Thomas Cress v. CARMEN PALMER , Warden, Riverside Correctional Facililty

*The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THOMAS CRESS ,
Petitioner-Appellant,
v.
CARMEN PALMER , Warden, Riverside Correctional
Facililty,
Respondent-Appellee.
X---->
,----
N
No. 05-1798
Appeal from the United States District Court
for the Western District of Michigan at Lansing.
No. 04-00159—Robert Holmes Bell, Chief District Judge.
Argued: March 8, 2007
Decided and Filed: April 5, 2007
Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*
_________________
COUNSEL
ARGUED: Bridget M. McCormack, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor,
Michigan, for Appellant. Janet A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. ON BRIEF: Bridget M. McCormack, MICHIGAN CLINICAL LAW
PROGRAM, Ann Arbor, Michigan, for Appellant. Janet A. VanCleve, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Thomas Cress, is a
Michigan state prisoner serving a life sentence for first-degree felony murder. He appeals from the
district court’s order dismissing his second habeas petition, filed pursuant to 28 U.S.C. § 2254. The
petitioner contends that his due process rights were violated when (1) physical evidence related to
his case was destroyed after his appeals were completed, (2) the state post-conviction court rejected
as incredible the recantation evidence that he proffered, and (3) the state post-conviction court did
not grant him relief based on evidence indicating his innocence. The district court denied relief on
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the merits. Because the record establishes that the petitioner’s claims are not cognizable on habeas
review, we conclude that the district court should have dismissed the petition for lack of jurisdiction,
and we therefore affirm the order of dismissal, but for a different reason from that given by the
district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1985, a Battle Creek jury found petitioner Cress guilty of murdering Patricia Rosansky
and convicted him of first-degree felony murder, resulting in the imposition of a life sentence. There
were no eyewitnesses to the crime, and hair and semen samples recovered by investigators failed
to connect Cress to the murder. The main evidence introduced by the prosecution at trial consisted
of the testimony of several witnesses who said that Cress had told them that he committed the
murder. Cress appealed his conviction unsuccessfully and then sought post-conviction relief in state
court, again without success. In 1989, he filed a habeas petition in federal district court that was
dismissed on the merits. See Cress v. Grayson, No. 1:89-cv-01020 (W.D. Mich. Aug. 30, 1991).
On appeal, we affirmed the district court’s order of dismissal. See Cress v. Grayson, No. 91-2095,
1992 WL 31305 (6th Cir. Feb. 20, 1992).
In 1997, Cress brought a motion for a new trial in state court, claiming that he was entitled
to relief because key prosecution witnesses had recanted their testimony and another person had
recently confessed to committing the murder. The state court initially granted Cress’s motion for
a retrial, but reversed itself after reopening the matter and taking more evidence. The Michigan
Court of Appeals then reversed this denial of a new trial. People v. Cress, 645 N.W.2d 669 (Mich.
Ct. App. 2002). Finally, the Michigan Supreme Court reversed the Court of Appeals, after
remanding for a hearing on the issue of whether the prosecution had destroyed evidence in bad faith.
People v. Cress, 664 N.W.2d 174 (Mich. 2003). On remand, the state trial court found as a matter
of fact that no bad faith was involved in the conduct at issue.
Having exhausted his state remedies, Cress filed this second habeas petition, which was
referred to a magistrate judge for a report and recommendation. The magistrate judge subsequently
recommended that the petition be summarily dismissed because it was untimely and because it failed
to state claims cognizable on habeas. The district court ostensibly dismissed the petition on the
merits, concluding that none of the claims established a federal constitutional violation.
The district court denied Cress’s request for a certificate of appealability, but we granted the
request “with respect to Cress’s claims that: (1) the state courts improperly analyzed his claim that
the prosecution destroyed potentially exculpatory evidence; (2) the state courts improperly ignored
his recantation evidence; and (3) his continued incarceration in light of compelling evidence of his
actual innocence and another’s guilt violates due process and constitutes cruel and unusual
punishment.” The certificate also directed the parties to brief a fourth issue: “whether, because
Cress filed an earlier unsuccessful habeas corpus petition, the district court should have transferred
this petition to this court for consideration as a motion for an order authorizing the district court to
consider a second or successive habeas application pursuant to In re Sims, 111 F.3d 45, 47 (6th Cir.
