerdahl whether the had acted reversing state’s efforts than his conviction factfinding pro- with the intent to forcing try distort the state to its case a second cess, we instructed the district court remedy, to make time. The Westerdahl which the dis- We appears prefer, determination first. then directed sent entails far more Westerdahl, acquit the district consequences. court to Westerdahl if it drastic latter See intent, government requested found unless the 945 F.2d at 1088. Westerdahl, immunity use for his witness. See 945 F.2d at The district court did not consider that question because it deemed Smith's claims by adopting 35. The dissent asserts that proeedurally barred and denied him an evi- third of the three remedial alternatives we dentiary hearing on that basis. consider, merely we have chosen a “bulldoz- ball”; earlier, “wrecking er” instead of a in other 37. As we mentioned the district court words, claim, although, dissent thinks that all of our con- must rule on the Herrera noted, op. sidered appears alternatives are intrusive. Dis. we also that claim to have facts, throughout fur- but runs and REMANDED for limited to REVERSED opin- majority opinion. agree I cannot consistent with proceedings ther in misconduct prosecution engaged ion. Edmonds, correctly, that when it informed BYBEE, dissenting. Judge, Circuit himself exposing he was to criminal liabili- ty by making Edmonds need- did Jacob statements Roger For Anthrax concert. kill Mr. money. accepting, Bad. an Konzelman. Even ed ga- they burglarized arguendo, prosecu- the Konzelmans’ that this did constitute So misconduct, ban- They put justification tools. then torial I no rage to obtain see disguise faces them- presumption on their truthfulness dannas up and made code names. Smith affords Edmonds’s affidavits. selves them majority’s into the One of is rope presumption took a house. The newfound cases, three-foot-long contrary as well and all of which prior a crowbar tó our took it, kill- require beat the Konzelmans with that we remand to the district savagely severely injuring findings prose- Konzelman and court for further as to the ing Mr. Yet, en- largely Konzelman. When Edmonds cution’s motives. all of this is Mrs. agreement agreed and the ma- plea indulging into a a sideshow because even tered Smith, pled jority’s presumption, no con- in this testify against Smith the evidence now felony qualify still insufficient for test murder. case is Schlup gateway. did not kill Mr. Konzel- v. Delo’s actual innocence claims that Smith 851, man, majority, 314-15, willing to believe 115 S.Ct. See U.S. (1995). Indeed, him, that Smith is innocent. L.Ed.2d 808 in the thinks of ap- that Smith convicted of habeas that have problem is was thousands cases every Even I have to locate felony accepting plied Schlup, murder. been unable true— story single petitioner Edmonds’s latest case where convicted word of is good felony not to—it murder to establish and there reason was able “Edmonds, and not And there is entirely irrelevant actual innocence. Not one. killer,” Smith, making By did the first. was the or that “Smith no basis for this case accounts, gloved, Maj. Op. present, kill Konzelman.” at 814. Smith was all Nonetheless, rope majority, reviewing and armed at least disguised, with in all evidence murdered his construing afresh and when Mr. Konzelman was record Smith, There isn’t a during burglary. in concludes that Smith home favor country convict actually jury innocent because the evidence in the that wouldn’t any today rea- on a murder. charge “would more than not lead vigorously, respectfully, to believe that Smith I but sonable therefore felony murder.” guilty of the crime of dissent. Id. at 822. analysis My majority’s view of I. FACTS by perhaps can best be described

evidence early April I McCarthy: morning In the hours Mary author paraphrasing consuming methamphetamine, nearly the ma- after disagree every word Smith, Edmonds, Marlin written, Roger “and” and Jacob jority including has enough to steal is not “Hooter” Bouse1 My profound disagreement decided “the.” ambiguity record as to supra in the chance See 1. There is some a minimal of success. “Arlen” or Bouse's name is whether Mr. first note 4. magistrate judges district "Marlin.” The purchase ven-year-old severely injuring tickets to Emmett and money property Ball in Portland the fol- Headbanger’s seventy-four-year-old Elma. lowing night. through The trio drove vari- Konzelman, According to Elma she truck, neighborhoods ous standing awoke to find two men her looking good target. They ultimately small bedroom. positioned One was seized on the residence of Emmett and dresser, front of her while the other stood garage Elma Konzelman because the door doorway in the for a short time before open. walking hallway. by down the The man parked The trio Edmonds’s truck a few over, the dresser told her to roll and she up the houses road the Konzelmans’ Emmett, woke who started to climb out of home, all garage three entered the bed. The man the dresser told Em- look for valuables. the men were in While down, “Lay man,” mett to old and when garage, doorway Smith leaned into the respond, burglar Emmett did not pro- connecting garage to the house. The him ceeded to beat with the crowbar. He shut, and, door then slammed scared that then beat Mrs. Konzelman the head inhabitants, had awoken with the crowbar2 resuming before running. three took off At point, bludgeoning of Mr. Konzelman. separated Bouse became from Edmonds beer, hat, Understandably, and Smith. Bouse took a a and Elma Konzelman’s de- pair gloves a in garage from the and hid scription hazy. of events is somewhat She the bushes near Edmonds’s truck. He did could not recall at trial lights whether the again not see Edmonds and Smith until not, were on or but that stated she could later, forty-five they minutes when re- However, plainly.”3 “see because both turned to the truck together. men used bandannas to mask their faces hats, and wore she was not able to de- transpired

The exact events that very scribe either man well. She testified forty-five subject those minutes are to con- initially that she thought by that the man flicting accounts and inferences. What is Emmett, the dresser was who also owned clear is that Edmonds and burglar- a similarly lightcolored jacket, but on fur- during ized the Konzelman residence time, ther thought and that reflection it more one of the two men took a large jacket she saw the inner crowbar from the Konzelman resi- liner of a short out, dence and savagely elderly attacked the worn inside tags. as she could see the bed, Konzelmans their killing eightyse- She pants described his as dark4 and his former, majority Contrary used the and the majority’s and the to the discussion of her observations, sentencing transcript state court Maj. Op. use the lat- at Elma Konzel- least, question, join ter. On this at I man would have “fail[ed] not to notice” what ” majority. plainly.' she could “see 2.Mrs. Konzelman believes that she at- argues “simply was because protested tacked jeans because she when her hus- black were recovered from Smith's However, band was beaten. she stated that house and Mrs. Konzelman stated that the opinion speculation she based this on and pants, killer wore dark or black it does not actually why that she didn't jeans remember follow that Smith wore black on the burglar night decided to attack her. burglary.” Maj. Op. It is therefore at 816. The entirely possible that she was attacked for a pants matching fact that officers found Mrs. reason, considering different description meth- Konzelmans of what the killer or— amphetamine burglars induced wearing state that both possession was in Smith's is undeni- were at ably the time—that she inculpatory, particularly was attacked for combined with no reason all. the other evidence in tire record that Smith cap.” parts evening. a member certain He cap” “stocking a or hat as “skull white, tall, not very said that he She stated Emmett Konzelman’s also skinny, heavy,” exactly “not but very death was “a violent and tremendous long hair. de- that he not have She did hap- accident” that “never have rocking him back forth scribed pened drugs.” wasn’t feet, as if he couldn’t stand the balls of his contrast, given many Edmonds has seeing any still.5 did not remember She which gloves evening, together on the murderer’s hands. She accounts in the doorway, the man describe encompass nearly every possible way that there for a short only who she said stood burglary might murder oc- have ransacking leaving time to resume before Nonetheless, curred. when considered man wore a her The second also house. conjunction physical evidence re- his face. bandanna over and the police covered Mrs. also remembered Konzelman witnesses, things the other some become phone out her lines after ripping attacker clear. Both and Edmonds were in calling her from prevent the attack to garage before together entering the saying that she heard voice police, and There, hats, they two house. found “Low” Mrs. Konzelman said repeatedly.6 put disguise himself each one on to before saying thought that she the voice entering burglar One the house. wore “Low” not the voice of man who cap cap, while the other baseball skull her, that it was hard for her attacked but hat, fedora-type with a floppier, wore he had to be sure because said way around running brim all the it. The word and over.7 one over when together men were also both given a detailed account Smith has never faces. tied their Both bandannas over quote the record.8 To evening of that on it is burglars gloves, though not en- wore court, however, he the district has “stead- gloves. tirely clear who wore which Ed- victim the fastly hitting denied either with he wore a pair monds has that stated crowbar, the into carrying crowbar or even pair latex Smith wore a gloves, white while home.” Smith wrote a let- the Konzelman However, gloves. leather evi- black that was read dur- ter Elma Konzelman suggests also dence the record letter, In this im- ing sentencing. single glove work Smith wore a brown in the plicitly his involvement admitted garage, and taken from the Konzelmans’ burglary but maintained he was opening ap- brief killer, in his on though he not re- Smith asserts the even Obviously, burglars referred to each other jeans night. the two wore the fact “High” during pants by code and "Low” that a owns black is of limit- the names defendant itself, just robbery. as probative ed value in and of but the wall, majority’s a brick the assertion is not that Smith that "it not follow wore black does that she 7. to mention the fact was seven- Not wholly jeans night burglary” the on the unexpect- ty-four, just she awakened had been point. misses the morning edly to watch her at four in the get with a in the head crow- husband beaten fidget inability tendency The and the 5. bar, just been hit in the and she herself had symptom among sit still a common meth- with crowbar. head that same amphetamine addicts. users and Nor, protections of the Fifth under the early police suggested 6. Her statements Amendment, obligated any way to do is he in might version that this have been truncated “hello,” suggests so. of the word but record gloves.9 injuries. one or two such peal Sadly, that he wore survived her Mr. Konzel- fortunate; garage, pair found a crowbar man was not he succumbed injuries to his rope. They brought and a both items into sixteen hours later. house, eye an possibly with toward ultimately caught The trio was through tying up rope. the residents Ac- a serendipitous convergence of good luck cording to affidavits from Smith’s two trial sharp police work. speaking While lawyers, carrying admitted to offense, with Edmonds about an unrelated rope rope into the house. Police found the police discovered that he had attended on the floor of the Konzelmans’ bedroom. particular Judas Priest concert in Se- crowbar was found on the floor of the attle. A ticket stub from that same con- Konzelmans’ kitchen. cert was found in the street about a block away from the Konzelmans’ on the morn- residence, leaving

