United States v. 2007-12-26 | 04-35253 | SMITH VBALDWIN | precedential | opinion |

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROGER PAUL SMITH, No. 04-35253
Petitioner-Appellant, D.C. No.
v.  CV-98-00059-OMP
GEORGE H. BALDWIN, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior Judge, Presiding
Argued and Submitted
June 18, 2007—San Francisco, California
Filed December 26, 2007
Before: Alex Kozinski, Chief Judge, and
Mary M. Schroeder, Stephen Reinhardt, Andrew J. Kleinfeld,
Sidney R. Thomas, M. Margaret McKeown,
Kim McLane Wardlaw, William A. Fletcher,
Raymond C. Fisher, Richard A. Paez, Richard C. Tallman,
Richard R. Clifton, Jay S. Bybee, Milan D. Smith, Jr. and
Sandra S. Ikuta, Circuit Judges.
Milan D. Smith, Jr., Circuit Judge, delivered the opinion of
the court, in which Kozinski, Chief Judge, and Kleinfeld,
McKeown, Wardlaw, Tallman, Clifton, Bybee and Ikuta,
Circuit Judges, join.
Raymond C. Fisher, Circuit Judge, filed a concurring
opinion, in which Schroeder, W. Fletcher, and Paez,
Circuit Judges, join.
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Stephen Reinhardt, Circuit Judge, filed a dissent, in which
Thomas, Circuit Judge, joins.
Sidney R. Thomas, Circuit Judge, filed a separate dissent.
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COUNSEL
Thomas J. Hester, Office of the Federal Public Defender,
Portland, Oregon, for the petitioner-appellant.
Kathleen Cegla, Assistant Attorney General; Erin C. Lagesen,
Assistant Attorney General (argued), Salem, Oregon, for the
respondent-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
We took this case en banc to correct a misconstruction of
the Schlup v. Delo, 513 U.S. 298 (1995), “actual innocence”
“gateway” by a divided panel of this court in Smith v. Bal-
dwin, 466 F.3d 805 (9th Cir. 2006), reh’g en banc granted,
482 F.3d 1156 (9th Cir. 2007). The panel erroneously held
that Petitioner-Appellant Roger Paul Smith could satisfy the
“actual innocence” standard to overcome “a procedural
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default of his claims insofar as they relate to his felony mur-
der conviction,” thus permitting him to proceed with his con-
stitutional claims. Smith, 466 F.3d at 807. We disagree, and
we affirm the decision of the district court.
While burglarizing the home of Emmett and Elma Konzel-
man, either Smith or his criminal companion, Jacob Edmonds,
bludgeoned eighty-seven-year-old Mr. Konzelman to death
with a three-foot long crowbar. After Edmonds told police
that Smith killed Konzelman, the prosecution offered
Edmonds a plea deal contingent on his passing a polygraph
examination. The results of the polygraph test were inconclu-
sive, but the examiner opined that Edmonds had answered the
questions truthfully and Edmonds entered the plea deal in
exchange for his testimony against Smith. Despite Smith’s
request, the prosecution did not reveal the results of
Edmonds’s polygraph.
Believing that Edmonds had passed the polygraph exami-
nation, and knowing that Edmonds would testify against him,
Smith entered a no contest plea to felony murder and first-
degree robbery. Edmonds has now changed his story and
claims that Smith did not kill Mr. Konzelman. Edmonds is
unwilling to testify on Smith’s behalf, however, because the
state has informed him that he will be prosecuted for the capi-
tal murder of Mr. Konzelman if he insists on claiming that
Smith was not the person who wielded the lethal crowbar.
Smith asserts that the state’s actions constitute prosecutorial
misconduct, and he argues that his failure to exhaust his state
court remedies should be excused because Smith can show
actual innocence, as well as cause and prejudice.
Although the resolution of these issues is not essential to
our analysis, in order to more clearly demonstrate Smith’s
inability to meet his evidentiary burden, we assume without
deciding that two of Smith’s arguments have merit: (1) the
state committed prosecutorial misconduct by threatening to
prosecute Edmonds for capital murder if he testified on
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Smith’s behalf; and (2) the proper remedy for the prosecu-
torial misconduct is to compel the state to grant use immunity
to Edmonds in an evidentiary hearing where Edmonds would
testify that he, not Smith, killed Emmett Konzelman.1 We do
not assume, and we expressly reject, the Smith panel majori-
ty’s decision to treat Edmonds’s affidavits as “credible, for
purposes of resolving the question whether Smith’s proce-
dural default should bar him from presenting his habeas
claims on the merits.” Smith, 466 F.3d at 828. Even indulging
the two cited assumptions, however, we conclude that Smith
has not satisfied the requirements of Schlup’s actual inno-
cence exception with respect to his conviction for felony mur-
der. We also hold that neither the actions of Smith’s first state
post-conviction trial counsel nor the state’s withholding of the
results of Edmonds’s polygraph examination constitute suffi-
cient cause and prejudice to excuse the procedural default
resulting from Smith’s failure to exhaust his state remedies.
I. Facts and Procedural Background
During the early morning hours of April 4, 1989, after
snorting methamphetamine, Smith, Edmonds, and Arlen Bouse2
decided to steal enough money or property to enable them to
purchase tickets for a rock concert the following night. The
group drove around several neighborhoods in Edmonds’s
truck searching for a good target. Ultimately, they discovered
a house with the garage door open belonging to Emmett Kon-
zelman and his wife, seventy-four-year-old Elma.
After parking Edmonds’s truck near the Konzelmans’ resi-
1We do not endorse the three-judge panel majority’s novel addition to
our requirement that the prosecution grant use immunity, but merely
assume it to show that even under this more stringent standard we must
affirm the district court.
2The record is unclear as to whether Mr. Bouse’s first name is “Arlen”
or “Marlin.” The district and magistrate judges both used “Arlen,” but the
sentencing transcript from the state court used “Marlin.”
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dence, all three men entered the garage. While in the garage,
Smith inadvertently caused the door connecting the garage to
the house to slam shut. Startled, the group fled from the
garage and Bouse was separated from Smith and Edmonds.
Bouse took a beer, a hat, and gloves from the garage and
returned to the truck to await Edmonds and Smith. Bouse
waited at the truck, but Edmonds and Smith did not return for
approximately forty-five minutes.
Although accounts of what happened next occasionally
conflict, testimony of several witnesses establishes all the fac-
tual elements essential to our analysis. Smith and Edmonds
returned to the Konzelman residence and burglarized the
house. Before entering the house, Smith and Edmonds spent
some time in the garage. While there, they found two hats to
wear as disguises. One man wore a baseball cap or a skull cap
and the other wore a fedora hat. Smith and Edmonds also tied
bandannas over their faces while in the garage. Both Smith
and Edmonds wore gloves, though it is unclear what kind and
how many. Edmonds stated that he wore white latex gloves
while Smith wore a pair of black leather gloves. Smith, how-
ever, has stated that he wore either one or two brown work
gloves. In the garage, Smith and Edmonds also found a three-
foot-long crowbar and a rope.
Edmonds provided extensive testimony about what hap-
pened in the Konzelmans’ residence at Smith’s sentencing
hearing (Sentencing Hearing) on November 6 and 7, 1989.
Smith’s attorney cross-examined Edmonds at the Sentencing
Hearing.
Q. Who turned the light on?
A. Mr. Smith.
Q. Where were you when he turned that light on?
A. Standing in the doorway.
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Q. Both of you were standing there in the door-
way?
A. Right.
Q. Who had the crowbar?
A. Mr. Smith.
Q. What did you have in your hand?
A. A rope.
Q. Why did you take the rope into the bedroom?
A. In case they woke up and tried to call the cops
or something.
Q. As the light was turned on, what did you see
Mr. Smith do regarding the two people in the
room, the other two, Mr. and Mrs. Konzelman?
A. I seen him just, ah, tell ’em to wake up.
Q. You heard that?
A. Yeah.
Q. Did you see them appear to wake up?
A. I seen Mrs. Konzelman appear to wake up,
yeah.
Q. Did you see Mr. Konzelman?
A. He didn’t wake up right away, so Mrs. Konzel-
man woke him up.
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Q. What happened next?
A. He started to get up and Mr. Smith said to lay
back down.
Q. Do you remember how he said that?
A. “Lay back down, old man.”
Q. Did Mr. Konzelman lay down?
A. No. I don’t think he heard him.
Q. What did you see Mr. Smith do then?
A. I seen him make a threatening gesture with the
crowbar first.
Q. And then after he made the gesture what did he
do?
A. I don’t know. I said, “I’m getting the fuck out
of here.”
Q. While you were in the—still in the room, Mr.
Edmonds, did you see anybody hit with that
crowbar?
A. No.
Q. Did you leave the room or did you stay?
A. I left the room.
Q. How far away did you go?
A. Garage.
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A. How long were you gone?
A. Couple minutes, waiting for him to follow me.
Q. Did he follow you out?
A. No.
Q. What did you do then?
A. I went back in to get him.
Q. When you came back in the bedroom, what
happened that you could see when you came
back in the bedroom?
A. I seen Mr. Konzelman laying on the floor.
* * *
Q. Where was Mrs. Konzelman?
A. Laying on the bed.
Q. Did it appear that anything had happened to
either one of those people while you were
gone?
A. Mrs. Konzelman, I couldn’t tell. Mr. Konzel-
man, there was blood on the bed.
