Criminal law - new evidence in gateway claim of actual innocence requires evidence not previously available at trial - Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011).

• Author: Cashman, David

The writ of habeas corpus is a mechanism that allows prisoners to challenge the legality of their incarcerations. (1) The actual-innocence doctrine, which provides petitioners the ability to obtain review of procedurally defaulted claims, permits limited access to the writ in circumstances where a petitioner can produce new reliable evidence demonstrating probable innocence. (2) In Kidd v. Norman, (3) the United States Court of Appeals for the Eighth Circuit considered the meaning of "new" evidence as it pertained to a petitioner's gateway claim of actual innocence. (4) The court held that the petitioner failed to present new reliable evidence that would entitle him to review of his underlying constitutional claim because the evidence he provided could have been discovered at trial. (5)

In 1999, a Missouri state court sentenced Ricky L. Kidd to life in prison after a jury found him guilty of participating in the killing of two men. (6) Kidd filed a direct appeal, which the court denied. (7) Kidd subsequently filed a motion for post-conviction relief, alleging that his direct appeal counsel was ineffective for failing to argue that Kidd should not have been sentenced as a prior offender. (8) The Missouri Court of Appeals concluded that Kidd suffered no prejudice from his appellate counsel's failure to challenge Kidd's prior offender status, and affirmed the denial of his motion for post-conviction relief. (9)

Following the court's denial, Kidd filed a habeas petition in federal district court raising five new claims alleging the ineffectiveness of his trial counsel. (10) Kidd conceded that his claims had been procedurally defaulted by failing to raise them in his state court post-conviction proceeding, but claimed that he could overcome the default by introducing new evidence demonstrating his innocence. (11) The federal district court held an evidentiary hearing and denied Kidd' s habeas petition, ruling that most of his evidence was not new and that his only piece of new evidence was unreliable. (12) Kidd appealed the decision, challenging the district court's strict interpretation of new evidence. (13) The Eighth Circuit upheld the district court's ruling, asserting that a petitioner seeking to resurrect procedurally defaulted claims must present new evidence that was not available at trial through the exercise of due diligence. (14)

The common law writ of habeas corpus allows a prisoner or detainee to come before a court for inquiries into the lawfulness of the detainment. (15) By requiring that there be sufficient legal cause to detain a person, the writ safeguards the integrity of the criminal justice process, and thus came to be regarded in the United States as the "symbol and guardian of individual liberty. " (16) The Constitution protects the writ, providing that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. " (17) The Constitution, however, neither authorizes the federal courts to issue writs, nor defines the scope of federal habeas corpus review. (18) Recognizing the importance of safeguarding individual liberties, Congress enacted various pieces of legislation establishing the power of the federal courts to issue such writs. (19) Although such legislation unambiguously provided federal courts the power to issue writs, it failed to prompt the judiciary to expand the scope of habeas review beyond its original parameters; for years, federal courts continued to limit the scope of the writ as performing only the narrow function of testing the jurisdiction of the sentencing court. (20)

In the mid-twentieth century, as concerns over individual liberties gave traction to the concept of due process, the Court began to broaden the scope of habeas review. (21) Through several important decisions, the Court abandoned the limitation of habeas review to jurisdictional challenges. (22) This decision to broaden the scope of habeas review produced unintended consequences, however, as petitioners once limited in their ability to bring habeas claims began filing claims en masse, flooding the federal judiciary. (23) Specifically, repetitious and successive claims not only overwhelmed the federal courts, but also created a threat to the finality of state court judgments and to the principles of comity and federalism. (24) Recognizing the need to curb such abuse, both Congress and the federal courts set forth a variety of procedural barriers in an effort to once again limit access to federal habeas corpus review. (25)