After the Konzelman ing burglary. after the After further in- truck, Smith and Edmonds returned to the vestigation, police confirmed that they rejoined where Bouse. Edmonds belonged ticket to Edmonds. When con- drove the trio to Smith’s house. father’s evidence, fronted with this Edmonds ad- Meanwhile, Elma Konzelman waited until mitted to burgla- his involvement with the burglars she was sure that the gone were ry and identified Bouse and Smith as his climbing before out of her bed. When she companions evening. Smith was realized that all of her phones had been charged with aggravated seven counts: disabled, carefully she found her cane and murder, murder,10 burglary, two way neighbors’ made her next door to the of robbery, counts and two counts of as- help. house for The Konzelmans were sault. hospital. rushed to the Mrs. Konzelman required surgery, including implanta- Other evidеnce that corroborated Ed- head, tion plate events,11 of metal in her but she monds’s version of Smith’s violent I find that burglaiy, assertion the defense counts of the but finds that actually inculpates Smith. Mrs. Konzelman corroborated elements "are irrelevant to the gloves testified that she did not see question [of] whether he or Smith committed testimony suggests killer’s hands. Her Maj. Op. the murder.” at 815. This is not glove, leaving Smith wore one brown true. Edmonds stated that the Konzelmans gloves. Edmonds as the wearer of the latex up woke because Smith turned on the bed- incriminating by This evidence is made more lights, room which conforms with Mrs. Kon- glove the fact that the work had a small blood zelman’s version of events. Edmonds testi- though palm. stain on its Even the stain was standing fied that he was in the bedroom permit typing, presence too small to blood the doorway behind stepped Smith when Smith suggests may of blood that it have been worn lights. into the room and turned on the This by matching glove the killer. The was found positioning matches Mrs. Konzelman's testi- garage. light in the Konzelmans’ In of the mony beating that before the she saw one majority gives attention that the to the rest of burglar in her room the dresser and anoth- attire, Maj. Op. Smith and Edmonds’s at 816- doorway. er in the Edmonds testified that strange they ignore I find it piece this rouse, Mr. Konzelman started to and Smith of evidence. down, man,” "Lay told him to back old before making threatening gesture a with the crow- 10. In Oregon, felony murder and murder are bar, point at which Edmonds left. This se- statute, Or. codified under the same Stat. Rev. quence synchronizes of events with Mrs. Kon- (2003), § felony 163.115 but murder was description exactly, including zelman’s almost clearly theory under which Smith was burglar only that the second was in the door- charged prosecuted and in this case. way period walking for a of short time before 11. The majority acknowledges away. testimony, that there is In Mrs. Konzelman's corroborating evidence only Edmonds's ac- presented initial other evidence that has been er, argued on he that his appeal, credibili- history, apparent and Edmonds’s the killer. pointed request to Smith as for new counsel should have been ty12 all custody, also made post-conviction hearing. Edmonds first granted While at his Seaman to his cellmate Samuel statements did appeal He the decision the lower of events Ed- the version consistent with Oregon merits. court on the The Court Ultimately, police. told Ed- monds and Appeals against ruled Smith the Ore- contingent a given plea bargain was monds gon Court denied review. Be- Supreme polygraph a examination. upon passing never his presented cause Smith substan- examination Although the results post-conviction Oregon tive claims to the inconclusive, opinion the examiner’s were Court, Supreme he has not his exhausted truthful, being was that Edmonds state remedies. agree- proceeded plea with the the state Meanwhile, Edmonds was released Meanwhile, Smith’s defense was ment. prison. He committed another crime had impression that Edmonds under himself received life sentence. Edmonds polygraph his examination. passed attorney then the district a short sent of Edmonds’s requested copy defense affidavit in which he recanted his testimo- results, prosecution, but the polygraph test Smith, ny against declaring that did Smith believing was not entitled defense not kill Mr. Konzelman and prosecution could not them because the Yet, at knowingly perjury. hаd committed evidence, as refused to introduce them time, he inno- the same maintained his them. produce cence, stating perjured that he had himself Faced Edmonds’s with out of was about to “Roger fear Smith possibility him against and the death testify to do a life and leave me sentence trial, proceeded penalty for a I did not crime commit.” pled He no plea bargain. into a entered Smith returned to state court to seek murder and one count of contest relief post-conviction based robbery. exchange, dropped the state contradictory affidavit. The state court him, against including the other five counts Smith, ruled and he against appealed. murder, capital aggravated crime of as appeal pending, he filed While against charges pending well requesting motion court state girlfriend, Jeannie Simons. appeal voluntary dismissal of his sentence, a life with a minimum received request. court granted He to the years. appealed term of 30 Oregon Appeals Oregon Court of sought post-convic- Smith then federal without success. Supreme Court the course of these During tion relief. proceedings, Smith’s counsel obtained sought post-conviction relief Smith then affi- affidavit from Edmonds. This court, second alleging violations both state kill did not again davit stated Smith right Amendment to counsel and his Sixth had Mr. and that Edmonds Konzelman process rights. petition due his Smith’s The also merits, perjury. committed affidavit its re- was denied on his passed stated that Edmonds had appeal, for counsel. new quest new On required by plea his bar- polygraph for test appointed counsel was Smith. Howev- murder, homicide, put inter- actually significant his head down on the there is about testimony. rogation cry. corroboration Edmonds's to table started When informed Edmonds that his officers scene ticket stub had been found at the 834 rejected prosecutorial

gain. petition amended his add- Smith’s claim request claim his ing two claims. The first misconduct denied for an additional evidentiary hearing. appeal his conviction his This followed. contended that violated rights actu- constitutional because he was The

ally innocent murder. sec- II. ANALYSIS claim, Brady Maryland, v. ond based post-conviction under AED- On review 83, 1194, S.Ct. L.Ed.2d 215 373 U.S. 83 10 PA, “may pro not reach merits of (1963), fail- prosecution’s derived from the eedurally defaulted claims.” Williams v. ure to test produce polygraph Edmonds’s (9th Stewart, 1030, 441 1061 F.3d Cir. results requested. when 2254(b) (2000). 2006); § see also 28 U.S.C. government After the saw A if procedurally claim is defaulted “the affidavit, it arranged meeting second petitioner applicable failed to follow state court-appointed with Edmonds his procedural raising Sawyer rules [it].” There, government counsel. informed 333, 338, Whitley, v. 505 112 U.S. S.Ct. persisted testifying Edmonds that if he (1992). However, 2514, 120 L.Ed.2d 269 affidavits, according to his the state could the authority courts retain “[f]ederal plea agreement have his set aside. With- corpus issue the writ of in a habeas fur out plea agreement place, his Edmonds ther, despite narrow class of cases a peti subject capital charges murder ... procedural tioner’s default.” McCles for the killing of Emmett Konzelman. On Zant, 467, 494, key v. U.S. S.Ct. hand, other Edmonds reaffirmed his (1991). 1454, 113 L.Ed.2d 517 This narrow prior which testimony, had identified class of cases consists of those “extraordi murder, Smith as the the state would not nary” cases where “a constitutional viola pursue perjury charges him against based probably tion has caused the conviction of on the of his contents affidavits. After innocent of one the crime.” Id. such a counsel, conferring with decided Edmonds case, a “claim of ... proce ] innocencef rights invoke his Fifth Amendment and dural, substantive,” rather than in that it testify. refused to In response, ar- petitioner procedural allows to overcome gued that engaged had prosecution hurdles so that a court hear will his actual prevent misconduct in order to substantive his claim—that constitutional from presenting exculpatory testimony. rights were violated—on the merits. sought He compel- a district court order Delo, 298, 314-15, Schlup 513 U.S. ling prosecution grant Edmonds use 851, (1995). S.Ct. L.Ed.2d 808 Such a immunity under United States v. Wester- “claim innocence is thus ‘not itself a dahl, (9th Cir.1991). 945 F.2d 1083 claim, gateway constitutional but instead a peti-

The district court denied through petitioner which a habeas must procedural grounds tion on pass because he had have his otherwise barred constitu ‍‌​​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‌​​​​​‌‌​​​​​​​‌‌‌‌​​​​​‌​​‍ ” remedies, failed to his exhaust state and tional claim considered on the merits.’ Id. procedural 315, (citing default could not be excused at 115 S.Ct. 851 Herrera v. Collins, because he had neither actu- demonstrated 506 U.S. 113 S.Ct. (1993)).13 al prejudice. innocence nor cause and It 122 L.Ed.2d 203 states that capital such claim substantive actual innocence in case subject procedural would not be default. ... "would warrant federal habeas relief if Maj. Op. See 810 open process at n. 4. But it at is not all there were no state avenue such Heirera, 417, clear from Herrera this is the case. The a claim." 506 at U.S. 113 S.Ct. Thus, added). establishing (emphasis Herrera Court long assumed that 853 so aas