1997), and if so, what effect the district court’s failure to transfer the petition has on the procedural
posture of this case.”
A. Destruction of Evidence
The record reflects that in 1992, after completion of Cress’s trial, direct appeals, and the first
round of state and federal post-conviction challenges, certain physical evidence relating to his case
was routinely discarded – in particular, “a sanitary napkin with sperm contained thereon and hairs
with at least one intact root, both of which were seized as evidence from the person of the deceased
or in close proximity thereto.” The destruction of this evidence was part of a statewide effort to

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increase storage space, pursuant to a request from the state police department that all local offices
review cases in which they had evidence in long-term storage at the state police facility, in order to
determine whether that evidence could be discarded. The clean-up effort was initiated when letters
with the relevant case numbers (but not names) were sent from the state police headquarters to
individual posts. The request forms sent to Battle Creek police, including one referencing Cress’s
case number, were reviewed and then signed by the post commander and forwarded to the
prosecutor’s office. Prosecutor Jon Sahli testified that when he received these forms, he had the
appeals secretary check the status of the relevant cases and, if the appeal was over, authorize the
destruction. Sahli asserted that someone had written “closed, no appeal” on the form pertaining to
Cress’s case, that he accordingly believed the case was completed, and that he signed the
authorization in May 1992. The evidence related to Cress’s case was discarded in the fall of 1992,
along with evidence from 69 other (mostly murder) cases, under the oversight of the state police
department’s long-term storage supervisor.
Cress now suggests that the destruction of evidence related to his case was motivated by the
pro se motion for transcripts that he submitted to the prosecutor’s office on May 8, 1992. A note
found on this motion drafted by Prosecutor Sahli’s secretary indicated that Sahli had said that
someone from his office should attend the hearing regarding Cress’s motion. Sahli later testified
that he did not recall being apprised of Cress’s motion for trial transcripts, but that if he was, then
he would have ordered that the on-duty assistant prosecutor handle the motion.
B. Recantation Evidence
The sole recantation evidence in the record consists of the transcript of an interview of
prosecution witness Candy Cross by a Battle Creek detective named Dennis Mullen and Mullen’s
testimony about this interview at a state court post-conviction hearing. The record does not contain
any sworn testimony from Cross. In the interview, she said that she knew nothing about Rosansky’s
murder before Cress was arrested and that she had always believed that he was innocent. Cross also
repeatedly insisted that she did not testify against Cress at trial. However, Mullen confronted Cross
with trial transcripts showing that she had, in fact, testified at trial to the effect that Cress had told
her on three separate occasions that “he had killed a girl named Patty and had put her in a ditch” and
that he had also driven Cross to the location where he purported to have left her body. When Mullen
continued to press her, Cross maintained that she had no recollection whatsoever of testifying
against Cress, but she did say that if she had so testified, “I . . . was mistaken because I would not
purposely tell a lie in court.” Cross also suggested that perhaps she “got confused” and testified
against Cress inadvertently, noting that lawyers “twist things” when questioning witnesses. Though
Cross never affirmatively stated in the interview that she had given false testimony against Cress,
she did state that if she had testified against him she was “willing to take it back.”
During this interview Cross also suggested that two other prosecution witnesses, her sister,
Cindy Leslie, and her brother-in-law, Walter Moore, may have testified falsely. At Cress’s trial,
Leslie testified that Cress had confessed to her that he had murdered Rosansky and that he had taken
Leslie to an area where he said that he had left Rosansky’s dead body. Leslie additionally stated that
Cress told her that he had hit Rosansky in the head and that Leslie returned to the area identified by
Cress with her sister and two other prosecution witnesses, who had then indicated to her that Cress
had told them “the same thing” and taken them to the same place. Leslie also testified at trial that
she contacted the police to report Cress shortly after this incident and that, although she was not
expecting a reward at the time of this report, she later received a $5000 reward from a crime tip
hotline. There is no indication in the record, other than uncorroborated hearsay testimony, that
Leslie’s trial testimony was untruthful or that she ever wavered from it.