Procedural barriers restored the number of habeas claims to a manageable level by barring the majority of frivolous habeas claims; however, they did so to the exclusion of legitimate habeas claims as well. (26) Aware that such barriers would unduly prejudice some wrongly convicted prisoners, the Court, in a trio of 1986 decisions, once again broadened the scope of permissible habeas claims by creating an "actual innocence" exception that would allow petitioners who could demonstrate probable innocence to obtain review of otherwise procedurally-barred claims. (27) However, in issuing these decisions, the Court failed to clearly articulate the evidentiary burden placed on petitioners making gateway claims of actual innocence, which resulted in diverging approaches. (28) In 1995, the Court clarified its evidentiary standard for actual innocence claims, positing that in order to obtain review of procedurally defaulted claims, a petitioner must present "new reliable evidence" in light of which it is more likely than not that no reasonable juror would have convicted him. (29) Once again, the Court was unsuccessful in establishing clear precedent because it did not precisely define what it meant by "new" evidence; consequently, courts have split as to what "new" evidence should require. (30)

In Kidd v. Norman, the Eighth Circuit considered whether the petitioner met the actual innocence exception as a gateway to resurrecting procedurally defaulted claims of constitutional error that occurred in the underlying trial. (31) The court noted that under Schlup v. Delo, a petitioner making an actual innocence claim must submit new reliable evidence that was not presented at trial. (32) The court acknowledged that the circuits disagreed as to what the Supreme Court meant by "new" evidence, commenting that both interpretations were subject to criticism. (33) In a relatively brief opinion, the court relied on Eighth Circuit precedent in holding that Kidd failed to present new evidence, reasoning that the evidence was not new because although it was not presented at trial, it was available at trial through the exercise of due diligence. (34) The court implied that its narrower interpretation of "new" might not be equitable where the underlying constitutional claim is ineffective assistance of counsel for failure to raise exculpatory evidence, but nevertheless concluded that it was bound by Eighth Circuit precedent. (35)

The Kidd court's decision is in line with precedent that has too broadly restricted habeas corpus claims. (36) Although the Eight Circuit's narrow interpretation of "new" evidence is correctly oriented toward respecting state court judgments, its approach is misguided for a number of reasons. (37) As an initial matter, it is troubling that Amrine v. Bowersox, which established Eighth Circuit precedent, failed to consider the majority' s specific language in Schlup that refers to newly "presented" evidence. (38) Rather, by adopting a newly-discovered rule, the Eighth Circuit requires petitioners to obtain new evidence post-conviction, a somewhat unrealistic expectation, while ignoring the importance of newly presented evidence in showing actual innocence. (39) Moreover, the burden for proving actual innocence in gateway claims is sufficiently stringent without requiring a petitioner to present newly-discovered evidence. (40) Indeed, two studies examining cases during the ten years subsequent to Schlup demonstrated that the vast majority of petitioners failed to satisfy the actual innocence threshold, regardless of which standard was applied, and more recent cases corroborate that the newly-presented rule under Schlup remains a high threshold to satisfy. (41)

Even if the Eighth Circuit declines to adopt the newly-presented evidence rule in all circumstances, at a minimum it should apply this standard in cases where the underlying claim is ineffective assistance of counsel for failure to present exculpatory evidence. (42) Even the United States Court of Appeals for the Third Circuit, which generally adopts the more restrictive approach, conceded that it would be inclined to apply the more liberal approach to claims of ineffective assistance of counsel for failure to raise evidence, recognizing that it would be unfair to apply the newly-discovered rule. (43) Furthermore, the United States Court of Appeals for the Seventh Circuit captured the inequity of applying the more narrow rule in such instances when it stated, "[i]f procedurally defaulted ineffective assistance of counsel claims may be heard upon a showing of actual innocence, then it would defy reason to block review of actual innocence based on what could later amount to the counsel's constitutionally defective representation." (44) Finally, application of the broader definition of the rule would not present any great threat to comity or federalism, as ineffective assistance of counsel claims must overcome a very onerous barrier. (45)

The court' s decision in Kidd is unfortunate not only because it perpetuates the wrong standard, but also because the court's hand was forced by previous Eighth Circuit decisions that applied the Amrine standard to claims beyond which the Amrine court had the opportunity to consider. (46) A thorough examination of Amrine reveals that the court never had the opportunity to evaluate the precise issue...