835 to a witness. United States v. immunity various constitutional raises Cir.1989). (9th 1130, Shirley, F.2d 1133 prosecu- 884 from the actions of arising claims Westerdahl, 1083, held that entry In 945 F.2d prior to his his own counsel tors and However, grant these or withhold while the decision of no contest. plea of his do- immunity generally Smith has the exclusive not before us because claims are these claims there is a limited prosecutors, defaulted on main of procedurally compel before can exception his remedies under which court failing to exhaust may only way we immunity. courts. The use Westerdahl’s Oregon grant time is he can fact-finding claims at this “the exception applies consider his when must actual innocence. Smith prove intentionally by prose- his distorted process is evidence considering all the misconduct, show cutorial and the defendant available, likely than not it is more now a fair trial.” 945 F.2d at thereby denied him juror would convict that no reasonable prima A can make a facie defendant murder, crime to which he felony by dem- prosecutorial case of misconduct —Bell, v. contest. See House pled no government that “the distorted onstrating 2064, -, L.Ed.2d 1 165 126 S.Ct. U.S. judicial factfinding process by denying (2006). immunity potential wit- [a] [defense] have been ness” whose would these for- majority gets Smith over an Id. “If a defendant makes relevant. steps. in three hurdles procedural midable showing prose- prima unrebutted facie prosecu- First, majority finds that the pre- that could have cutorial misconduct by preventing in misconduct engaged tion giving from rele- vented a defense witness behalf testifying from on Smith’s the case to testimony, vant we will remand by tell- proceedings post-conviction at his evi- court to determine at an the district prior that if he recanted ing Edmonds hearing government whether the dentiary of his testimony, he would be breach fact-finding intentionally distorted therefore be bargain and plea Whitehead, 200 States v. process.” United The ma- anew with the murder. charged (9th Cir.2000) 634, (emphasis 640 F.3d is the first jority then decides—and added) omitted); (quotation see also Unit- remedy, let such a court to even consider Tam, 797, n. 4 240 F.3d 804 ed v. States remedy for this adopt alone to it—that the Cir.2001) Westerdahl, (9th (same); the truthfulness presume misconduct is to (same); 1086, States United F.2d purposes recantation for the of Edmond’s (9th Cir.1983) Lord, 711 F.2d inquiry. By actual innocence of Smith’s (same). ap- circuits take a similar Other having assumed that Edmonds thus See, v. Tarri- e.g., United States crowbar, proach. majority finds wielded Cir.1993) (2d cone, 474, 476-77 21 F.3d jury have con- no reasonable misconduct (remanding prosecutorial he is actu- and that therefore victed Smith address evidentiary hearing to claim for an I disagree murder. ally innocent of intent and government’s questions step. at each with the Whitley, 992 Kirkpatrick v. knowledge); A. Misconduct Prosecutorial (5th Cir.1993) (same); F.2d 497-98 Smith, 615 F.2d Islands v. Virgin is not general, a criminal defendant (same). remand, (3d Cir.1980) If, compel government grant entitled to view, adjudicat- we would still be barred in which petitioner has a state forum habeas petitioner’s ing merits because of the it on the his actual innocence claim he could have heard, procedural default. of federal re- but eschews it in favor 836 misconduct, then it can entitled have his vacated

district court finds to conviction See, defense to be id. at grant e.g., force the state to wit- retried. 1188-93. immunity.14 ness use But, Vavages both while and the a line of There is also second cases prosecu- lines of Westerdahl cases address majority opinion which the relies on. misconduct, petitioner torial a who seeks stem the Supreme These cases presents relief one line of cases a under Texas, Court’s Webbv. 409 decision U.S. very argument a petitioner different than 95, 351, (1972), 93 S.Ct. 34 L.Ed.2d 330 Vavages who under seeks relief the other. judge “gratuitously singled where the trial requires government “substantial interfer- lengthy out ... for a one witness admoni- ence with a defense witness’s free and dangers perjury,” thereby tion on the testify,” unhampered choice to 151 F.3d at implying he expected “that [the witness] 1188, requires something but Westerdahl lie.” Id. at 93 The trial S.Ct. 351. different; requires a defendant to dem- judge him proceeded then “to assure fact-finding process onstrate that “the lied, if he he would be prosecuted and intentionally by prosecuto- [was] distorted probably perjury, convicted for misconduct,” rial at 1086. F.2d The sentence for that conviction would be add- biggest these difference between two stan- sentence, present ed to his and that the dards is a that Westerdahl has more strin- impair result would be to chances gent requirement prosecutorial intent than parole.” subsequently The witness Id. re- sense, Vavages does. This as makes West- testify; fused to Court stated a compel erdahl enables defendant to “effectively judge drove that witness off prosecution grant immunity, remedy a the stand.” Id. at 351. The S.Ct. that Vavages pro- and its brethren do not so, in doing judge Court held the trial here, opted vide. But Smith has not to had right denied defendant to seek relief under Vavages, has witnesses, present his own thus violating an argument made under Westerdahl. His rights his Due Process under the Four- opening reply do not briefs cite to teenth Amendment. Id. any Vavages or to other cases its line. heavily argue relies on a Nor number does he that there was “sub- Webb, following of cases Earp such as stantial government interference with a (9th Ornoski, Cir.2005), and, 431 F.3d 1158 unhampered defense witness’s free and particular, Instead, Vavages, testify.” United States v. choice narrowly he (9th Cir.1998).15 F.3d 1185 These argument cases focuses his attention on an un- hold that government “substantial interfer der majority’s attempt Westerdahl. The conjure ence with defense Vavages witness’s free and to a claim based on the unhampered testify argument choice to amounts to a the cases “address[] issue,” process.” Vavages, violation of due Maj. 151 same basic atOp. 824-25 n. omitted). (quotation F.3d at If unconvincing. argument is An that is pros defendant can establish that the aby party opening both raised brief its waived; ecution accordingly, committed such a violation Smith has waived prejudice result, See, that he Vavages suffered as he argument might make. cases, clear, Technically, in our Westerdahl 15. As these cases make Webb's rule has compelled immunity. state However, use is not to offer apply prosecutors been extended as well so, if the state declines to do judges. judgment acquittal court enters for the defendant. Marsh, against issue cuts also 194 F.3d 1052 the Smith. See id. e.g., Smith (“The Cir.1999). (9th strongest gov- at 1191 factor in the prosecutor the ernment’s favor is that nev- majority’s agree I with the deci- do not witness].”). directly [the er admonished I nor do Vavages sponte, raise sua sion to Second, message the itself truthful Vavages’s falls within was agree that this case no information Vavages, we examine the and contained more than Under purview. necessary to to to communicate Ed- totality of the circumstances determine was change in- “substantially implications monds the of his in prosecution the whether Here, testimony. right message to the the with a witness’s decide terfere[d]” penalty against the the testify. “Among to factors state would seek death whether he, are in if he and ... the manner Edmonds testified not courts consider Smith, was, judge raises the had killed Mr. Konzelman in- prosecutor which the issue, statement, disputably, weighty and if language warnings, the of the motive, prosecutor’s improper ... basis in the record driven an would con- the might Vavages, prosecutorial lie.” stitute believing the witness misconduct turn. See at But if highest I address each in order. id. F.3d lying, testimony Edmonds was his would First, prosecu- in which the the manner perjury potentially be that could enable a majori- the tor raised the issue contradicts justice. murderer escape convicted to try- ty’s prosecutor the assertion that was sufficiently Such scenario would dire ing in Edmonds’s decision to to interfere warning. merit such a stern not prosecution, not. It was the testify or defense, Moreover, ap- prosecutor very good the the who asked the court to had warning point pros- for Edmonds. And the reason issue Edmonds. counsel into attempt previously Ed- The state had entered did not to discuss ecution agreement with Edmonds based on plea with him until after monds’s affidavits Edmonds, Smith, If had provided premise him with counsel. court had crowbar, and prosecutor by a to wielded the that Edmonds was driven desire silence, testify. If have so Edmonds recanted his scare Edmonds into would Smith, necessarily against if he he been much to do so was easier himself and undermined the represented by implicated reason counsel. agreement. plea for his Un- prosecutor would have wanted whole basis vacillating, op- if he the circumstances —a legal counsel is der have every fully state had portunistic that Edmonds was witness—the wanted ensure duty, to advise consequences right, perhaps of his actions even informed of was, testimony imperiled his prosecuted Edmonds that so that he could be fact, eligible him agreement and rendered Vavages, plea As the murderer.16 charges. I that we prosecutor suspect question no that the for renewed “there is favorably prosecutor on a justified cautioning in ... would not look [Edmonds’s kept a defendant violated testifying false- who silent while against his client’s counsel] him and then declared possible plea agreement him of the con- his ly, informing Thus, charged the defendant sequences testimony.” Id. breach [his] original offense. prosecutor raised the manner which execution,” step preliminary to Edmonds's appointed counsel believing lying: [that in the record for reason to think that Edmonds was Edmonds] might lie.” conflict After was for role in “[A] Id. direct between Edmonds released murder, proposed testimony burglary Konzelman and he and[his] the the witnesses] prior testimony” a “sub- crime and sen- own constitutes committed another was believing prison.17 gave stantial basis in the record for to tenced life Edmonds might pris- justify already the witness lie” which could his affidavits while he was “unusually strong per- subsequent quite for against admonitions on this offense. It is Here, Edmonds, jury.” offering Id. a plausible believing any Edmonds was that that completely testimony gave of contra- version events he would have no conse- him, testimony mul- given dicted that he had on for to lie in to quences decided order occasions, exculpate tiple multiple statements he had his old associate Smith.18 The given police, good to the and that he had prosecution statements reason to believe case; made had to a cellmate. that this was indeed the the second new, Although rely incriminating I on evidence evalu- review "old this to for and and evidence). potential exculpatory” the ate lessened deterrent force of conviction, punishment, Schlup do not the But it I does, use as is not clear that allows for majority propensity as to consideration of all evidence inadmissible evidence. suggest Schlup progeny emphasize and that it indicates Edmonds more its re- was viewing reliability need not to have been the killer. court make Konzelmans' credibility assessing Maj. Op. at determinations wheth- See 814 n.8. The mis- petitioner passes through definitively Schlup er ac- Schlup allowing as reads this in- gateway. Schlup, tual innocence See 513 admissible evidence. (noting U.S. at 115 S.Ct. 851 that the It proposition is a well-established that Fed. unreliable). potentially new evidence was In- 404(b) strictly propensity forbids evi- R. Evid stead, reviewing may courts truth- assume the improper prejudicial dence as because its ef- assessing fulness new evidence in whether out-weighs probative its fect value. Old See petitioner guilty beyond no would find a States, 172, 180-82, v. U.S. United 519 Chief (assuming a reasonable doubt. See id. state- (1997). S.Ct. 136 L.Ed.2d 574 117 This evaluating ments to be true and then whether majority's unqualified evidence and the infer- juror hearing such evidence would vote to acceptable Schlup ence no more under the convict). inquiry major- than it would be in court. The point At Supreme provid- no has Court "[ujn- ity interprets Schlup providing as flatly notoriously for ed evaluation of AEDPA, may der consider such evidence propensity inadmissible evidence like evi- regard habeas review without to the rules by majority. dence discussed While govern admissibility that would at a trial.” Schlup reviewing frees a court from admissi- Maj. Op. (referring at n. 8 Schlup, 814 to 513 bility assessing considerations such as relia- 327-28, 851). U.S. at 115 S.Ct. It is true that bility weighing credibility, Schlup does Schlup reviewing notes that a court "is not permit us consider evidence admissibility bound the rules of would independent inadmissible of such consider- govern at trial.” 513 U.S. at S.Ct. 115 ations. is, may 851. That a court consider "relevant evidence that was either excluded token, or unavail- By may the same Edmonds have 327-28, able trial.” 513 U.S. at S.Ct. spending reasoned since he evidence, explains, bars, 851. Such the Court in- ought rest of his life behind to ac- alleged illegally cludes "that to have been knowledge his true role the murder of (but regard admitted with due unrelia- thereby Emmett Konzelman and exonerate it) bility tenably Indeed, and evidence claimed to wrongfully convicted Smith. wrongly theory. have been excluded or to be- have posited is Smith’s But the alternate (cita- come available after the trial.” plausible, Id. motivation is at least as omitted); Bell,-U.S. prosecutor refusing tion see also House cannot be faulted for -,-, 2064, 2077, accept questionable S.Ct. 165 L.Ed.2d Edmonds’s new testimo- (2006) (characterizing Schlup allowing ny at face value. there could be real conse- by monds that procured prepared was affidavit act proceeding.19 This to his actions was an taken quences in this counsel fact, “intentionally factfinding testi- distort[]” with Edmonds’s combined when prosecu- reversal, merely designed instead process, reveals that but monial believing very strong grounds distorting prevent tion had Edmonds a lie. importantly, would be I More as discussed process. balance, then, above, even if we consider prosecutor giving On I Viwages do warning changed testimony claim under that Smith’s fair his —and not plea agreement, that should do so—I do his not think which would breach require- can meet its consequences. think that Smith The ma- entailed serious prosecu- to jority’s approach ments. seems leave of appropriate tors no course action other and, view, a majority takes different The rolling permitting than over and defen- that considering the fact without even agree- to their plea bargain violate dants Vavages argument, not a has raised impunity. ments with requirements. met its finds Smith has that supplant majority’s The efforts Smith’s do I that we should conclude Nor believe necessary to its result be- is actual claim prosecution’s the actions unwar- that were the cannot succeed on Wester- cause Smith claims, because, as the ranted the he has made. It is argument dahl that previously had prosecution “determined] prosecu- the record that at all clear on this appropriate punish- case that an in Smith’s in- factfinding process, tion the distorted years for actual killer was 30 ment Nor did the dis- tentionally or otherwise. First, Maj. Op. at we should life.” majority’s view agree with the trict court sought prosecution the sentence the use “threatened” Edmonds. prosecutors that Smith, rather than the sentence impose prosecu- court found that district bargain, plea his actually he received after counsel that Edmond[s]’s tor “warned any comparison. of basis pen- the death attorney district would seek murder, aggravated for which was indicted he, and not alty if Edmonds testified that capital Oregon, a crime in see Or. is Rev. Smith, actually Konzel- Emmet[t] killed 163.105(l)(a) (2003), § and both Stat. a line arguably man.” fine there While of his trial own affidavit and those Smith’s warning consequences of future between attorneys identify eligibility his for the retribution, the distinction threatening for as a reason penalty primary death prosecuto- to a is critical determination reason, I For see no bargain. that plea rial intent. majority’s comparison. in the significance Second, say majority, unlike the I cannot num- presents in this case