Similarly, there is no evidence in the record that Moore himself ever recanted his testimony;
he committed suicide while in prison shortly after Cress’s trial. At trial, Moore had testified that

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Cress had asked him several different times whether he had ever had sex with a dead woman. He
also said that on a separate occasion Cress offered to show him “‘where Patty Rosansky was found’”
and then took him to a particular area. Moore further testified that after these incidents he had a
specific conversation about Rosansky with Cress while he was staying with him. He stated that after
the two had smoked a joint of marijuana, Cress “brought up the subject about – he said, ‘I killed
Patty Rosansky.’ . . . and he went into detail,” saying that he had raped her when she refused to have
sex with him, that he hit her with a tire iron because she was screaming, that he had meant only to
knock her out “because he was so scared,” but that he had actually killed her instead. According to
Moore, Cress confessed to him “that he still had her body for about three or four days after she was
dead, and he tried to have sex with her three times after that, after she was dead . . . . [before h]e took
[her] out to Fort Custer.”
At trial, Moore had also acknowledged that he was wanted by police at the time Cress made
the alleged statements to him and that after he had himself been arrested and confessed to his own
charges, he had requested to speak to the officer working on Rosansky’s case because he believed
he knew who killed her. Moore asserted that he had not been offered anything of value in exchange
for his initial statement, but he testified that after he told the detective about what Cress had said,
he entered into an agreement under which he would plead guilty to seven burglary-related charges,
another charge would be reduced, and a remaining charge “would be dropped for [his] testifying in
the Cress case.” He added that he had not been told how he should testify.
Finally, we note that when Cross later testified at a state post-conviction hearing, she refused
to recant her trial testimony. She said that her statements in her interview with Mullen were made
because “he intimidated [her]” and “threatened [her].”
C. Other Evidence of Actual Innocence
In his habeas petition, Cress also contended that convicted-murderer Michael Ronning’s
confession to the Rosansky murder proves Cress’s innocence and entitles him to relief. While
serving a life sentence without the possibility of parole for a murder in Arkansas, Ronning confessed
to the murder of Rosansky pursuant to an elaborate agreement arising from the efforts of Detective
Mullen. Mullen apparently contacted Ronning in Arkansas and indicated to him his belief “that
somebody had been convicted of a crime that he thought [Ronning] was guilty of.” Ronning
acknowledged that when Mullen first contacted him, he protested that he had never killed anyone.
However, he changed his story after Mullen “offered that [he] could come to Michigan to serve out
the remainder of [his] sentence if [he] was willing to . . . cooperate.” Many of Ronning’s family
members resided in Michigan, and Ronning indicated that attaining proximity to his family – as well
as his dissatisfaction with the Arkansas prison system – strongly motivated his subsequent
confession to the Rosansky murder. Apparently a serial killer, Ronning also thought that he might
be able to avoid a death sentence for any of the other murders he had committed by “work[ing] it
out through Michigan first because Michigan is a non-death penalty state.” Indeed, Ronning
explained that the agreement that he ultimately struck required any other states to return him to
Michigan, provided that he was convicted of homicide in Michigan.
Four witnesses testified that Ronning had at some point indicated to them that he was
confessing in order to be transferred to a Michigan facility. Most notably, Melissa Meyer,
Ronning’s half-sister, testified at the petitioner’s post-conviction hearing that Ronning had sent her
letters while he was still in Arkansas that said “he was working on something that could enable him
to spend his [s]entence in a prison in Michigan.” According to Meyer, when she later visited
Ronning he conveyed to her that implicating himself in Michigan murders was “his way of being
able to spend his [s]entence here in Michigan” but that, despite his confessions, he also insisted that
he was not actually involved in the Michigan murders. She said that Ronning had confided in her
that he had obtained all of the available transcripts for the Michigan murders from the secretary of

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a former attorney whom he had befriended, and that “he had read all of the transcripts and
documents involved in all the murders, and had memorized everything in detail to answer any
questions that could have been asked.”
Ronning refused to divulge specific information about crimes he had purportedly committed
in Michigan before he “reached an agreement with the prosecutor and the police force . . . in
Michigan.” The agreement eventually reached was ratified by the governors of Michigan and
Arkansas and permitted Ronning to serve the remainder of his sentence in Michigan, subject to his
undergoing a polygraph examination “as to the truthfulness of the numbers that were involved in
[his] confessions.” As a result, when Ronning took the polygraph test, he was asked only whether
he had committed three murders in Michigan; no specific reference was made to the Rosansky
murder. The polygraph examiner was of the opinion that Ronning’s answers about the number of
murders that he had committed in Michigan was truthful. After the polygraph, Ronning provided
what purported to be a full confession, parts of which corresponded to evidence in the record of
Cress’s trial. Other statements that Ronning made, however, conflicted with the evidence, and he
was unable to identify the location where he purportedly murdered Rosansky and disposed of her
body. Indeed, the videotape of his unsuccessful efforts to locate or even describe the crime scene
correctly was, in the assessment of the state court judge, “[p]erhaps the most compelling evidence
which cause[d] this Court to . . . conclude that Mr. Ronning is a false confessor.”