Q. While you were there in the bedroom did you
see Mr. Konzelman move?
A. Yeah, he got back up on the bed.
Q. As he was doing that, what happened?
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A. Nothing. He just got back up on the bed and
him and he [sic] wife laid together.
Q. Did you see anybody hit after that?
A. No.
Q. When Mr. Konzelman crawled back on the bed
did he appear to have been injured?
A. Yeah.
Q. Why?
A. I don’t know. He just had a lot of blood all over
him.
Q. Did there appear to be blood more in one place
than any other place?
A. Yeah, the head.
* * * *
Q. When you first went into the room it didn’t
appear that either one of those people were hurt
or injured when the light first came on?
A. No, they just looked scared.
Q. You saw him gesture toward them, I think was
your term? You left the bedroom.
A. Yeah. I said, “Let’s get the fuck out of here.”
Q. Did Mr. Smith say anything; did he reply to
your statement, “Let’s get out of here?”
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A. No I didn’t give him time. I was gone.
Q. He could have said, “I’m coming.”
A. He didn’t say anything like that.
Q. But you didn’t hear anything?
A. Right.
Q. You said in the garage and coming back, then
you noted there was injuries?
A. Yeah.
Q. At least a lot of blood on the bed?
A. Yes.
Q. And blood on Mr. Konzelman?
A. Right.
Q. Was there anybody else in the house besides the
two Konzelman’s and you, and Roger Smith?
A. No.
Mrs. Konzelman testified at the same hearing, confirming
many of the details of Edmonds’s testimony.
Q. After he had come to bed what was the next
thing you knew that was going on that wasn’t
suppose to be happening?
A. That man standing in my bedroom looking at
me.
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Q. At that time, Mrs. Konzelman, do you remem-
ber one man or two men?
A. There were two men.
Q. Where in your bedroom were they, Ma’am?
A. One was in front of the dresser, the other was
in the door.
* * * *
Q. Was the light on or off at that time, Ma’am?
A. I can’t tell you that.
Q. At least there was two men. The light must have
been on.
A. I can—I could tell—I could see plainly.
Q. When no one answered, did you check to see if
your husband was there with you?
A. I did.
Q. Where was he?
A. He was still asleep right beside me.
Q. As far as you can remember—would you tell
the Judge what you remember next happening
with these two men and with you and your hus-
band?
A. Well, apparently my husband moved as if he
were going to—after I awakened him, as if he
were going to do something and the guy said,
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“Lay down old man.” And that’s about my last
memory. Until I felt (indicating) a hit across my
forehead.
The police later found the crowbar in the kitchen and the
rope in the bedroom. After the beating, Elma Konzelman lay
motionless in her bed until convinced the burglars had left the
house. She climbed out of bed and when she realized that the
intruders had disabled her phones she found her cane and
slowly made her way to a neighbor’s house to call for help.
Paramedics arrived quickly and rushed the Konzelmans to the
hospital. Elma Konzelman required surgery to implant a metal
plate in her head, but she survived. Emmett Konzelman died
approximately sixteen hours later as a result of his injuries.
Shortly after the attack on the Konzelmans, while the police
were interrogating Edmonds about an unrelated offense,
Edmonds mentioned that he had attended a Judas Priest con-
cert. An alert police officer recalled that a ticket stub from the
same concert was found in the street near the Konzelman resi-
dence on the morning following the burglary. Further investi-
gation revealed that the ticket stub belonged to Edmonds and
he confessed to participating in the burglary. Edmonds identi-
fied Smith and Bouse as his criminal companions and he
stated that Smith entered the Konzelmans’ bedroom and beat
them with the crowbar. Based on Edmonds’s description of
the events and his apparent credibility,3 as well as Mrs. Kon-
zelman’s statements to police and Smith’s history of violent
crime, police charged Smith with aggravated murder, felony
murder, burglary, two counts of robbery, and two counts of
assault.
Because Edmonds provided a statement indicating that
3When police told Edmonds that they found his ticket stub at the scene,
he put his head down on the table and began to cry. In addition, Edmonds
made statements to his cellmate in prison that corroborated the version of
events Edmonds gave to the police.
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Smith beat the Konzelmans, the state offered him a plea
agreement contingent on his passing a polygraph examination.
The results of the polygraph were inconclusive, but the exam-
iner stated that he believed Edmonds had answered the ques-
tions truthfully. As a result, the state entered a plea agreement
with Edmonds. Smith believed that Edmonds had passed the
polygraph and requested a copy of the results. The prosecu-
tion refused to give Smith the polygraph results, however,
because it believed that it could not admit the polygraph
results as evidence at trial and, thus, it was not required to
share them with Smith.
Smith faced prosecution for capital murder and he knew
that Edmonds would testify against him. Instead of proceed-
ing to trial, Smith elected to enter a plea agreement whereby
he pled no contest to felony murder and one count of robbery.
The state agreed to drop the remaining charges against Smith.
At Smith’s insistence, the state also dropped charges of hin-
dering prosecution against Jeanne Simons, Smith’s girlfriend,
whom Edmonds had previously implicated in the crime.
Although his attorney indicated that he was on some kind of
“mild sedative or tranquilizer” during the plea hearing, when
questioned by the judge, Smith replied that he did not feel
affected by the medication and that he understood what was
going on around him. After thoroughly reviewing the charges
and likely sentence with Smith, the court accepted Smith’s
plea. The sentencing judge stated that the evidence in the
record was sufficient to satisfy him that Smith “caused the
assault” and he imposed a life sentence with a minimum term
of 30 years in prison.4 Thereafter, Smith filed unsuccessful
direct appeals with the Oregon Court of Appeals and the Ore-
gon Supreme Court.
Smith then filed a petition for post-conviction relief in the
Oregon Circuit Court. He claimed (1) ineffective assistance of
4Smith does not challenge his sentence in the current federal habeas
petition.
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counsel because his trial lawyer failed to properly advise him
of potential defenses and “hounded” Smith into pleading no
contest, and (2) a violation of his due process rights both
because Edmonds’s plea bargain wrongfully exposed Smith to
“greater consequences for his acts than are legally justifiable”
and because Smith was on drugs when he entered his plea,
thus rendering it unknowing and involuntary, notwithstanding
his contemporaneous report that he felt unaffected by the
drugs. The Oregon Circuit Court denied Smith’s petition on
the merits and also denied his request for appointment of new
counsel.
The Oregon Court of Appeals appointed new counsel for
Smith. On appeal, however, Smith argued only that the Ore-
gon Circuit Court that heard his post-conviction claims should
have appointed new counsel for him; he did not challenge the
denial of his substantive post-conviction claims on the merits.
The Oregon Court of Appeals affirmed without opinion the
Circuit Court’s refusal to appoint new counsel for Smith and
the Oregon Supreme Court denied review. Accordingly,
Smith never presented his substantive post-conviction claims
to the Oregon Supreme Court, and thus they are procedurally
defaulted.
Meanwhile, Edmonds completed his sentence for the Kon-
zelman robbery and was released from prison. In 1992,
Edmonds was arrested on various charges of rape, sodomy,
and kidnapping with a firearm, to which he pleaded no contest
and was sentenced to life in prison.
On February 16, 1996, Edmonds signed an affidavit read-
ing, in pertinent part:
On April 4, 1989, myself, Roger Smith and Arlen
Bouse were involved in a residential burglary. On
the above date mentioned Emmit Konzleman [sic]
was bludgeoned to death at the adress [sic] of 3030
South Shore Drive, Albany, OR.
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After all incidents occured [sic] and I had been
apprehended and taken into custody. [sic] I stated in
a sworn statement that Roger Smith was my code-
fendent and had in fact bludgeoned Emmit Konzle-
man [sic] to death.
I would like to, for the record [sic] retract that
statement. Roger Smith did not kill Emmit Konzle-
man. [sic]
I am confessing right now that I committed pur-
gory [sic] with full knowledge of the consequences.
The reason I lied under oath was because my
attorney of record at the time Thomas Hill led me to
believe that Roger Smith was about to testify and
leave me to do a life sentence for a crime I did not
commit.
The only way for me to set the record straight is
to write this confession now.
Based on Edmonds’s recantation, Smith again sought post-
conviction relief in state court claiming that the recantation
constituted new exculpatory evidence. Smith also claimed that
his due process rights were violated because his trial counsel
failed to explain the difference between aggravated murder
and felony murder, and, given his below-average intelligence
and his use of drugs, the trial court further failed to adequately
explain the charges against him. The Oregon Circuit Court
granted summary judgment for the state and Smith appealed.
While the appeal was pending, Smith filed a motion for vol-
untary dismissal, apparently because he grew frustrated with
his attorney and the delays caused by the court granting exten-
sions of time. The court granted Smith’s motion for voluntary
dismissal of his state claims and Smith turned to federal court.
In 1997, Smith filed a petition for writ of habeas corpus in
the federal district court. Smith raised four substantive claims
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in his federal habeas petition: (1) the plea resulting in his con-
viction was not knowing and voluntary; (2) ineffective assis-
tance of counsel during the investigative and trial preparation
stages of his case; (3) ineffective assistance of counsel during
the plea negotiation/entry stage; and (4) ineffective assistance
of counsel in hearings before the Oregon Circuit Court.