The record vigorously prosecutor’s decision to pros- for that legitimate explanations ber charges against person who pursue As have conduct. I discussed ecution’s to have committed murder must unusually claims above, prosecution had Edmonds, by necessarily improper be motivated an that reasons to believe strong testify- person that prevent made desire thought that statements he who equally at I think that it is least consequences, lying. ing. without would be circumstances, such decisions are motivated advising plausible Ed- these Under attorney might have told Edmonds charge defense perjury for Edmonds's 19. A this, plea neglected that his by but to tell him sentencing the stat- was barred agreement could be set aside and The record indicates ute of limitations. capital prosecuted for murder. prosecution was concerned Smith's entirely impulse claim, proper an desire to erdahl analyzing instead —a justice bring person for his violation, for Vavages case which does crimes.20 require showing prosecu- the same accompanying torial intent and the remand suggesting

I am not that we should evis- evidentiary hearing. an by conclusively presum- cerate Westerdahl ing prosecutors always act with Thus, my problem majority’s with the when make noblest intentions goes beyond conclusion fact far that it immunity decisions. Government malfea- prosecutorial finds misconduct where I very legitimacy sance threatens the of our would find none. Far important, more justice Therefore, system. prose- criminal majority’s conclusion premature. In- extremely cutorial misconduct is an serious of sifting through conflicting stead asser- charge investigated carefully. that must be of an undeveloped tions the aid rec- question But in- prosecution’s ord, the majority should followed have our one, tent factual is a and must be resolved precedents Westerdahl and remanded this by in each case thoughtful thorough to case the district court for evidentiary an task, consideration of the That evidence. hearing question. majority this The held, sensibly should have be undertak- should not our prece- have deviated from by en the district court. Westerdahl by co-opting Vavages dent the line of cases cases, prosecution the defendant and the answering question this itself. conflicting will often assert and contradic- tory happened why. versions what court,