In 1996, Cress also underwent a polygraph examination, in which he denied participation
“in the killing of Patty (Patricia) Rosansky” or in “put[ting] Patty’s (Patricia Rosansky’s) body in
that wooded ravine (in or near Fort Custer).” He also denied telling anyone that he had killed
Rosansky. The polygraph examiner was of the opinion that “Mr. Cress was qualifiedly telling the
truth” in his responses to the few questions that he was asked, reporting as follows:
There are two reasons for the qualification of this opinion. First, in matters such as
this one it is common to have significantly greater amounts of detailed information
about the offense under investigation than was available here. Such detailed data
ordinarily provides a firmer basis for the formulation of relevant test questions and
for the development of specific testing procedures which contribute to the
interpretation of polygraphic data. Second, based upon discussions with Mr. Cress
during his polygraph examination, it was my impression that he has a somewhat
limited capacity for understanding the necessity for specific instructions that were
given during the testing. Although it is my opinion that neither of these concerns
was likely to have influenced significantly the outcome of Mr. Cress’s examination,
additional polygraph testing may be useful if there is an interest in clarifying their
role.
There is no indication in the record that Cress submitted to any further polygraph testing.
II. DISCUSSION
A. Standard of Review
“We review a district court’s legal conclusions in a habeas proceeding de novo, and its
factual findings for clear error.” Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003) (citing Vincent
v. Seabold, 226 F.3d 681, 684 (6th Cir. 2000)). When a petitioner “in custody pursuant to the
judgment of a State court” seeks habeas review of “any claim that was adjudicated on the merits in
State court,” a habeas writ may issue only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is “contrary to” federal law as determined by the
Supreme Court if either (a) “the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law,” or (b) “the state court considers facts that are materially
indistinguishable from a relevant Supreme Court case and arrives at an opposite result.” Hill, 337
F.3d at 711 (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). An “unreasonable application”
of clearly established federal law occurs if (a) “‘the state court identifies the correct governing legal
rules from the [Supreme] Court’s cases but unreasonably applies it to the facts of the particular state
prisoner’s case,’” or (b) the “state court invokes a Supreme Court case and unreasonably extends
its legal principle to a new context where it should not apply, or fails to extend it where it should
apply.” Id. (quoting Williams, 529 U.S. at 407).
B. Cognizability of Cress’s Claims
It is undisputed that the habeas petition underlying this appeal is Cress’s second habeas
petition and that it was reviewed by the district court without prior authorization of this court. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires such authorization, see
28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”), and the Supreme Court has recently made
clear that this authorization is jurisdictional. See Burton v. Stewart, 127 S.Ct. 793 (2007) (per
curiam) (district court lacks jurisdiction to review second habeas petition without prior authorization
from court of appeals).
However, when, as here, the original petition was filed pre-AEDPA, we must analyze
whether the second or successive habeas petition would have survived under the pre-AEDPA “abuse
of the writ” standard as set out in McCleskey v. Zant, 499 U.S. 467, 493-95 (1991). That standard
did not require prior authorization from the court of appeals and “allows a second motion containing
a new claim where the inmate can ‘show cause for failing to raise [the issue in the first motion] and
prejudice therefrom.’” In re Hanserd, 123 F.3d 922, 929 (6th Cir. 1997) (quoting McCleskey, 499
U.S. at 494) (alteration in Hanserd); see also McCleskey, 499 U.S. at 494 (“To excuse his failure
to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those
concepts have been defined in our procedural default decisions.”). “[T]he reasonable unavailability
of the factual basis for the claim” establishes cause for failing to raise the issue in the first habeas
motion. McCleskey, 499 U.S. at 497. The cause determination turns on “whether petitioner
possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the
first petition and pursue the matter through the habeas process. The requirement of cause in the
abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and
diligent investigation aimed at including all relevant claims and grounds for relief in the first federal
habeas petition.” Id. at 498 (citations omitted). In order to show prejudice, “a petitioner must
establish a constitutional error . . . [that] had a ‘substantial and injurious effect or influence in
determining the jury's verdict.’” Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
In this case, many of the events that underlie Cress’s current claims occurred well after he
filed his initial habeas petition in 1989. The fact that his second petition does not therefore
constitute an abuse of the writ under the standard set out above does not mean that his claims are
cognizable on habeas review, however. Indeed, if the three constitutional claims that form the
substance of this appeal had been included in his 1989 petition, they would have received the same
treatment to which they must now be subjected. For the reasons set out below, we conclude that
none of these claims is cognizable on federal habeas review.