While Smith’s federal habeas petition was pending, he
received another affidavit from Edmonds, dated July 24,
2001. That affidavit reads in pertinent part:
1. On April 4, 1989, I participated in a residential
burglary at 3030 Southshore Drive in Albany,
Oregon, along with Roger Smith and Arlen
Bouse.
2. I clearly recall the events relating to the burglary
and this affidavit is based entirely on my first
hand knowledge of those events.
3. During the course of the burglary, an elderly res-
ident of the home, Mr. Emmit Konzleman [sic],
was bludgeoned to death.
4. In the underlying prosecution of Mr. Smith and
myself, I falsely stated, under oath, that Mr.
Smith had bludgeoned Mr. Konzleman [sic],
when in fact I knew that he had not.
5. I recognize that my false sworn statement was
an act of perjury, and I acknowledged this when
I sent a sworn recantation to the Linn County
District Attorney in 1996.
6. I know that Mr. Smith did not bludgeon or oth-
erwise strike Mr. Konzleman [sic] and I know
that Mr. Smith never entered the Konzleman’s
bedroom, where the killing occurred.
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7. I was motivated to falsely implicate Mr. Smith
because my trial attorney and others counseled
that, by doing so, I could avoid prosecution for
murder or aggravated murder.
8. As a part of my plea agreement in the underly-
ing case, I was required to take a polygraph con-
cerning the murder and I was told that I neither
passed or failed that test but that the results were
inconclusive.
After receiving the new affidavit from Edmonds, Smith
amended his federal habeas petition to include two additional
claims: (1) Smith’s conviction was unconstitutional because
he was actually innocent of felony murder; and (2) Smith’s
due process rights were violated under Brady v. Maryland,
373 U.S. 83 (1963), when the prosecution made a deal with
the actual killer and failed to produce the results of
Edmonds’s polygraph test when requested.
After receiving a copy of Edmonds’s second affidavit, a
state prosecutor met with Edmonds and his newly appointed
counsel. The prosecutor informed Edmonds that if he insisted
on testifying in accordance with his recantations, the state
would seek to set aside his plea agreement in this case, sub-
jecting Edmonds to capital murder charges for killing Emmett
Konzelman. If, however, Edmonds reaffirmed his original tes-
timony identifying Smith as the killer, the state would agree
not to pursue perjury charges based on the contents of the
affidavits. Edmonds conferred with counsel and decided to
invoke his Fifth Amendment rights and refused to testify.
Smith argued that the state’s actions constituted prosecu-
torial misconduct intended to distort the fact-finding process
and he requested that the federal district court order an evi-
dentiary hearing and compel the state to grant use immunity5
5When a witness receives a grant of use immunity, “while the govern-
ment may prosecute the witness for an offense related to the subject matter
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to Edmonds under United States v. Westerdahl, 945 F.2d 1083
(9th Cir. 1991). The federal district court rejected Smith’s
claim of prosecutorial misconduct and denied his request for
an evidentiary hearing. The district court held that it was
unable to reach the merits of Smith’s habeas petition because
Smith had failed to exhaust his claims in state court. The dis-
trict court also concluded that Smith’s failure to properly
exhaust his state court remedies constituted procedural
default, which Smith could not overcome because he had
failed to demonstrate either actual innocence or cause and
prejudice. Smith appealed to this court.
A majority of a three-judge panel of this court held that
“because prosecutorial misconduct in connection with his fed-
eral habeas proceedings seriously interfered with Smith’s
ability to make the necessary showing under Schlup, and
because the resultant harm cannot be effectively remedied by
less intrusive means, the exculpatory testimony withheld from
the court as a result of the state’s actions must be presumed
to be true.” Smith, 466 F.3d at 806-07. As a result, the panel
majority concluded that “Smith satisfies the Schlup ‘actual
innocence’ standard for overcoming a procedural default of
his claims insofar as they relate to his felony murder convic-
tion . . . and thus Smith is entitled to proceed with his consti-
tutional claims.” Id. at 807. The dissenting judge argued that,
even assuming prosecutorial misconduct, “the evidence in this
case is still insufficient to qualify Smith for Schlup v. Delo’s
actual innocence gateway.” Id. at 829 (Bybee, J., dissenting).
We agreed to rehear this case en banc. We focus our analy-
sis primarily on whether Smith can overcome his procedural
default either by demonstrating actual innocence under Schlup
of the witness’s testimony, the testimony itself and any ‘fruits’ thereof
may not be used against the witness in any criminal case except a prosecu-
tion for perjury arising out of the testimony.” United States v. Lord, 711
F.2d 887, 890 (9th Cir. 1983).
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or by establishing cause and prejudice. Because we hold that
Smith fails on both counts, we affirm the decision of the dis-
trict court.
II. Standard of Review and Jurisdiction
Smith’s federal habeas petition was filed after April 24,
1996, and is thus governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
Woodford v. Garceau, 538 U.S. 202, 204, 210 (2003). We
review de novo the district court’s decision to dismiss the fed-
eral habeas petition for procedural default. Manning v. Foster,
224 F.3d 1129, 1132 (9th Cir. 2000). The district court’s
denial of an evidentiary hearing pursuant to AEDPA is
reviewed for abuse of discretion. Davis v. Woodford, 384 F.3d
628, 638 (9th Cir. 2004). We review the district court’s rele-
vant factual findings for clear error. Barajas v. Wise, 481 F.3d
734, 738 (9th Cir. 2007).
We have appellate jurisdiction over the district court’s
denial of the petition under 28 U.S.C. § 2253.
III. Analysis
Smith’s amended federal habeas petition raised six claims:
(1) lack of a knowing and voluntary plea; (2) ineffective assis-
tance of counsel during the investigative and trial preparation
stages of this case; (3) ineffective assistance of counsel during
the plea negotiation/entry stage of this case; (4) ineffective
assistance of counsel in hearings before the Oregon Circuit
Court; (5) actual innocence of felony murder, rendering
Smith’s conviction unconstitutional; and (6) violation of
Smith’s due process rights under Brady v. Maryland, 373 U.S.
83 (1963), when the prosecution made a deal with the actual
killer and failed to comply with Smith’s request to produce
the results of Edmonds’s polygraph test. The district court
declined to address these claims on the merits because it
determined that they were procedurally defaulted. The district
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court also denied Smith’s request for an evidentiary hearing
and found that the state did not commit prosecutorial miscon-
duct leading to Edmonds’s decision not to testify on behalf of
Smith.
On appeal, Smith argues that (1) his federal habeas claims
are not procedurally defaulted, (2) even if they are defaulted,
such default is excused because of actual innocence as well as
cause and prejudice, (3) Smith is at least entitled to an eviden-
tiary hearing, and (4) the state committed prosecutorial mis-
conduct.
Given our holding in this case and because it highlights the
weakness of Smith’s case, we assume, arguendo, that Smith
is entitled to an evidentiary hearing and that the state commit-
ted prosecutorial misconduct. As noted, however, we do not
presume Edmonds’s affidavits to be “credible, for purposes of
resolving the question whether Smith’s procedural default
should bar him from presenting his habeas claims on the mer-
its,” as required by the panel majority. Smith, 466 F.3d at 828.
Even if we assume that the state committed prosecutorial mis-
conduct by threatening to seek the death penalty against
Edmonds if he testified on behalf of Smith, and that the state
should be forced to grant use immunity to Edmonds at an evi-
dentiary hearing at which he would testify that he, rather than
Smith, killed Mr. Konzelman, Smith still cannot overcome his
procedural default because he cannot show either actual inno-
cence of felony murder or cause and prejudice from the
default.
A. Smith’s federal habeas claims are procedurally
defaulted.
[1] Before a federal court may consider the merits of a state
prisoner’s petition for a writ of habeas corpus, the prisoner
generally must first exhaust his available state court remedies.
28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509,
515 (1982). If the petitioner fails to present his federal claims
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to the state’s highest court, and if he is procedurally barred
from presenting those claims to the appropriate state court at
the time of filing his federal habeas petition, the petitioner’s
claims are considered procedurally defaulted for purposes of
federal habeas review. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999).
[2] Smith raises several constitutional claims in his federal
habeas petition, none of which he properly exhausted in state
court. In his first round of state post-conviction proceedings,
Smith abandoned all substantive claims and challenged on
appeal only the denial of his motion for new counsel by the
state trial court on post-conviction review. Smith abandoned
all federal claims raised in his second post-conviction action
when the court granted his motion to voluntarily dismiss the
appeal.6 Accordingly, Smith’s federal habeas claims are not
properly exhausted. In addition, his claims are procedurally
defaulted for federal habeas purposes because Oregon’s time
limit for filing petitions for post-conviction relief bar Smith
from now returning to state court to exhaust his remedies. Or.
Rev. Stat. § 138.510(3) (2005).
Smith presents two arguments on appeal to excuse his fail-
ure to raise his claims before the Oregon courts, neither of
which help him. Smith notes that, despite a petitioner’s failure
to exhaust his state remedies, a federal court will consider the
merits of a federal habeas petition when “circumstances exist
that render [the state post-conviction] process ineffective to
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)
(B)(ii). First, Smith argues that Oregon’s post-conviction pro-
cess was ineffective because, with respect to his first petition,
the original post-conviction court denied his request for new
counsel and, on appeal, the state court denied Smith’s request
to depose his trial counsel and the prosecutor. Second, Smith
6Smith did properly exhaust on direct review his Eighth Amendment
challenge to the length of his sentence, but he does not raise that claim in
his federal habeas petition.