An appellate examining a cold and B. Remedy record, undeveloped is the ideal insti- Even if conclusively we could determine tution resolving questions. for such Our there prosecutorial misconduct precedent recognizes evidentiary that an here, I also take issue with majority’s hearing superi- in the district court is a far conclusion that the standard Westerdahl telling mechanism. It is in each of remedy for prosecutorial misconduct —or- cases, our Westerdahl we have remanded dering prosecution a grant defense evidentiary the district court for an immunity witness use be insuffi- See, hearing. e.g., Young, United States v. —would Maj. cient this atOp. case. 825-27. (9th Cir.1996) 86 F.3d 949 (remanding majority The reasons that if Smith’s con- for an evidentiary hearing to determine viction is overturned as a result Ed- prosecutor whether the immunity withheld monds’s testimony, prosecution from could a defense order witness to inten- charge then tionally with murder and factfinding process); distort Westerdahl, (same); seek the death penalty. Knowing this, at Id. F.2d Lord, (same). reasons, majority 711 F.2d at it 892-93 The is unreasonable to majority by expect short-circuits this mechanism testify truthfully Edmonds to even avoiding analysis required by a granted West- he is immunity.21 use Id. The law, Oregon 20. I note under is spectre there no highly of a life sentence a is still punishment statute of limitations for nearly either murder or coercive have 131.125(1) manslaughter. behavior, strong § as an on a effect defendant's Or. Stat. Rev. (2003). logic any and the apply long same Indeed, prison sentence. the defense witness penalty While death granted of course the who was immunity in 'Westerdahl punishment most severe a defendant can re- a robbery faced for conviction which carried ceive, nothing majority’s logic potential twenty is limited years. sentence of at least involving Westerdahl, 1085; capital punishment. to cases The See F.2d at United new reliable evidence —whether ex- issue of a reme- that the majority declares trustworthy evidence, pro- culpatory scientific presents “novel dy for case accounts, eyewitness physical or critical Maj. How- Op. posture.” cedural presented was not at trial.” ever, presents It evidence —that case is not novel. added)). (emphasis Similarly, the reason misconduct prosecutorial claim of standard credibility remedy typically that we afford to con- for which the under Westerdahl i.e., that because such state- clear, clearly tied to the violation fessions — consequences, one carry to treat ments criminal wholly inappropriate found. It is ordinarily falsely no incentive to con- fashioning new reme- has open this issue here. See guilt apply fess clearly by bound case one’s when we are dies —does 804(b)(3). Edmonds, already However, Fed. R. Evid. this is what law. sentence, and free serving prison And after eval- a life Maj. Op. at 825-27. does. remedies,22 charge perjury prior for his uating proffered a series of supra, might see footnote testimony, appropriate majority concludes thought truth of Ed- well have statement presume response is might consequences make carried no for purposes monds’s affidavits Indeed, Id. at 827-28. him. once he found out that real Schlup inquiry. might attach to his consequences testimo- If ever there were affidavits were ny, testify. he refused to truthfulness, presumption entitled to a majority, undaunted surely they.23 are not Edmonds has these times; history at fickle and the risk-free circum- testimony numerous changed his in stances under which the affidavits were point professed one he even a version made, fit conclude that Edmonds getaway their sеes girlfriend which Smith’s 324, finally majority’s told truth. The Schlup, at 115 has the driver.24 513 U.S. Cf. (“To credible, willingness accept inno- Edmonds’s latest be actual [an S.Ct. 851 ma- by] of events is remarkable. The supported claim ... version [must cence] 1364, Westerdahl, (adopting remedy "pre- F.Supp. id. at 827 the States v. (D.Or.1989). recantations to be true for sum[es] Edmonds's determining purpose whether the limited of gate- may pass through Schlup the Smith Although majority what it 22. the settles on (”[W]e merely way”); hold[] id. at 828 ... of the three reme- terms "the least intrusive” presumed Edmonds's affidavits must be 827, invents, Maj. Op. at one cannot dies Schlup inqui- purposes of the to be true for ignore the utter obtrusiveness of all of the majority’s is ry.”). the fact that the rule Indeed, Yet majority’s analysis is alternatives. particular- Schlup inquiry limited to the is wrecking comparing a ball to a bulldozer like reassuring. file ly Prisoners in our circuit settling on the latter to avoid some of the Schlup year. each numerous claims under dust. likely try Many prisoners will to contort majority's so as to fit the facts of their cases opinion by only majority does limit its The narrow, unwarranted, expansion wholly but adopting presumption of truthfulness for of our case law. purposes Schlup actual innocence ("We See, e.g., Maj. Op. at gateway. originally indicted as result. 24.She was exculpatory to be truth- deem the statements Ultimately, prosecuted after it she was determining purpose ful ... for the had not been in the was discovered that she contentions are sufficient to whether Smith’s not involved in Konzelman truck and was may any procedural default that have excuse government pursue ("[W]e burglary. did occurred.”); The presume Ed- id. at 814 hindering charges against prosecu- her for purposes to be true for monds’s affidavits tion, dropped part of were as procedurally but these determining is whether Smith court.”); plea agreement. prosecuting in federal Smith's barred from description of past of Edmonds’s credits Edmonds’s the hat jority’s treatment wore, 816, Maj. at similarly troubling. Op. as well as his statements When testimony statements that he and Smith were dif- supports majori- parts ferent of the dark house for much of views, Edmonds ty’s it treats as the em- 20, burglary, at 819-20 n. even id. of truth itself. bodiment Whenever initial concluding testimony while that “his majori- not mesh with the does necessarily any ... and lacks events, false force ty’s a pathological view of he is other countering available evi- example, liar. For when Edmonds con- dence,” id. at 817.27 cellmate, fessed his crime to “such state- by credibility.”25 Edmonds lack ments ignore But even if the affi- one were Maj. Op. Similarly, majority troubling story, they davits’ are both back previous finds that Edmonds’s claims that internally plainly inconsis- inconsistent “Low,” his code name “should be affidavit, tent with each His first other. Id. at skepticism.” viewed with 817.26 On states February both that hand, fully the other Edmonds is to be “Roger kill Emmit Smith did not Konzle- credited “stated that prior when he to man [sic]” and that Edmonds testified house, entering the there had never been falsely “Roger out of his fear him discussion between and Smith testify was about to and leave [Edmonds] hitting anyone using any about kind of to do a life for a sentence crime[Edmonds] anyone,” id. at weapon on never mind did not Yet commit.”28 both Edmonds “such statements agree and Smith and the Konzel- credibility,” [might] lack id. at or that only people mans were the to enter the two other given Edmonds has accounts of night, Konzelman and it is house clear he and evening where Smith discussed thаt the Konzelmans did not attack them- using the possibility way the crowbar selves. There is no to reconcile this against occupants. affidavit —short it is29—with reality.30 also majority's begins ty ambiguity 25. every full statement “Par- resolves in Edmonds’s tes- recantations, ticularly light his in of such timony by concluding jury that a would by credibility.” lack statements Edmonds Id. reading choose the most favors Smith. course, begs question at 815. Of of is, best, highly practice. This at dubious statements, any, jury which of his if is true. A might just easily as conclude that "Particular- majority suggests confusing 28. The that “this Edmonds, ly light in statements such his statement could have resulted either from Ed- credibility.” recantations lack monds's characterization his defense attor- ney's advice or the fact he swore out his majority 26. The concludes also because first affidavit without the benefit of an subsequent attor- inability of Edmonds's to remem- code, ney’s help specifics supervision clarify ber the him his state- "evidence regarding appears Maj. the use of code names Op. in- ments.” at 814-15 n. 9. It strains elsewhere, conclusive.” Id. 817. But at credulity suggest thought that Edmonds majority burglars that the concludes did use murdering that he was innocent of the Kon- code names and uses that fact to infer that zelmans attorney’s because of "his defense they did not to kill the intend Konzelmans at suggestion advice.” The that Edmonds the outset. Id. 819. thought that he was innocent because he wrote the "without the affidavit benefit of an claims, Contrary majority's to the I do not attorney's supervision” equally is absurd. argue that "we must either afford full credi- bility testimony or none at [Edmonds's] all,” only 29. Edmonds's 1996 affidavit is dispute few "any and I do not factfinder long, essentially says only lines and story would ... three choose the elements of his two, things. conflicting that it It found credible those that it did contains the state- discussed, Maj. Op. majori- not.” n. 16. previously at 817 But the ments and a third state- im- in slight burglars 2001 affidavit is a ed that the two were the Kon- predecessor, approximately forty over its that it zelman residence for provement minutes, organized majority and the states slightly longer is better both blatantly “ke[ep] contradict itself. Smith and Edmonds did not that it does track perjury simply motivated of one another’s whereabouts while in explains It house,” prosecution to avoid for mur- id. at 819-20 n. and that by a desire “the markedly parts this differs from two men were different of the der. While affidavit,31 time,” he said in his first it is house for most of the id. at 819. what Thus, certainly plausible a more reason. None- it seems that not did Edmonds theless, affidavits, entirely un- lie in his but that he lacked a this affidavit remains deserving weight majority making many of the ac- for even of the basis state- Entirely it. from the serious ments contained therein. apart cords question honesty, of Edmonds’s there are Yet all of in- these issues-—-the internal making real issues as to his basis for also consistencies, assertions, the unsupported affidavits, of the statements in the some and the contradictions with other facts bare, entirely unsupported which consist fully the record —could if addressed assertions. evidentiary Edmonds testified at an hear- Indeed, ing. statement in his unexplained given Edmonds were use immunity grant- recent affidavits “that Mr. Smith never that which we have —like bedroom,” every ed Konzleman’sfsic] entered other witness under the Wester- credits, Maj. majority Op. exception good which the see at dahl reason —there 820, provides example precisely an of both that this what excellent believe Further, problems. happen. Mrs. Kоnzelman’s Smith has not even clearly respect: extraordinary remedy refutes the affidavit in this asked for the I burglars agree She testified that both entered confers.33 cannot period majority’s jettison the bedroom for a short of time.32 with the decision to an time, undisput- precedent by creating line of At the same is somehow entire new impeaches possible ment that further Edmonds's cred- It is to reconcile these two state- ments if Mrs. Konzelman considered the bur- ibility. This statement is the assertion that glar standing doorway in her bedroom to be perjury committed "with full standing her bedroom Edmonds con- Thus, knowledge consequences.” standing outside the sidered this to be bed- "unequivocal when the to the refers highly reading This a room. charitable every relating nature of other statement Moreover, testimony, Edmonds's however. affidavit,” 9, guilt Maj. Op. in the at 814-15 n. dissent, my discussed later in Smith has relying remarkably it on a small amount carrying rope admitted to a into the house text. garage. rope from the Konzelmans' This by police found on floor of bedroom. logic, 30. As a matter of I must admit formal basis, provides strong independent a This being by majori- somewhat baffled how the apart testimony, from Mrs. Konzelman's ty manages presumption to accord a which to conclude that entered the truth bedroom. Konzelman conflicting to two statements. majority argues remedy 33. The that its is not affidavit, In the 1996 he states extraordinary, Maj. Op. at but I would perjury by was motivated a fear that he would say according presumption which unjustly convicted of a crime that did any have never before accorded—in context-— commit, not while the 2001 affidavit identifies clearly to an area where our cases have estab- mercenary a more desire to limit the term of particular remedy should be lished is, definition, applied by extraordinary. his incarceration. remedy entirely that is alien to our case defendants bear the proving burden of af- law and that does not suit the by facts firmative defenses a preponderance of 161.055(2). case. § the evidence. Id. must prove, by therefore a preponderance Actual Schlup C. Innocence and the evidence, juror no reasonable Gateway would have found that he failed to meet indulging Even majority’s presump each of by preponder- these five criterion truthfulness, tion of actually Smith is not Or, ance of the put evidence. another innocent. Not even close. legal As a mat way, Smith must show that is more ter, affidavits, believed, Edmonds’s likely even than not that every juror reasonable completely fail to exculpate felony Smith of would find that every Smith established In murder. order to pass through Or, element of his affirmative defense. Schlup’s gateway, “actual innocence” rephrased time, a third Smith must show “petitioner show that ‘a [must] constitu preponderance of the evidence that tional violation probably has resulted in every juror who would find that Smith did actually conviction of one who is inno not establish his affirmative defense was ” Schlup, cent.’ 513 U.S. at 115 S.Ct. unreasonable. This is an extremely high Carrier, (quoting Murray 477 U.S. burden to overcome: If a single reasonable 478, 496, 106 S.Ct. 91 L.Ed.2d 397 could find that the evidence was (1986)). “To establish the requisite proba equipoise any on individual element of bility, petitioner must show that it is defense, Smith’s affirmative we must find more than not that no reasonable for the statе. juror would have convicted him in light Oregon’s elements of affirmative de- of the new evidence.” In determining Id. fense are easy not for a defendant to es- petitioner whether the has carried his bur A tablish. defendant must demonstrate den, evidence, courts consider all of the that he:

just that which presented at trial. Id. (a) Was not participant in the so, doing however, 327-28. courts crime; underlying must also reliability consider the of that evidence and augment or pro discount its (b) Did not commit the homicidal act or bative may value as be appropriate. Id.34 solicit, in any way command, request, case,