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The easiest claim to analyze is the petitioner’s challenge to the validity of the state court’s
conduct of his post-conviction litigation, with respect to the denial of the opportunity to present
recantation evidence. As the district court noted, the Sixth Circuit has consistently held that errors
in post-conviction proceedings are outside the scope of federal habeas corpus review. See Kirby v.
Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002). We
have clearly held that claims challenging state collateral post-conviction proceedings “cannot be
brought under the federal habeas corpus provision, 28 U.S.C. § 2254,” because “‘the essence of
habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the
traditional function of the writ is to secure release from illegal custody.’” Kirby, 794 F.2d at 246
(quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)); see also Pennsylvania v. Finley, 481 U.S.
551, 557 (1987) (“States have no obligation to provide this avenue of relief, and when they do, the
fundamental fairness mandated by the Due Process Clause does not require that the State supply a
lawyer as well.” (citation omitted)). A due process claim related to collateral post-conviction
proceedings, even if resolved in a petitioner’s favor, would not “result [in] . . . release or a reduction
in . . . time to be served or in any other way affect his detention because we would not be reviewing
any matter directly pertaining to his detention.” Kirby, 794 F.2d at 247. “Though the ultimate goal
in” a case alleging post-conviction error “is release from confinement, the result of habeas review
of the specific issue[ ] . . . is not in any way related to the confinement.” Id. at 248. Accordingly,
we have held repeatedly that “the scope of the writ [does not] reach this second tier of complaints
about deficiencies in state post-conviction proceedings,” noting that “the writ is not the proper
means” to challenge “collateral matters” as opposed to “the underlying state conviction giving rise
to the prisoner’s incarceration.” Id. at 248, 247; see also Alley v. Bell, 307 F.3d 380, 387 (6th Cir.
2002) (“error committed during state post-conviction proceedings can not [sic] provide a basis for
federal habeas relief” (citing Kirby, 794 F.2d at 247)); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.
2001) (“habeas corpus cannot be used to mount challenges to a state’s scheme of post-conviction
relief”).
The petitioner’s other two claims relate indirectly and directly to his claim of actual
innocence. With regard to the destruction-of-evidence claim, the district court held that California
v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), the leading
cases on this issue, were inapplicable in this case because both Trombetta and Youngblood involved
the pre-trial destruction of evidence. The district court concluded that because the Supreme Court
has not clearly established that post-conviction destruction is a due process violation, the petitioner’s
claim in this regard could was not cognizable on federal habeas review. We agree, and we point out,
in addition, that the state court conducted a lengthy evidentiary hearing and concluded that there is
simply insufficient proof in this case to establish that the destruction of the stored evidence in
Cress’s case was carried out in bad faith. Even if Cress’s allegations of bad faith were true, there
is insufficient proof for us to conclude that the state court’s decision was unreasonable.
In addition, case law from this circuit supports the conclusion that Cress’s third claim is,
likewise, not cognizable. Cress contends that, given “overwhelming” proof of his innocence, his
continued incarceration violates his due process rights, an argument that has been characterized as
a free-standing innocence claim when not coupled with allegations of constitutional error at trial.
See Schlup v. Delo, 513 U.S. 298, 314-17 (1995) (explaining the difference between a procedural
innocence claim, which can permit a petitioner to transcend procedural obstacles that would
otherwise preclude review of underlying constitutional claims, and a substantive innocence claim,
which is “‘itself a constitutional claim’” (quoting Herrera v Collins, 506 U.S. 390, 404 (1993))).
In the wake of Schlup, we have repeatedly indicated that such claims are not cognizable on habeas.