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argues that Oregon’s post-conviction process was ineffective
because the post-conviction trial court denied his second peti-
tion by holding that it could not allow relief based on newly-
discovered evidence of actual innocence under Or. Rev. Stat.
§ 138.530(1) (2005).7 Smith claims that this ruling establishes
that Oregon’s post-conviction process was ineffective to pro-
tect his rights because it prevents the state post-conviction
court from considering evidence of actual innocence. There-
fore, Smith argues that his failure to exhaust state remedies
should be excused under 28 U.S.C. § 2254(b)(1)(B)(ii).
[3] We need not reach the merits of either of these argu-
ments, however, because these excuses for failure to exhaust
are irrelevant to our present inquiry. Smith needs no excuse
from the exhaustion requirement because he has technically
exhausted his state remedies through his procedural default.
The Supreme Court has noted that “[a] habeas petitioner who
has defaulted his federal claims in state court meets the tech-
nical requirements for exhaustion; there are no state remedies
any longer ‘available’ to him.” Coleman v. Thompson, 501
U.S. 722, 732 (1991). In cases such as this, where a petitioner
7Or. Rev. Stat. § 138.530(1) (2005):
(1) Post-conviction relief pursuant to ORS 138.510 to 138.680
shall be granted by the court when one or more of the following
grounds is established by the petitioner:
(a) A substantial denial in the proceedings resulting in petition-
er’s conviction, or in the appellate review thereof, of petitioner’s
rights under the Constitution of the United States, or under the
Constitution of the State of Oregon, or both, and which denial
rendered the conviction void.
(b) Lack of jurisdiction of the court to impose the judgment
rendered upon petitioner’s conviction.
(c) Sentence in excess of, or otherwise not in accordance with,
the sentence authorized by law for the crime of which petitioner
was convicted; or unconstitutionality of such sentence.
(d) Unconstitutionality of the statute making criminal the acts
for which petitioner was convicted.
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did not properly exhaust state remedies and “the court to
which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find
the claims procedurally barred,” the petitioner’s claim is pro-
cedurally defaulted. Id. at 735 n.1. In light of the procedural
bar to Smith returning to state court to exhaust his state reme-
dies properly, the relevant question becomes whether Smith’s
procedural default can be excused, not whether Smith’s fail-
ure to exhaust can be excused. Therefore, the exceptions to
the exhaustion requirement set forth in § 2254(b) are irrele-
vant to Smith’s petition. Rather, we must determine whether
we can excuse Smith’s procedural default under the applica-
ble exception to that rule.
B. Smith cannot overcome his procedural default.
[4] On federal habeas review under AEDPA, generally
“[w]e may not reach the merits of procedurally defaulted
claims.” Williams v. Stewart, 441 F.3d 1030, 1061 (9th Cir.
2006) (per curiam). However, a petitioner can overcome pro-
cedural default and obtain federal review of the merits of his
claim in one of two ways. First, a petitioner overcomes proce-
dural default if he presents sufficient evidence to “demon-
strate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at
750. To make this showing, a petitioner’s case must fall
within the “narrow class of cases . . . [involving] extraordi-
nary instances when a constitutional violation probably has
caused the conviction of one innocent of the crime.”
McCleskey v. Zant, 499 U.S. 467, 494 (1991). Second, a peti-
tioner may overcome procedural default by making “an ade-
quate showing of cause and prejudice” for his failure to
exhaust his state court remedies. Strickler v. Greene, 527 U.S.
263, 282 (1999). Because we conclude that Smith has demon-
strated neither actual innocence nor cause and prejudice, we
cannot consider the merits of Smith’s procedurally defaulted
federal habeas petition.
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1. Actual Innocence
We will excuse Smith’s procedural default if he can make
the requisite showing of actual innocence of his conviction for
felony murder. See Schlup, 513 U.S. at 315-16.8 In this con-
text, Smith’s “claim of innocence . . . is procedural, rather
than substantive” because it allows him to overcome proce-
dural default to obtain federal review of his substantive con-
stitutional claims on the merits. Id. at 314. Such a “claim of
innocence is thus ‘not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on
the merits.’ ” Id. at 315 (quoting Herrera v. Collins, 506 U.S.
390, 404 (1993)). In order to pass through the actual inno-
cence procedural gateway of Schlup, Smith must show that,
in light of all available evidence, it is more likely than not that
no reasonable juror would convict him of the relevant crime.
See House v. Bell, 126 S. Ct. 2064, 2076-77 (2006).9
8Based on the briefs, record, and oral argument, we conclude that Smith
challenges only the procedural default with respect to his conviction for
felony murder and not with respect to his conviction for robbery. Smith
does not offer any facts or arguments to support a claim of actual inno-
cence of the robbery conviction or to otherwise excuse his procedural
default concerning that conviction.
9We recognize that in Schlup the Supreme Court made the actual inno-
cence gateway available to a federal habeas petitioner who was convicted
following a jury trial, while in this case, Smith entered a no contest plea
in state court rather than proceeding to trial. We are aware of a potential
incongruity between the purpose of the actual innocence gateway
announced in Schlup and its application to cases involving guilty (or no
contest) pleas. See Bousley v. United States, 523 U.S. 614, 629-36 (1998)
(Scalia, J., dissenting). For purposes of our analysis, however, we assume
without deciding that the actual innocence gateway is available to Smith.
We do not determine whether the Schlup actual innocence gateway always
applies to petitioners who plead guilty (or no contest), but in this case, the
state has not raised the argument and, more importantly, Smith has failed
to satisfy the requirements of Schlup. Thus, the question is ultimately irrel-
evant for purposes of the habeas petition under consideration.
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[5] In this case, Smith pled no contest to felony murder, an
offense with which he was charged because Emmett Konzel-
man was killed in the course of the burglary committed by
Smith and Edmonds. Smith does not dispute his involvement
in the burglary, but instead rests his actual innocence claim on
Oregon’s affirmative defense to felony murder, which has
five statutory elements. See Or. Rev. Stat. § 163.115(3)
(2005). Had Smith gone to trial on the felony murder charge,
he would have had the burden of proving all five elements of
the affirmative defense by a preponderance of the evidence.
Id. § 161.055(2). Accordingly, to pass through the Schlup
actual innocence gateway, Smith must prove that it is more
likely than not that no reasonable juror would have found that
he failed to establish any of the five elements of the affirma-
tive defense by a preponderance of the evidence. See
Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003);
Griffin v. Johnson, 350 F.3d 956, 963-64 (9th Cir. 2003).
[6] Oregon’s statutory affirmative defense to felony murder
requires Smith to prove that he:
(a) Was not the only participant in the underlying
crime;
(b) Did not commit the homicidal act or in any way
solicit, request, command, importune, cause or aid in
the commission thereof;
(c) Was not armed with a dangerous or deadly
weapon;
(d) Had no reasonable ground to believe that any
other participant was armed with a dangerous or
deadly weapon; and
(e) Had no reasonable ground to believe that any
other participant intended to engage in conduct
likely to result in death.
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Or. Rev. Stat. § 163.115(3). Because Smith and Edmonds
both participated in the burglary of the Konzelman residence,
the state does not dispute that Smith has established element
(a). Each of the remaining four elements is contested. Even
though we assume, arguendo, that the state engaged in pro-
secutorial misconduct and that Edmonds would testify at that
hearing that he, not Smith, was the true killer, we hold that
Smith cannot meet his high burden of establishing actual
innocence of felony murder under Schlup because he cannot
meet the requisite evidentiary burden for all five elements of
his affirmative defense to take advantage of the gateway. Spe-
cifically, Smith cannot meet his burden under elements (b),
(c), or (d).
(b) “Did not commit the homicidal act”
[7] The second element of the affirmative defense requires
Smith to prove, by a preponderance of the evidence, that he
was not Mr. Konzelman’s actual killer. Or. Rev. Stat.
§ 163.115(3)(b). We have assumed for purposes of this analy-
sis that, granted use immunity, Edmonds would testify to this
effect. We do not assume, however, that every reasonable
juror would believe him.
Edmonds, taking the stand in Smith’s defense, would be
confronted with the numerous inconsistent statements he has
made under oath and to his cellmate in prison. He would have
his contradictory statements to the police read into the record
to impeach his credibility. He would be forced to refute his
prior testimony at Smith’s Sentencing Hearing, where he
recounted, in detail, seeing Smith with the crowbar in his
hand and threatening Mr. Konzelman, leaving, and returning
to find Mr. Konzelman battered on the floor and a pool of
blood on the bed where he had been lying. See Fed. R. Evid.
801(d)(1) (admitting prior statements to prove the truth of the
matter asserted therein where declarant testified under oath
and was subject to cross examination). This refutation would
be no less difficult for the fact that his prior testimony is sub-
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stantially corroborated by that of Mrs. Konzelman, the only
surviving victim of what occurred in the Konzelmans’ bed-
room. Edmonds’s prior testimony that Smith woke the Kon-
zelmans by turning on the lights and that he was standing
behind Smith in the doorway when Smith entered the room,
his description of the confrontation between Mr. Konzelman
and Smith, and his statement that he left the doorway shortly
before the beating occurred, all correspond to Mrs. Konzel-
man’s description of the same events, given in the same pro-
ceeding. The fact that the police found the rope (which
Edmonds admitted to carrying) in the bedroom is further evi-
dence that he was there.