In this inquiry importune, compli- is more cause or aid the commis- thereof; cated than it would be sion ordinarily. Smith pled murder, no contest to because (c) Was not armed with a dangerous or Emmett Konzelman was murdered deadly weapon; course of Smith and burglariz- (d) Had no ground reasonable to believe ing the deny Konzelmans. Smith does other participant was armed his involvement burglary. with the In- with a dangerous deadly weapon; and stead, he rests his claim to innocence Oregon’s (e) affirmative felony defense to Had no ground reasonable to believe murder, which has separate five any criteria that participant other intended to that a satisfy. defendant must See Or. engage in likely conduct to result in 163.115(3) (2003).In § Oregon, death. Rev. Stat. notes, majority Maj. Op. (2006), As the see at L.Ed.2d 1 Schlup

34. establishes that the Supreme Court's recent decision in House gateway actual innocence survives AEDPA. —Bell, -, U.S. 126 S.Ct. 163.115(3). by Schlup Oregon’s expansive ated and government con- § The Id. (a); element if ac- felony ‍‌​​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‌​​​​​‌‌​​​​​​​‌‌‌‌​​​​​‌​​‍has satisfied murder statute. Even one that Smith cedes however, of other four elements majority’s remedy each and cepts dubious contested. presump- accords Edmonds’s affidavits truth, tion of Smith has not carried his majority

Although disagree I (d), (c), of on and proof burden elements every question presented in this nearly on (e).36 I address each these elements case, thing least one I think there is at turn. simply beyond is not dispute that —it during the exactly happened what clear minutes and Edmonds

forty that Smith 1. Whether Smith “Was Not Armed the Konzelman residence. inside were Weap- Dangerous Deadly with a never a full account of given has Smith on” Ed- happened period, in this and

what majority relies Ed- heavily on given contradicting has numerous monds monds’s that Ed- recantations conclude accounts, is marred vari- each which killer, monds not Based was the Smith. Konzelman, sole biases. Elma ous conclusion, majority on reasons witness, was con- surviving, unbiased that there is no evidence in the record to relatively portion for a small scious suggest burglar i.e., that the other — are and her recollections under- burglary, any Maj. point. Op. Smith —was armed at standably hazy. somewhat below, I at 817-19. As discuss this is vague in- one combines the When true, simply not true. Yet even if it were state of evidence with the complete of actually proving Smith bears the burden proof imposed by Oregon’s affir- burden lack any that he not armed at a point; murder, mative defense to which If it more evidence is insufficient. that Smith bear the burden of requires any juror that than not reasonable elements, multiple Schlup, proof on fifty there was could find that at least requires petitioner demon- which that armed at percent chance Smith was every juror find strate who would any point during burglary, then the unreasonable, him was it becomes against Schlup gateway is closed Smith. Thus, prevail. clear that Smith cannot juror A have might reasonable well if the was correct that the even misconduct, finding made here. A reasonable such engaged prosecution Smith juror the two because, could have concluded suffer even prejudice did not burglars garage some testify consistently were conferred if Edmonds method, affidavits,35 emerged on no time their way with his there is with a consensus. satisfy daunting can cre- this conference clear Smith burden affidavit, presume Referring If we Edmonds’s affidavits to the second the ma- do true, is even these ele- jority even to be clearer that states “Edmonds's declaration example, strongly met. inculpated himself and excul- ments have not been For more story Maj. juror might has pated Op. as the find that Edmonds’s actual killer.” retelling changed drastically in each 809. But because Smith was convicted of so nothing was credible. That felony murder it no difference whether he said makes testimony to rely Elma actually Mrs. Konzelman. could Konzelman’s or not killed burglars says near each nothing about infer that the two were The affidavit the three lighted even Oregon’s felony bedroom and murder other contested elements of murder, defense, committed the if he cannot Edmonds had affirmative establish elements, seen Ed- establish that he had not any one of those Smith’s claim of carrying the monds crowbar. actual innocence fails. 846 zona, similarly 624, 627, 2491, 115

Both wore hats and knotted ban- 111 U.S. S.Ct. physical disguise appear- (1991); Brown, dannas to their L.Ed.2d 555 Sims v. gloves leaving ance. Both wore to avoid (9th Cir.2005); F.3d State v. fingerprints They the house. pro- inside Langley, 314 Or. 840 P.2d together, cured these items with each tak- (1992) (en banc).39 Oregon’s statutory af ing items from both Edmonds’s truck and firmative defense to murder re garage. They the Konzelmans’ estab- quires a defendant to establish that he was names, paired “High” lished code and not any dangerous armed with or deadly “Low,” to their further shield identities. weapon; it is insufficient to establish that hardly credulity It strains to conclude that carrying was not the weapon. murder carry both weapon decided to in the Thus, juror even if a reasonable concluded event that the residents should awaken crowbar, that Smith never handled the in they while were the house.37 Even juror may still conclude that Smith (which weapon one was available was was dangerous armed with a weapon be unlikely in garage to be the case full of carrying cause he was rope. tools), might the two have debated who carry If picked crowbar. Smith majority The argues that it does not first, up it or held it for a minute before matter that Smith carried rope be- Edmonds, giving it back pos- brief cause, majority concludes, is session would suffice.38 “dangerous weapon” Oregon under law.40 Maj. Op. at Oregon 818. law defines a

Then there is the rope. Smith’s trial “dangerous weapon” “any weapon, as de- attorneys both swore out stating affidavits vice, instrument, material or substance carrying Smith admitted to rope which under the in circumstances which it into the Konzelman residence and Ed used, is attempted to be used or threat- they monds stated that took it in case used, ened to readily capable should is need to restrain of caus- their victims. Nothing ing death or physical injury.” the record serious contradicts these Or. 161.015(1) § legal (2003); assertions. Our reporters Maj. are re Op. at Rev. Stat. plete “[tjhere with cases According where criminals have 818. majority, used to the See, ropes weapons. as e.g., Schad v. Ari no evidence suggesting that rope police revolver, 37. single The found knives next to the pipe, others are the the lead glove brown wrench, candlestick, bloodstained work outside the and the knife. See Konzelmans' residence. At least one of those (Alfred 1948). also ROPE Hitchcock knives was established to have come from the garage. argues Konzelmans’ As Smith majority argues 40.The I have "crea- appeal single that he wore a brown work tivefiy]” rope argument] [the “concocted out glove, easily a reasonable find that hemp,” of whole and that the state does not during burglary. carried knife argument. Maj. Op. raise this at 818. Since proving bears the burden of that he noting It is also worth even after their armed, entirely appropriate was not it seems evidentiary value unduly magnified has been rely undisputed on the fact that he carried presumption of truth that the rope assessing whether he has met that them, grants provide Edmonds's affidavits no burden, regardless of whether the state has insight direct as to whether Smith was armed creativity, my raised this issue. As for own any point. imagination pales comparison to the ma- jority's opinion sweeping, draws I as- perception hardly note also that —its tounding legal scraps limited to the conclusions from the tiniest example, world. For popular game applies board Clue rope unrequested, features a evidence and an nev- possible one of the weapons. murder remedy. er-before-seen

847 dangerous majority gives or dead- es. Yet the qualified this case a short shrift to [as issue, ly weapon].” legal blithely Id. at 818. This contention is standards at brush- Oregon interpreted ing courts have a aside relying absurd. concerns on its See, “dangerous weapon” quite broadly. questionable assumption that Edmonds Hill, 270, e.g., likely v. 298 Or. 692 P.2d 100 was State killer. banc)