See, e.g., Zuern v. Tate, 336 F.3d 478, 482 n.1 (6th Cir. 2003) (“The Supreme Court has held that
newly discovered evidence does not constitute a freestanding ground for federal habeas relief but,
rather, that the newly discovered evidence can only be reviewed as it relates to an ‘independent
constitutional violation occurring in the underlying state criminal proceeding’” (quoting Herrera,
506 U.S. at 400)); Staley v. Jones, 239 F.3d 769, 780 n.12 (6th Cir. 2001) (federal habeas

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jurisdiction “require[s] a claim of legal error in the original proceedings”). But see House v. Bell,
311 F.3d 767, 768 (6th Cir. 2002) (en banc), opinion after certified question denied, 386 F.3d 668
(6th Cir. 2004), rev’d and remanded, 126 S.Ct. 2064 (2006) (noting that “[t]he Supreme Court has
assumed that ‘in a capital case a truly persuasive demonstration of “actual innocence” made after
trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there
were no state avenue open to process such a claim’” and therefore certifying questions to state court
“in order to ascertain whether there remains a ‘state avenue open to process [petitioner’s
freestanding innocence] claim’” (quoting Schlup, 513 U.S. at 314 n.28 (quoting Herrera, 506 U.S.
at 417) (O’Connor, J., concurring))) (emphasis added in House)).
The Supreme Court considered a free-standing innocence claim in Herrera. There, the
petitioner brought a second habeas petition alleging, inter alia, that because newly discovered
evidence established his innocence, his execution would violate the due process clause of the
constitution. See 506 U.S. at 396-97. The Supreme Court held that, assuming the existence of such
a due process right, the petitioner’s showing of alleged innocence was not strong enough to entitle
him to federal habeas relief. See id. at 393, 417-19. The Court reviewed its habeas jurisprudence
and observed: “Claims of actual innocence based on newly discovered evidence have never been
held to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Id. at 400. Although the Court noted that
it had not previously held that a free-standing innocence claim was cognizable on habeas, it would
. . . assume, for the sake of argument in deciding [Herrera’s] case, that in a capital
case a truly persuasive demonstration of “actual innocence” made after trial would
render the execution of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a claim. But because of the
very disruptive effect that entertaining claims of actual innocence would have on the
need for finality in capital cases, and the enormous burden that having to retry cases
based on often stale evidence would place on the States, the threshold showing for
such an assumed right would necessarily be extraordinarily high.
Id. at 417; see also id. at 419 (O’Connor, J., concurring) (“I cannot disagree with the fundamental
legal principle that executing the innocent is inconsistent with the Constitution. . . . [T]he execution
of a legally and factually innocent person would be a constitutionally intolerable event.”). Applying
this somewhat amorphous and hypothetical “extraordinarily high” standard, the Court concluded that
the evidence proffered by the petitioner fell “far short of any such threshold.” Id. at 417; see also
Schlup, 513 U.S. at 316 n.32 (“In Herrera, it was not necessary to determine the appropriate
standard of review because petitioner had failed to make ‘a truly persuasive demonstration of “actual
innocence”’ under any reasonable standard.”).
We first point out the obvious – that this is not, in fact, a capital case. But, even given that
ostensible limitation, we conclude that the new evidence proffered in this case simply cannot satisfy
the hypothetical Herrera standard. Cress has presented a weak, unsworn recantation statement from
one of several witnesses who testified at trial concerning the petitioner’s repeated admissions of
guilt; a confession from someone who was strongly motivated to confess falsely for ulterior reasons
and who, according to other testimony, admitted to having confessed falsely; and a “qualified”
polygraph report. Although this evidence, if presented at trial, might have weakened the
prosecution’s case against Cress, after he was convicted in a trial free of constitutional error, the
burden of proof shifted to him. See Herrera, 506 U.S. at 400 (“Once a defendant has been afforded
a fair trial and convicted of the offense for which he was charged, the presumption of innocence
disappears.” (citation omitted)). Clearly, it is a burden that the petitioner in this case has not been
able to carry successfully.

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III. CONCLUSION
For the reasons set out above, we conclude that the petitioner has failed to establish that the
claims brought in his second habeas petition are cognizable on habeas review. It follows that the
district court correctly dismissed the petition, and we AFFIRM the district court’s judgment to that
effect.

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