Even Edmonds’s wholesale disavowal of parts of his previ-
ous testimony would not exculpate Smith. Edmonds would,
for example, have to reconcile the inconsistencies in the two
affidavits. In his February 1996 affidavit, Edmonds wrote
both that “Roger Smith did not kill Emmit Konzleman [sic]”
and that Edmonds lied because “Roger Smith was about to
testify and leave [Edmonds] to do a life sentence for a crime
[Edmonds] did not commit.” It is undisputed, however, that
one of them was the killer. His second, 2001 affidavit, on the
other hand, states merely that he committed perjury to avoid
being sent to prison. This would be consistent with the first
statement of his 1996 affidavit, but in tension with the second.
That second affidavit, which states categorically that “Mr.
Smith never entered the Konzleman’s [sic] bedroom, where
the killing occurred,” also contradicts Mrs. Konzelman’s testi-
mony that both burglars were in the room at one point, as well
as what Edmonds told the police under oath, and what he told
his cellmate while he was in prison.
[8] Edmonds would also have to convince the jurors that
they should believe him now, with no corroborating evidence,
when the statute of limitations on perjury has expired,10 and
10A perjury charge for Edmonds’s testimony at Smith’s Sentencing
Hearing would be barred by the statute of limitations.
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when he is serving a life term in prison, meaning that he faces
almost no consequences for lying to them now. Why would
a reasonable juror believe Edmonds, knowing that he was fac-
ing yet another story spun by a drug addict, kidnapper, rapist,
and admitted perjurer who, because of his current life sen-
tence, can now lie with impunity? Smith must not only show
that such a juror would find it more likely than not that
Edmonds was lying in his statements to the police, his cell-
mate, and to the court in his Sentencing Hearing testimony;
he must also show that every reasonable juror would find it
more likely than not that Edmonds, at long last, has decided
to tell the truth. We do not find it more likely than not that
every juror would do so.
[9] Edmonds’s recantation changes little. A reasonable
juror would still have sufficient evidence to believe that Smith
was more likely than not the real killer, and Smith certainly
cannot meet his burden by a preponderance of the evidence.11
11Curiously, our dissenting colleagues are unhappy that we make what
they refer to as “credibility findings,” Reinhardt, J., dis. op. at 16695, in
evaluating evidence a reasonable juror might review in making a Schlup
“actual innocence” determination in this case. They had no hesitancy in
making similar determinations themselves when they participated as en
banc members of the majority making a Schlup “actual innocence” evalua-
tion in Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc). In
Carriger, the allegedly exculpating witness had originally testified against
the petitioner, then testified in a post-conviction proceeding that he, him-
self, was the real murderer, then retracted the confession three weeks later.
Id. at 471-72. By the time the petitioner made a Schlup actual innocence
argument, the exculpating witness was unavailable to testify because he
was dead. Id. at 472-73. Nonetheless, the Carriger court deemed the con-
fession credible—when neither the state court nor federal district court in
the Schlup proceeding had witnessed it—and deem its subsequent retrac-
tion incredible. Id. at 473-76. Notably, the majority stated, “the fact that
[the accusing witness] confessed without immunity and overwhelmingly
against his own penal interest is a strong indicator of his reliability.” Id.
at 475. We respectfully suggest that our dissenting colleagues are being
inconsistent when they criticize us for drawing the opposite inference with
respect to a witness who thought he could recant, and possibly help his
partner in crime, without any personal consequences.
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Perhaps it is for this reason that our dissenting colleagues (and
the original panel majority) would have us adopt the novel
approach of simply accepting Edmonds’s affidavits at face
value, declaring them to exculpate Smith, and proceeding to
a hearing on his constitutional claims—a remedy with no sup-
port in relevant precedent. The dissents’ (and the original
panel majority’s) remedy goes well beyond the Schlup actual
innocence excuse for procedural default. Instead, the dissent-
ers (and the original Smith majority) appear to have fashioned
an additional, independent excuse that opens the gateway for
defendants alleging serious prosecutorial misconduct to pro-
ceed to the merits of their cases without complying with
AEDPA’s exhaustion requirements. That is not the law, and,
left unchanged, could potentially open a gaping hole in
AEDPA’s jurisdictional and exhaustion framework. It was
that error in law, combined with the panel’s other miscon-
structions of the Schlup gateway, not “the factual question
whether the evidence does or does not support an affirmative
defense,” Reinhardt, J., dis. op. at 16701, that required our en
banc review. The Schlup gateway exists only for those who
can demonstrate their actual innocence, which Smith cannot
do under Oregon law.
(c) “Was not armed with a dangerous or deadly weapon”
[10] The third element of the affirmative defense requires
Smith to prove, by a preponderance of the evidence, that he
“[w]as not armed with a dangerous or deadly weapon.” Or.
Rev. Stat. § 163.115(3)(c). We note that the retraction in both
Further, we note that this is not a true “credibility finding” based on a
lower court’s direct observation of a witness on the stand. It is quite the
opposite, in fact—here, we evaluate potential testimony that no judge or
jury has ever heard. It does not matter to our analysis whether the witness
is actually telling the truth—the purpose of a credibility determination—
but rather we care only whether all reasonable jurors would choose to
believe the proffered testimony.
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of Edmonds’s affidavits is limited to his “sworn statement”
but makes no reference to his testimony at Smith’s Sentencing
Hearing or what he told his cellmate. Moreover, while some
of the statements in the affidavit flatly contradict parts of his
Sentencing Hearing testimony (for example, that “Mr. Smith
did not bludgeon or otherwise strike Mr. Konzleman [sic] and
. . . that Mr. Smith never entered the Konzleman’s [sic] bed-
room, where the killing occurred”), it is completely silent
about the rest of his statements. If a reasonable juror could
somehow manage to believe every word in both Edmonds’s
affidavits, he or she could still find much to believe in
Edmonds’s Sentencing Hearing testimony that is not men-
tioned or contradicted in either affidavit.
[11] For example, at the Sentencing Hearing, Edmonds tes-
tified that he found Smith holding the crowbar in the Konzel-
mans’ bedroom, and that he shortly thereafter threatened Mr.
Konzelman with it. While he has disavowed his statement that
Smith was in the Konzelmans’ bedroom, he has not changed
his story that Smith was holding the crowbar. A reasonable
juror could still credit this part of Edmonds’s Sentencing
Hearing testimony, and find that Smith, at some point in the
evening, held the crowbar. A reasonable juror who found it as
likely as not that Smith held the crowbar at some point in the
evening would be compelled to find that Smith had failed to
establish the third element of his affirmative defense, and find
Smith guilty.
(d) “Had no reasonable ground to believe that [Edmonds]
was armed with a dangerous or deadly weapon”
[12] The fourth element of the affirmative defense requires
Smith to show that he “[h]ad no reasonable ground to believe
that any other participant was armed with a dangerous or
deadly weapon.” Or. Rev. Stat. § 163.115(3)(d). Even assum-
ing that a reasonable juror really believed the core of
Edmonds’s new story—that he, not Smith, was the true killer
—the record demonstrates that such a juror would still con-
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clude that Smith had reason to believe that Edmonds was
armed with a dangerous weapon, and thus that Smith’s affir-
mative defense to felony murder fails.
[13] It is undisputed that Emmett Konzelman died as a
result of being beaten with a three-foot-long crowbar at the
hands of either Smith or Edmonds. Assuming that Edmonds
was the killer, we do not believe that all reasonable jurors
would find by a preponderance of the evidence that Edmonds
successfully concealed such a large, curve-ended weapon
from Smith’s sight (three feet being almost the length of an
average baseball bat) during the forty-five minutes that
Edmonds and Smith were in the garage and burglarizing the
home.
It is undisputed that the crowbar came from the Konzel-
mans’ garage. Smith and Edmonds were in the garage
together planning their criminal enterprise for some time
before entering the house. Although the garage was dark, the
record suggests that Edmonds may have had a lighter and
Smith a flashlight. Whatever the light source, the record indi-
cates that Smith and Edmonds must have had sufficient light
to identify various objects within the garage, since they found
and removed from the garage, among other things, the hats
they wore to disguise themselves, the rope, and the crowbar.
If Edmonds located and removed the crowbar in the garage
before entering the house, a reasonable juror could easily con-
clude that Smith saw the crowbar at that time.
A reasonable juror could find that Smith and Edmonds
entered the house at or around the same time. In one account,
Edmonds told police that he and Smith “masked ourselves
with bandanas and . . . we went in the house.” In another
statement, Edmonds stated that he and Smith were together in
the living room immediately after entering the house. At
Smith’s Sentencing Hearing, Edmonds testified that he
entered the house first and Smith followed right behind him.12
12At the Sentencing Hearing, Edmonds, contradicting his statement to
the police, denied being near Smith during much of the burglary. A rea-
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Neither recantation addresses this issue. A reasonable juror
would likely conclude that it would have been highly improb-
able that Smith could have avoided seeing Edmonds carrying
a three-foot crowbar, either when they entered the house at
approximately the same time, or later while together in the
house, especially when the light was turned on.
The record also contains evidence that Smith had reason to
know that Edmonds was armed with the crowbar when he was
in the Konzelmans’ bedroom. Mrs. Konzelman testified that
when she awoke, she saw the attacker standing next to the
dresser in the bedroom while the other burglar briefly stood
in the bedroom doorway, before proceeding down the hall-
way. Mrs. Konzelman also testified that the attacker picked
up the crowbar from the ground before he began striking Mr.