(1984) (en (automobile); State v. (1990) Reed, 277, Or.App. 101 790 P.2d 551 2. Whether Smith “Had No Reason- (concrete Bell, sidewalk); v. 96 Or. State able Ground to Believe That [Ed- (1989) 74, (cowboy 771 P.2d 305 App. Danger- Was Armed with a monds] Gale, boots); Or.App. v. 583 State 36 Deadly Weapon” ous or (1978) (can opener); P.2d State majority’s analysis of whether (1978) Jacobs, Or.App. 579 P.2d 881 Smith knew Edmonds was armed is no (hot water). burglars attempt When to tie more satisfying than its determination that up awakened victims in the middle of the not armed. Based was on the fact night, rope they certainly is use “readi- dark,41 the house was and the fact ly capable causing death or serious testimony that Edmonds’s as to when Cornell, injury.” physical State v. Cf. unclear, and Smith entered the house was (1992) (en 394, 396, Or. 842 P.2d every concludes that reason- banc) (upholding a murder convic- juror able conclude that Smith being tion where victim died as a result of companion failed to notice that his was by burglar). point, bound At one Ed- a toting three-foot-long Maj. crowbar. Op. they rope monds testified that took the so at 819-20. they occupants they could bind the if majority ignores awoke. The this evi- I cannot agree. It would have been given dence. But that the victim in Cor- difficult for Edmonds to conceal a three- rope nell died when a was used as a re- crowbar, foot-long assuming he had wished straint, juror a hearing of this to, nothing and there is in the record to plan reasonably could conclude that suggest that Edmonds even attempted rope dangerous weapon, likely previ- such a concealment.42 As discussed physical injury cause death or serious ously, Smith and Edmonds were way. used this garage together for time disguising some themselves, names, logical paths assigning These are a few of the code and jurors might planning contingencies they reasonable have taken. before en- case, many A this where so details are tered the house. reasonable unclear, easily impossible weapon for Smith to meet conclude that Smith saw the evidentiary Schlup impos- burden that then.43 majority neglects majority attempts downplay 41. The to mention that the 43.The possibility, emphasizing burglary that the burglars visibility they problems had no while "haphazard unplanned” because "the picking through ga- were the Konzelmans' burglars ran in and out of the house due to rage. suggests The record that this was be- unexpected noises and left several items be- they light cause each carried used hind, including money Mr. Konzelman's source: Edmonds and Bouse each had a Maj. Op. undisputed wallet.” It lighter flashlight. Smith had initially burglars loud noise drove the Indeed, garage. they out of the it was after say anything 42. Edmonds's affidavits do not burglarize fled that decided to return and knowledge presence about Smith's merely the interior of the house instead of garage. point, they the crowbar. At that returned to the in plenty There is also of evidence the Smith never told that he them did not support finding carrying record to that Edmonds know Edmonds was the crowbar. Indeed, it precisely and Smith entered the house at or around was concern over these persuaded issues that majority gives the same time. The short Smith’s two trial attorneys forgo this affirmative defense shrift one of Edmonds’s accounts of how plea bargain. and seek a they together the house ig- entered completely.44 nores others Even without majority’s inferences drawn from evidence, jury easily rely this on other “facts” fare no better. From Mrs. descriptions of how the two Konzelman’s statement that she was at- together they entered after disguised by person tacked one and Edmonds’s affi- together strongly themselves corroborat- davit’s bald assertion that “Smith never — by undisputed ed fact that Smith and bedroom,” entered the Konzleman’s[sic] adopted disguises Edmonds similar majority concludes that “Smith was —and conclude that Edmonds and Smith entered present when Edmonds struck Konzel- together, given which would have Smith an Maj. Op. man.” reasoning 820. This opportunity excellent to notice the three- First, problems. has several Mrs. Konzel- foot-long majority crowbar that the posits testimony man’s refutes Edmonds’s affida- conclusion, carrying. That point. vit on this testified that She both however, would be ma- inconvenient to the burglars entered the for a short bedroom Moreover, jority’s according case. Second, period of time. nothing Mrs. attorneys, though they even told Konzelman’s statement is inconsistent with him what he would have to prove order being present when she was beat- succeed, for his affirmative defense to en.45 Even ignoring question of who themselves, garage, disguised transcript police established question- Or consider this Thus, weapon. code names and obtained a ing Edmonds: they initially the fact that fled serves to Okay, alright, you Police: and then entered majority's position undermine the instead of the house? supporting money it. As for Mr. Konzelman's Edmonds: Yes. wallet, suggest the record does not living P: in the You’re room? burglars the flee, abandoned it in their haste to E: Yes. they but that never found it. Roger you P: Is [Smith] with then? event, their treatment of the wallet sheds little Uh, yeah. E: light burglars either on the discussion the two Or consider Edmonds's at Smith's garage had in the Konzelmans' or on the sentencing proceedings: question of how Smith would have been Prosecutor: Who went into the house first? to see a crowbar in Edmonds’s hand. Edmonds: I did. plenty 44. There is of evidence from which a you P: Did see Mr. Smith come into the jury burglars could conclude that the entered house? Consider, together. the house example, E: Yeah. excerpt from a statement that Edmonds long you P: How gave had been in the police: house when Mr. uh, point go [A]tthat we there we’re Smith came inside the house? standing by garage figure, and I before Ah, house], get proba- E: I don't know. we He came in [the wallet from inside the just bly right up, in case wake and we behind me. have to run, uh, ourselves, put that we mask hats Yet, needs, major- when it on and I fulfills other noticed that there was two hats so, ity hanging finds that garage subpoena "the state could hooks in the grabbed compel put testify, those and we truthfully, [Smith] them on and we him to uh, masked ourselves with bandanas and Edmonds ... was the killer.” Id. at 826 we went in the house.... explain n. 33. The does not how actually doing striking, the fact ed that Smith saw the crowbar while he standing a lone attacker does not was doorway there was of the Kon- prove burglar the second was not zelmans’ bedroom and Edmonds was beatings. dresser, present during Although standing the the beating before the began. the burglar Mrs. Konzelman saw second away doorway, from the was hit

walk she again, rope provides Once the another directly in the head with crowbar after- sticking point for Smith’s case. Smith ad- ward, she, point understandably, at which attorneys mitted to his took the to have lost visual track of her seems rope into the Konzelmans’ home. The surroundings burglar as the first continued crowbar was found in the Konzelmans’ beating entirely Mr. Konzelman. It is pos- kitchen, rope and the found on the burglar sible that the second returned to unlikely floor of the bedroom. It is doorway beating going the while the burglar carrying the it would have aban- on, vantage or that he moved to a point rope doned the the Konzelmans’ bed- hallway the from which he would not they room while were asleep and un- to Mrs. Konzelman visible but could still Similarly, touched. since the crowbar was Moreover, attack.46 see the the second kitchen, found in the the murderer had to burglar present need not have been for the carrying continue beating. after the attack. All required that is is that he had Thus, assuming even that Edmonds car- grounds to reasonable believe the first ried the rope, crowbar and Smith the the burglar was armed. Yet the con- placement objects ultimate of both implies otherwise, adopting cludes its own version that Smith and paths Edmonds crossed ignor- the facts incontrovertible and while Edmonds had the crowbar and ing contrary all evidence. rope, Smith the or that Edmonds took the rope I have scratched the beating. surface from Smith before the event, possible strong broad realm of conclusions that a either it is evidence juror might A point during reasonable have drawn. some the course of the bur- juror easily reasonable glary,47 have credited Smith knew that Edmonds was carrying Mrs. Konzelman’s and conclud- the crowbar.48 present, accomplices Smith could not have been but could must be aware are that his "testify!] truthfully” good that Edmonds killed Mr. armed. There reason to conclude majority merely Konzelman. If the persists felony means that a defendant who in the testify that Smith can that he did not kill the discovering after that his co-felon is armed is Konzelmans, why jury it is not at all clear precluded succeeding Oregon's under contrary testimony would credit his view over defense, affirmative even if the murder has course, from Edmonds. Of if Smith had seen already point. been committed at that Konzelman, Edmonds kill he would have to underlying regarding same inferences a de- crowbar, have seen the which would com- culpability fendant’s mental that animate this pletely foreclose his affirmative defense to fel- element of the affirmative defense—that ony murder. persists committing de- defendant spite presence the fact that of an armed majority's 46. This also casts doubt on the greatly criminal increases the risks that vic- suggestion that "the details about the actual applies equally tims well before and face — provide murder that Edmonds was able to case, beating after the in this since a second explained by could best be the fact that he (Mrs. Konzelman) victim was still alive and Maj. Op. was the attacker.” at 815 n. 11. testified vulnerable. Mrs. Konzelman also burglars Oregon specify 47. The continued to ransack her statute does when during the course of crime defendant home after the attack. burg knowledge evening hypothetical modest Even more implausibilities fact that recognize lary.50 burglars While the did not need majority’s argument. Smith disguises sug used and code names could was armed. It to know that Edmonds kill gest they did not intend to had reasonable would suffice Konzelmans, Maj. question atOp. that Edmonds was grounds to believe in burglars originally is not whether the certainly the armed. This was almost case ques tended to kill the Konzelmans. The again here. Recall tion is whether Smith had reasonable garage together plan- in the Smith were grounds to believe that Edmonds intended ning for time before entered the some conduct, engage potentially deadly to in of house. In the course of their discussion ample support evidence to there is names and Ed- disguises and code while Indeed, finding. juror such a a reasonable tools,49 rifling through was the Ed- monds might put well have found that Smith was may monds well have indicated intent on in notice as he stood the bedroom door him, just in carry weapon to inside with way visibly drug-addled and saw that a knowledge alone case. This would be lights Edmonds had turned on the and was enough to ruin Smith’s affirmative defense. waking up the Konzelmans. Even if one majority, all of this on Yet is lost majority’s accept highly were to con opinion whose takes the most narrow con- trived reasoning and conclude that Smith juror might ceivable view of what have any weapons could not see as he looked found, completely flouting Supreme room, into the the fact that Edmonds was holding Schlup. Court’s in intentionally arousing the house’s occu pants surely enough put was to on “Had 3. Whether Smith No Reason- extremely dangerous notice that conduct — able to Believe That Ground [Ed- outright resisting either violence from vic Engage Intended to in monds] Con- tims, imposition or the of some form оf in Likely duct to Result Death” dangerous keep restraint of the victims to seeking help likely them from majority The also makes short shrift —was jurors might forthcoming.51 what reasonable infer about majority's majority 48. The conclusion that "Smith like- 50.The mischaracterizes the district ly rope briefly dropped paused when he in court’s consideration of this issue. The ma- doorway the bedroom before contin- jority states that "The district court never ued on down the hall”—a conclusion based planned that Edmonds and Smith found solely rope fact on the that “the was found engage any violent conduct or dis- even ” just to the 'left door' bedroom —is fact, doing Maj. Op. cussed so.” at 820. In speculation highest Maj. Op. order. question the district did court not reach the nothing absolutely 817-18 n. 17. There is explicitly whether Smith and Edmonds had suggest the record that would that Smith planned engage in violent conduct or dis- dropped rope majority posits when possibility cussed because concluded pro- that he did. The cannot even nighttime burglary that the of a home that why dropped vide a reason Smith would have occupied sufficiently knew was was dan- point. rope juror at that A reasonable gerous conduct to foreclose affirmative easily very draw a multitude of different imply defense. To district court con- evidence. conclusions from this sidered whether conduct,” "planned engage violent garage 49. A chainsaw from the Konzelmans' to, highly among or would have needed mislead- the items that Edmonds stole and brought ing. back to his truck.

851 juror pos- that cause of death was “heart attack again, our reasonable yet And sibly being caused stress from struck far. As discussed go this need not even bound”); ... United States ex rel. earlier, very like- a reasonable (D.N.J. Hilton, F.Supp. v. 496 619 brought rope Brodie that Smith ly conclude 1980) (upholding murder convic- contemplated pur- house with the into the burglar asphy- tion of a whose victim was restrain the victims. using it to pose bound); being xiated as a result of Can- potentially peril- Burglaries often involve Smith, F.Supp. up is nistraci v. Tying victims ous circumstances.52 (S.D.N.Y.1979) (upholding a reckless mur- that is dangerous conduct highly asphyxiat- where victim was in cases such der conviction particularly result death — Molitor, bound); one, very being ed after State the victims are as this where (Mo.Ct.App.1987) (uphold- unexpectedly by S.W.2d elderly and are awakened conviction after victim night. ing felony murder in the middle of the burglars asphyxiated being as a result of Indeed, Oregon case law direct- there is bound). majority suggests that a Cornell, 314 Or. In State v. ly point. rope may qualify deadly as a or dan- (1992) (en 394, 396, 402 842 P.2d may that be true gerous weapon. While left; banc), burglar up tied his victim a rope quali- the this case does generally, result, asphyxiation. a the victim died prepared to fy. Edmonds and Smith were was convicted The defendant that rope the as a restraint. Given the use murder, Oregon Supreme Court and the restrained, died when so victim Cornell juris- Many other upheld the conviction.53 rope in such use of a danger the inherent under upheld have convictions dictions is clear. also, e.g., Hill v. patterns. similar fact See (8th Cir.1996) (same); legal factual Norris, Summarizing all of the 96 F.3d 1085 Artuz, majority that would re- 298 conclusions F.Supp.2d Cowan (S.D.N.Y.2000) to quire every juror reasonable draw (upholding felony murder just unreasonable their how medical examiner testified demonstrates conviction after during robbery a suffi- a is not majority "Edmonds himself of homicide 51. The states that house, entering any given there prior ciently to of whether stated refined measure any discussion between him had never been likely death. Smith and activity to result in any hitting anyone using or and Smith about tying up any occupants of Edmonds discussed Maj. Op. weapon anyone.” at 820. kind of They anticipated their the house. that Edmonds has The record demonstrates burglary might confrontational. planned turn times, multiple a opposite exact fact stated the injury Certainly likelihood of serious majority ignores. Edmonds also which the occurring circumstances under these death sentencing hearing that testified at Smith’s http:// average. See may greater than rope they bind the they so took (provid- www.fbi.gov/ucr/ 05cius/index.html occupants they if awoke. statistics). ing reporting definitions and Florida, majority on Enmund v. 52. The relies majority's "there [we]re statement 53.The 799-800, U.S. 102 S.Ct. and, plans engage in violent conduct to no to (1982) dispute to L.Ed.2d 1140 for statistics knowledge, weapons on hand with no Smith's robbery "generic that a residential Maj. Op. at patently false. which to do so” is Maj. Op. at 821 & n. 23. result in death.” burglars The record is clear opinions Supreme Court are bind- But while tying up contemplating the house's resi- were legal holdings, they ing precedent their clearly be violent conduct. dents. This would so for their statistical references. are not earlier, rope if, itself As I have discussed argues, the Enmund Even as the weapon. today, a are still valid the occurrence statistics Every ground point, evidence is. at this so Smith didn’t see construction of the conclude it, reasonable would have to reasonably and he could not have fore- night’s proceeded as fol- events any potential problems seen from the visi- Edmonds, deciding Smith and after lows: bly waking the drug-addled Edmonds visi- for Mr. burglarize the house look bly geriatric in the course of Konzelmans wallet, ga- returned to the Konzelman’s fact, In burglary. Smith felt so at rage together. They disguised then rope ease that he decided to abandon adopted code names. themselves there, carrying right he was then and However, contrary prior to Edmonds’s it into the room without ever dropping testimony, they carrying never discussed only a noticing the crowbar that was few weapon in case the residents —whom Smith, away from it. confident that feet they knew to be home—awakened. The Edmonds and the Konzelmans would have house, with Ed- two then entered the discourse, peaceful and harmonious then carrying three-foot-long monds crowbar proceeded down the hall to resume bur- fact, that Smith never touched. glarizing. completely He remained it, didn’t touch he didn’t even blissfully transpired unaware of what suspect have reason until him pull bedroom Edmonds had three-foot-long carrying crowbar (Ed- phone the wall kitchen out of that Edmonds made no effort to conceal. was, time, monds himself the same rope planned himself carried a pulling phone the bedroom out of the up to use tie the victims wall). Smith then left the house without that, contrary awoke—an idea to Ed- crowbar, seeing ever which Edmonds testimony, gotten monds’s he must have must have tossed in the kitchen as he ran own, on his since he and Edmonds never out of the house. Edmonds ran faster contemplated even what would do if Smith, though, than since both Edmonds up^ their woke tying up victims re- —but and were able to make it back to Smith sisting octogenarian victims who had been Edmonds’s truck at same time. rudely awakened in the of middle surprised everyone Smith was as else night leaving and then them there was to learn that Mr. had likely not conduct to result in death. Konzelman been spent forty and then min- Smith murdered and Konzelman Mrs. had been burglarizing utes the Konzelmans’ resi- assaulted. dence, though but even Edmonds wasn’t Unfortunately people for of Oregon, keeping track of where Smith was or Smith, fortunately and majority for doing during

what he was this entire does even consider the inferences that time, never had Smith reason to believe juror likely a reasonable draw. In- carrying that Edmonds was a three-foot- stead, majority engages one-sided crowbar, long contemplat- he was advocacy, cabining analysis narrowly its ing any conduct that was to result findings limit the universe of that a rea- death. then walked the Kon- so, might doing sonable make. bedroom, zelmans’ where he saw that Ed- majority infers elaborate conclusions monds, light who had turned the bedroom evidence, scraps from the tiniest of build- on, standing at the foot of the Kon- ing platforms leaps that it narrow between zelmans’ waking up. bed and was them complex game judicial hopscotch. of But put this did not Smith on notice that It I anything enough path; is difficult to trace their amiss because Edmonds placed join must have on the crowbar cannot them it. Miller, Dave on behalf of and

III. himself CONCLUSION in MDL the class members Case No. majority. disagree I with the vigorously 1439, Plaintiffs-Appellants, majority prima I finds a think misconduct prosecutorial facie case of v. none; I think that

where there was Exchange, Farmers Insurance majority prima should have addressed the Defendant-Appellee, by remanding it concocted to the facie case evidentiary hearing; an district court for majority I should not think prece-

have deviated from our Westerdahl Group, Inc.; Plan Farmers Administra- internally by presuming dent Group, the Farmers Inc. tor of Profit to be mutually conflicting affidavits Sharing Savings Trust; Plan Plan Ad- an remanding true instead of evidentia- Group, ministrator of the Farmers immunity. But ry hearing grant with a Plan, Employees’ Inc. Pension Defen- every right single I need not be one dants. points my position to render correct these I majority’s erroneous. If am and the Exchange, In re Farmers Insurance issues, any single correct on one of these Representatives’ Claims Overtime majority disposition has in its erred Pay Litigation, this case. egregiously, indulge But even if we most Miller, Dave on behalf of himself and innovations, majority’s legal in all of the the class members in MDL Case cannot the facts of this escape 1439, Plaintiffs-Appellees, No. guilty case. murder. He Schlup has no affirmative defense. The him, and no amount of gateway is closed EXCHANGE, FARMERS INSURANCE a crow-

prying tugging even with —not Defendant-Appellant, ‍‌​​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‌​​​​​‌‌​​​​​​​‌‌‌‌​​​​​‌​​‍rope get open. bar and a —can I respectfully dissent. Inc.; Group, Plan Administra-

Farmers Group, tor of the Farmers Inc. Profit Trust; Sharing Savings Ad- Plan Plan Group, ministrator of the Farmers Plan, Employees’ Defen- Inc. Pension dants. Exchange, In re Farmers Insurance

In re EX- FARMERS INSURANCE Representatives’ Claims Overtime CHANGE, Representatives’ Claims Pay Litigation, Pay Litigation, Overtime 16. The notes Maj. Op. one serious- at 823-24 n. cannot likely to risks advise Edmonds acting cynical question the with coun- majority's ly benefits testifying. read- While necessary ing appointed was "a seled advice. counsel Finally, prosecutor ample prosecution had “basis But also had another

Case Details

Case Name: Smith v. Baldwin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 23, 2006

Citation: 466 F.3d 805

Docket Number: 04-35253

Court Abbreviation: 9th Cir.