Konzelman. Assuming Edmonds was the killer, a reasonable
juror could conclude that Smith saw the crowbar in the bed-
room, even if Edmonds was not holding it in his hand when
Smith briefly stopped at the bedroom door before the attack.
Furthermore, it is entirely plausible that Smith returned to the
bedroom doorway when he heard the beating, or that he
moved to a vantage point in the hallway from which he was
not visible to Mrs. Konzelman but could still see the attack.
None of these scenarios is contradicted by the evidence,
including Edmonds’s two recantation affidavits. Based on this
evidence, a reasonable juror could find that Smith had reason
to know that Edmonds was armed when in the bedroom where
he initiated the fatal attack.
sonable juror who thought that Edmonds was “attempting to pin the mur-
der on his partner in the robbery,” Reinhardt, J., dis. op. at 16702, might
conclude that the earlier version of the story, where the two were together
in the house, is the true statement. It would only be natural that a burglar,
trying to exculpate himself, would lie to place as much distance as possi-
ble between himself and his accomplice (and, by extension, the killing).
It would make little sense, by contrast, to lie about the two being in the
same room together when they were not.
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In addition, Smith admitted that he took a rope from the
garage and brought it into the Konzelman residence. The rope
was later found on the bedroom floor and the crowbar was
discovered in the kitchen. Accordingly, even assuming that
Edmonds carried the crowbar and Smith the rope, the ultimate
placement of the objects permits the reasonable inference that
Smith and Edmonds crossed paths while Edmonds had the
crowbar and Smith the rope, or that Edmonds took the rope
from Smith at some point before the beating.
Smith also entered a plea of no contest to the robbery
charge, which alleged that “the said defendant(s) . . . did use
a dangerous weapon, to-wit: a crowbar . . . .” It makes no dif-
ference whether Smith’s plea meant that Edmonds used the
crowbar (as opposed to Smith); it constituted an admission
that he knew the crowbar was used.
[14] Judge Reinhardt’s dissent criticizes us for “relying
almost entirely on Edmonds’s past statements” in determining
what really occurred that night. Reinhardt, J., dis. op. at
16695. Our colleagues are mistaken. We conclude only that
at least one reasonable juror—even one who believes
Edmonds’s new story that Smith did not wield the crowbar—
could still credit Edmonds’s earlier statements on more ancil-
lary matters, even in the light of contradictory contemporane-
ous testimony. While it might be reasonable to infer that a
“probable killer . . . attempting to pin the murder on his part-
ner in the robbery,” Reinhardt, J., dis. op. at 16702, would lie
about who actually crushed Mr. Konzelman’s skull with a
crowbar, a reasonable juror might nonetheless believe that
Edmonds was originally telling the truth about such things as
whether they entered the house together or separately—and,
if Edmonds testified differently today, that he would be lying
now only to exculpate his friend.
But, as Judge Reinhardt’s dissent notes, Edmonds would
not be alone—Smith himself could testify about the circum-
stances of the crime. His 1992 deposition testimony in his ini-
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tial post-conviction proceeding, however, would undermine
any current claim that he was unaware that Edmonds had a
crowbar with him in the house. One of Smith’s habeas claims
was that trial counsel had failed to properly pursue and advise
him about possible defenses. At the outset of the deposition,
counsel for the State Attorney General explained to Smith that
“[t]his is my opportunity to clarify what you are complaining
about in your petition.” When asked “what defenses do you
think that you had to this crime,” Smith stated that trial coun-
sel should have “raised the evidence” that “Edmonds did it
and not me.” When Smith was asked whether there were any
other defenses, Smith said he was not “legally adapted” to
respond. State counsel then offered to let Smith consult with
his lawyer:
Well, do you need to talk to your attorney to get
some idea of some other legal defenses that you
think he should have raised because this is the only
chance you’re going to get to tell me what you . . . .
The parties went off the record and Smith consulted with his
attorney. After noting for the record that Smith had consulted
with his counsel, the State attorney asked again, “What other
defenses do you think trial counsel should have raised on your
behalf?” Smith responded:
A. He should have raised the defense that what
happened that night was not intended to happen.
Q. You mean Mr. Edmonds didn’t intend to kill
those people?
A. Yeah.
Smith’s counsel clarified, “I think what he means is that he
[Smith] didn’t intend to kill anybody.” State counsel then
interjected, “But he told me earlier that Mr. Edmonds did the
killing, not him;” whereupon Smith further explained, “Well,
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like I didn’t know that he was going to do it.” Smith was
given additional opportunities to raise other defenses his trial
attorney should have raised, but not once during this deposi-
tion did he state that he had no reason to believe that
Edmonds had the crowbar.
If Smith was unaware that Edmonds had the crowbar—as
opposed to being unaware Edmonds had the intent to use the
crowbar to kill—he likely would have said so. That he did not
say so when given ample opportunity leads to the conclusion
either that he knew that Edmonds had a crowbar or that Smith
himself went into the bedroom with the crowbar. Throughout
the plea colloquy, two-day Sentencing Hearing, and his 1992
deposition, Smith never made the simple statement that he did
not know and had no reason to believe a crowbar had been
brought into the Konzelmans’ bedroom. The reason for this is
obvious.
[15] In sum, even assuming that, as a result of prosecutorial
misconduct, Edmonds would be entitled to use immunity at an
evidentiary hearing at which he would testify in accordance
with his recantations that he, not Smith, held the crowbar, and
even assuming that, notwithstanding his former sworn testi-
mony, the jury believed him, it is more likely than not that a
reasonable juror would conclude that Smith failed to establish
by a preponderance of the evidence that he “[h]ad no reason-
able ground to believe that any other participant was armed
with a dangerous or deadly weapon.” Or. Rev. Stat.
§ 163.115(3)(d). Even if Edmonds could convince a reason-
able juror that he, not Smith, was the killer, that reasonable
juror would still conclude that Smith had reason to know that
Edmonds was armed with a three-foot-long crowbar during
the burglary. Because a reasonable juror would conclude that
Smith failed to prove this element of his affirmative defense
by a preponderance of the evidence, Smith cannot pass
through the Schlup gateway.
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2. Cause and Prejudice
Although Smith has failed to show actual innocence under
Schlup, he can still overcome his procedural default if he
makes “an adequate showing of cause and prejudice” relating
to his failure to exhaust his state court remedies. Strickler, 527
U.S. at 282. To make this showing, Smith must “demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law.” Coleman, 501 U.S. at 750.
Smith argues that his procedural default is excused based on
cause and prejudice because (1) his state post-conviction
counsel was ineffective, and (2) the prosecution committed
Brady error by wrongfully withholding Edmonds’s polygraph
results. Both arguments fail.
Smith argues that cause exists to excuse his procedural
default because his first post-conviction counsel abandoned
his role as Smith’s legal representative by failing to depose
Smith’s trial counsel, the trial prosecutor, and the jail doctor.
At the first post-conviction trial proceedings, the state intro-
duced affidavits from Smith’s trial counsel and the trial prose-
cutor, and Smith argues that his post-conviction counsel’s
decision not to question these witnesses in a prior deposition
constituted ineffective assistance. In response to the court’s
questioning, Smith’s post-conviction counsel explained that
he did not depose these witnesses because they would not pro-
vide any assistance to Smith’s case. He stated that “it would
be to Mr. Smith’s detriment to question these people further
because, in my opinion, they would only further damage his
case rather than help.” Smith argues that his counsel’s inac-
tion prevented Smith from properly presenting his substantive
post-conviction claims in state court,13 thus constituting cause
for his procedural default.
13In his first state post-conviction petition, Smith alleged (1) ineffective
assistance of counsel because his trial lawyer failed to properly advise him
of potential defenses and “hounded” Smith into pleading no contest, and
(2) the violation of his due process rights because Edmonds’s plea bargain
wrongfully exposed Smith to “greater consequences for his acts than are
legally justifiable” and because Smith was on drugs when he entered his
plea, thus rendering it unknowing and involuntary.
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In order to establish cause for a procedural default, a peti-
tioner must demonstrate that the default is due to an external
objective factor that “ ‘cannot fairly be attributed to him.’ ”
Manning, 224 F.3d at 1133 (quoting Coleman, 501 U.S. at
753). Because “[t]here is no constitutional right to an attorney
in state post-conviction proceedings,” Coleman, 501 U.S. at
752, attorney ineffectiveness “in the post-conviction process
is not considered cause for the purposes of excusing the pro-
cedural default at that stage,” Manning, 224 F.3d at 1133. As
the Supreme Court has established, counsel acts as the peti-
tioner’s agent and thus any attorney error in post-conviction
proceedings is generally attributable to the petitioner himself.
See Coleman, 501 U.S. at 752-53.
[16] Smith seeks to avoid this rule by arguing that his post-
conviction counsel’s failure to depose the relevant witnesses
resulted in counsel abandoning Smith, which qualifies as an
external objective factor that caused Smith’s failure to exhaust
his state remedies. See id. at 754. Although Smith voiced his
disapproval of his post-conviction counsel’s strategic deci-
sions, he has failed to show that those decisions rose to the
level of an external objective factor causing the procedural
default. The alleged errors of his attorney in the first state
post-conviction trial proceedings did not prevent Smith from
thereafter raising his substantive post-conviction claims with
the Oregon Court of Appeals and the Oregon Supreme Court.
See Custer v. Hill, 378 F.3d 968, 974-75 (9th Cir. 2004)
(holding that a federal habeas petitioner could not rely on
state post-conviction attorney errors to overcome procedural
default when the petitioner did not preserve the substantive
claims by presenting them pro se to the Oregon Supreme
Court).14 When the state post-conviction trial court denied
14Smith’s reliance on our decision in Manning v. Foster, 224 F.3d 1129
(9th Cir. 2000), to establish cause based on attorney errors in the post-
conviction process is misplaced. In Manning, we held that a petitioner
could excuse his procedural default when post-conviction counsel errors,
“though not constitutionally defective, were not attributable to him
because they were both unauthorized and tainted by a conflict of interest.”
224 F.3d at 1135 (emphasis added). Smith has not alleged that a conflict
of interest caused the ineffective assistance of his post-conviction counsel.
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Smith’s request for new counsel, he elected to challenge that
decision alone on appeal, rather than also challenge the denial
of his substantive state post-conviction claims. Smith’s failure
to exhaust his state court remedies was thus independent of
any alleged errors committed by Smith’s post-conviction trial
counsel. Therefore, Smith’s allegation of ineffective assis-
tance of counsel during his first state post-conviction trial
does not constitute cause sufficient to excuse his procedural
default, and we need not address whether he has shown preju-
dice with respect to that claim.
Next, while Smith procedurally defaulted on his Brady
claim by raising it for the first time in his federal habeas peti-
tion, he argues that there is cause and prejudice to excuse the
default because the state wrongfully withheld the results of
Edmonds’s polygraph examination. The results of that exami-
nation, in which Edmonds stated that Smith killed Emmett
Konzelman, were inconclusive. The polygraph examiner nev-
ertheless gave his opinion that Edmonds had answered the
questions truthfully and the state followed through with its
plea offer to Edmonds. Smith requested a copy of the results
immediately, but the state refused to divulge them. Smith
claims that he assumed that Edmonds passed the polygraph
because it was an express condition of the plea deal offered
to Edmonds. When Edmonds’s second recantation affidavit
revealed that the results of the polygraph examination were
inconclusive, Smith again requested the results, and the state
finally gave a copy to Smith while his federal habeas petition
was pending in the district court. Smith contends that the
state’s withholding of the polygraph results for so long consti-
tutes cause and prejudice to excuse the procedural default of
his Brady claim.
Even assuming that Smith could show cause for the proce-
dural default of his Brady claim, he has failed to demonstrate
any “prejudice as a result of the alleged violation of federal
law . . . .” Coleman, 501 U.S. at 750. Under Brady, the prose-
cution may not withhold any evidence that is material and
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favorable to the accused. Brady, 373 U.S. at 87-88; United
States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007)
(en banc). “ ‘[T]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must
have ensued.’ ” Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir.
2006) (quoting Banks v. Dretke, 540 U.S. 668, 691 (2004)).
Prejudice ensues if the evidence that is withheld is consid-
ered “material.” Id. Evidence is material under Brady if there
is a “reasonable probability” that the outcome would have
been different if the prosecution had not withheld the evi-
dence. Jernigan, 492 F.3d at 1053 (citing Kyles v. Whitley,
514 U.S. 419, 434 (1995)). Generally, the test of materiality
is whether the evidence “undermines confidence in the out-
come of the trial.” United States v. Bagley, 473 U.S. 667, 678
(1985) (emphasis added). When the accused enters a plea
rather than proceeding to trial, however, materiality is deter-
mined by “whether there is a reasonable probability that but
for the failure to disclose the Brady material, the defendant
would have refused to plead and would have gone to trial.”
Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995).
[17] Under these standards, the results of Edmonds’s poly-
graph examination were not material, and thus the state’s
delay in revealing them was not prejudicial to Smith. In the
Oregon Circuit Court, where Smith entered his no contest
plea, the results of polygraph examinations are inadmissible
because they are “inherently prejudicial.” State v. Terry, 37
P.3d 157, 165 (Or. 2001); see also State v. Lyon, 744 P.2d
231, 232 (Or. 1987) (holding that polygraph test results are
inadmissible in Oregon courts even if the parties stipulate as
to their admissibility). Because they are inadmissible in Ore-
gon courts, the results of Edmonds’s polygraph examination
do not qualify as “evidence” for Brady purposes, let alone
“material evidence.” Wood v. Bartholomew, 516 U.S. 1, 6
(1995) (per curiam). Thus, it is not reasonably probable that
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the immediate disclosure of the polygraph results would have
influenced Smith’s decision to plead no contest rather than
proceed to trial because Smith “could have made no mention
of them either during argument or while questioning witness-
es” or at any other point in the trial. Id. Therefore, we find
that, even assuming that Smith could demonstrate cause, he
cannot show prejudice based on the state’s delay in revealing
the results of Edmonds’s polygraph examination because
those results are inadmissible in Oregon court. Accordingly,
Smith cannot overcome the procedural default of his Brady
claim.
IV. Conclusion
We hold that Smith procedurally defaulted the claims in his
federal habeas petition, and we cannot excuse his default
because he has failed to demonstrate actual innocence or
cause and prejudice. Accordingly, we do not reach the merits
of Smith’s petition.
We vacate Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006),
reh’g en banc granted, 482 F.3d 1156 (9th Cir. 2007), and we
affirm the decision of the district court.
AFFIRMED.
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Volume 2 of 2
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FISHER, Circuit Judge, with whom SCHROEDER, W.
FLETCHER, and PAEZ, Circuit Judges, join, concurring:
Although I concur in the result the majority reaches, I write
separately because I do not adopt all of its reasoning. Specifi-
cally, I would affirm the district court’s decision on narrower
grounds, relying solely on the determination that Smith can-
not overcome the high standard set by Schlup v. Delo, 513
U.S. 298 (1995), with respect to element (d) of Oregon’s
affirmative defense to felony murder. Thus, Smith cannot pass
through the “gateway . . . to have his otherwise barred consti-
tutional claim[s] considered on the merits.” Id. at 315 (inter-
nal citations and quotation marks omitted).
I agree we should assume there was prosecutorial miscon-
duct, generally for the reasons spelled out in Judge Rein-
hardt’s and Judge Thomas’ dissents. I am not persuaded,
however, that the facts of this case warrant skipping over the
Schlup gateway to remedy this misconduct. Smith’s problem,
even with Edmonds as a now-exculpatory witness, is his
inability to demonstrate that, on the record as a whole, no rea-
sonable juror would have concluded that he proved all the
necessary elements of Oregon’s affirmative defense to felony
murder.
I focus on the fourth element, which requires the defendant
to prove that he “[h]ad no reasonable ground to believe that
any other participant was armed with a dangerous or deadly
weapon.” Or. Rev. Stat. § 163.115(3)(d). The plain language
of Edmonds’ affidavits, in which he recants his previous state-
ments that Smith killed Mr. Konzelman, does not satisfy
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Smith’s burden with regard to this element. At most, the affi-
davits would establish that Smith was not the real killer, but
they do not resolve the separate question of whether Smith
“had a reasonable ground to believe” that Edmonds was
armed before he beat Mr. Konzelman with the crowbar.
To evaluate how a jury would likely resolve that question,
our Schlup review “must consider all the evidence, old and
new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of
admissibility that would govern at trial.” House v. Bell, 126
S. Ct. 2064, 2077 (2006) (internal citations and quotation
marks omitted). Although this is a closer question than the
majority indicates, I ultimately join its conclusion that Smith
has not met his burden of proof to warrant passing through
Schlup’s actual innocence gateway.
To characterize Edmonds’ statements as “occasionally”
contradictory is an understatement. Op. 16645. As Judge
Bybee described in his dissent from the three-judge panel
decision in this case, “Edmonds has given many accounts of
that evening, which together encompass nearly every possible
way that the burglary and murder might have occurred.”
Smith v. Baldwin, 466 F.3d 805, 831 (9th Cir. 2006) (Bybee,
J., dissenting), reh’g granted, 482 F.3d 1156 (9th Cir. 2007).
For the purpose of Smith’s element (d) argument, the discrep-
ancies regarding the Smith’s and Edmonds’ respective
comings-and-goings into the Konzelmans’ house are particu-
larly pertinent.
At different times, Edmonds has alternatively said that: (1)
Smith returned to the garage to obtain the rope and the crow-
bar after he and Edmonds had entered the house; (2) Smith
already had the crowbar in his hands when they entered the
house for the first time, and Smith returned to the garage only
to get the rope; or (3) Edmonds didn’t “have any idea where
the crowbar came in at,” because the first time he saw it was
in the Konzelmans’ bedroom. In each re-telling of this story,
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there have been periods when Edmonds was alone in either
the house or the garage while Smith was in the other location,
and the order of who followed whom into the house has often
changed. Depending on the time-line one accepts, Edmonds
could have entered the house either before or after Smith, and
removed the crowbar from the garage and carried it into the
house without Smith’s knowledge. See SR Dissent at 16696
n.10. A reasonable juror could adopt this interpretation and
conclude that Smith had no reason to know about the crowbar
before Edmonds used it to beat Mr. Konzelman.
Under Schlup, however, Smith must prove that it is more
likely than not that no reasonable juror would conclude that
Smith had a reasonable ground to believe that Edmonds was
armed. See, e.g., House, 126 S. Ct. at 2077; Carriger v. Stew-
art, 132 F.3d 463, 478 (9th Cir. 1997). Smith cannot satisfy
this high standard. Despite — or perhaps because of — the
inconsistencies, a reasonable juror most likely would find that
(1) there was a period when Edmonds and Smith were in the
same location when Edmonds had the crowbar before he used
it, and that (2) Edmonds could not conceal the three-foot
weapon from Smith during this time — indeed, that he had no
reason to do so. Because it is more likely than not that a rea-
sonable juror would conclude that Smith had a reasonable
ground to believe that Edmonds was armed, Smith cannot
meet his burden with respect to element (d) of Oregon’s affir-
mative defense to felony murder.
In reaching this conclusion, I do not feel it useful to specu-
late on the contents of Edmonds’ hypothetical testimony if he
were to testify at a hypothetical evidentiary hearing. I submit
this is largely irrelevant to our inquiry given the nature of the
cumulative record. Even if Edmonds testified that Smith did
not know that he was carrying the crowbar, we must “assess
how reasonable jurors would react to the overall, newly sup-
plemented record.” House, 126 S. Ct. at 2078 (emphasis
added). “If new evidence so requires, this may include consid-
eration of ‘the credibility of the witnesses presented at trial.’ ”
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Id. (internal citations omitted). We must evaluate how a jury
would respond to all of Edmonds’ statements, not just his
hypothetical, exculpatory version. Given the numerous incon-
sistencies and contradictions in Edmonds’ various accounts, it
is unlikely that reasonable jurors would find Edmonds’ new
testimony sufficiently credible to rule out that Smith knew
about the crowbar before Mr. Konzelman’s beating. See
Schlup, 513 U.S. at 330 (explaining that where “newly pres-
ented evidence may [ ] call into question the credibility of the
witnesses presented at trial,” then “the habeas court may have
to make some credibility assessments”). Therefore, viewed in
the totality of all the circumstances, Smith cannot show that
more likely than not, no reasonable juror would conclude that
he had a reasonable ground to believe that Edmonds was
armed. Consequently, regardless of Edmonds’ hypothetical
testimony, I conclude that Smith does not meet Schlup’s
actual-innocence gateway standard with respect to element (d)
of Oregon’s affirmative defense to felony murder.
REINHARDT, Circuit Judge, with whom THOMAS, Circuit
Judge, joins, dissenting:
Reading the majority opinion, one could hardly discern that
this appeal is about a case of egregious prosecutorial
misconduct—threatening a witness with execution if he testi-
fies favorably to the defendant. Instead, the majority engages
in a remarkable and creative act of hypothetical appellate fact-
finding and, on the basis of the testimony it believes might
have been given, concludes that the witness’s testimony and
that of others, whatever that testimony might have been,
would be of no consequence. Given that the threatened wit-
ness was the only person other than the petitioner who had
direct knowledge of the critical aspects of the events of the
evening in question and the only person other than the peti-
tioner who was capable of testifying to them, it is not surpris-
ing that the prosecutor failed to anticipate that any court, let
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alone an en banc appellate court, would determine without his
testimony having been adduced that whatever he said would
be of no significance, and that regardless of what his testi-
mony might be an evidentiary hearing could not have pro-
duced any material facts. Had the prosecutor realized that our
court could have reached such an unprecedented result, he
most surely would not have felt compelled to engage in so
extreme an act of prosecutorial misconduct. He would have
let the witness testify instead of threatening to have him exe-
cuted.
I.
In this case, Smith’s co-defendant, in order to avoid murder
charges and obtain a light sentence, turned state’s evidence
and agreed to swear that Smith, an accomplice to the robbery,
was the person who killed the victim. The facts, however,
showed that the co-defendant, himself, was more likely the
killer.1 Nevertheless, the co-defendant’s plan succeeded and
he was out of prison within three years of his plea agreement,
while Smith, who, according to the evidence, most likely
assaulted no one, pled no contest to felony murder in order to
avoid trial on a capital murder charge. Following his plea,
Smith received a life sentence.
The plea arrangement in this case was not unique. The par-
ticipant in criminal activity who confesses first and fingers his
fellow wrongdoer frequently receives a far lighter sentence,
even though he may have been the primary culprit and com-
mitted the more egregious act. As a result, his hapless asso-
ciate who played a lesser role often receives the harsher
punishment—sometimes even a death sentence.2 See, e.g.,
1See Smith v. Baldwin, 466 F.3d 805, 814-17 (9th Cir. 2006), reh’g en
banc granted 482 F.3d 1156 (9th Cir. 2007).
2The Supreme Court has recognized the inherent unreliability of an
accusation made by a defendant against his co-defendant. As the Court
explained in Lilly v. Virginia, 527 U.S. 116 (1999),
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Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989) (en
banc).
What is unique about this case is that when Edmonds, the
probable killer, attempted, seven years later, to recant and to
testify that Smith was not the murderer, the state prosecutor
succeeded in preventing an evidentiary hearing by threatening
to seek the death penalty against Edmonds if he testified
favorably to Smith. At the time of the threat, Smith had filed
his federal habeas petition asserting that he had not committed
a violent act against anyone and that, under Oregon law, he
was actually innocent of felony murder. Accordingly, he
asserted, he was entitled under Schlup v. Delo, 513 U.S. 298
(1995), to bypass his state procedural default and present his
claim that his conviction of felony murder was obtained in
violation of his constitutional rights.3 In seeking to bypass the
procedural default, Smith simply sought to have the federal
court examine those constitutional claims on the merits.
Not surprisingly, in response to the state’s threat to have
him executed, Edmonds, the likely killer, invoked his Fifth
Amendment privilege and refused to testify. As a result, the
district court found that a Schlup evidentiary hearing would
when one person accuses another of a crime under circumstances
in which the declarant stands to gain by inculpating another, the
accusation is presumptively suspect and must be subjected to the
scrutiny of cross-examination. . . . ‘Due to his strong motivation
to implicate the defendant and to exonerate himself, a codefen-
dant’s statements about what the defendant said or did are less
credible than ordinary hearsay evidence.’
Id. at 132 (quoting Bruton v. United States, 391 U.S. 123, 141 (1968)
(White, J., dissenting)). Despite this admonition from our highest court,
criminal convictions are still obtained on the basis of co-defendant accusa-
tions with great frequency.
3Smith also pled guilty to the robbery, but in his habeas petition he did
not deny his guilt of that offense and did not seek to set aside that convic-
tion or his sentence on that count.
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be a “pointless exercise” and concluded that, without the
admitted killer’s4 exculpatory testimony, Smith could not
establish actual innocence in a manner sufficient to overcome
his procedural default and to allow him to proceed on the
merits of his constitutional claims.
In short, the effect of the state’s prosecutorial misconduct5
—threatening to seek the death penalty against Smith’s key
witness if he testified favorably to Smith—was to deny Smith
the opportunity to develop the facts necessary to establish his
Schlup claim. Because of the state’s misconduct, Smith could
not overcome the procedural barrier to his receiving a hearing
on the merits of the alleged constitutional violations. Put dif-
ferently, the state’s threat to have Edmonds executed elimi-
nated the crucial—indeed, the only—evidentiary process that
would have allowed Smith to pass through the Schlup gate-
way and, as a result, present his constitutional claims in fed-
eral court.
4Although Edmonds never formally confessed to having killed Konzel-
man, he twice stated affirmatively, in his affidavits, that Smith was not the
killer. Given that Smith and Edmonds were the only two intruders in the
house when the attack occurred, the only reasonable inference from
Edmonds’s absolution of Smith is that Edmonds himself was the mur-
derer. Indeed, as the state itself acknowledged, “Edmonds has implicitly
admitted that he, rather than [Smith], was the killer, [even though] he has
never directly admitted as much.”
5There can be little doubt that the state’s actions qualify as prosecutorial
misconduct. As the panel opinion explained:
Threatening a potential witness for the defense with execution
constitutes prosecutorial misconduct far more coercive than that
present in any reported case of which we are aware. The cases in
which courts have considered the prosecution’s threats to charge
witnesses with perjury or other criminal offenses, have all
involved the possibility of far less serious punishment. . . . Here,
the prosecution’s unprecedented threat to seek the death penalty
against Edmonds if he testified that Smith was not the killer was
unquestionably coercive and constituted substantial interference
with Edmonds’s decision whether to testify.
Smith, 466 F.3d at 823 (citations omitted; emphasis in original).
16688 SMITH v. BALDWIN

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II.
The primary question before us is thus simply: what does
a federal court do when the state, by an act of gross prosecu-
torial misconduct, interferes with a habeas petitioner’s ability
to make a showing of his actual innocence in a manner that
would allow the federal court to excuse his state procedural
default? It is not a question we have faced before, nor a situa-
tion we are likely to face often. The majority seeks to avoid
answering the question by asserting that even had an evidenti-
ary hearing been held, Smith could not have proved his inno-
cence. Aside from the fact that this is somewhat like saying,
“We don’t need a trial because we know that the defendant is
guilty,” there is a fundamental flaw in the majority’s
approach. My colleagues do not evaluate Smith’s claim on the
basis of what evidence could have been adduced at an eviden-
tiary hearing. Instead, they base their decision on what
Edmonds said years ago, shortly after the killing, when he
was trying to shift the blame to Smith so that he would not be
subject to a lengthy term of imprisonment himself. The major-
ity’s mode of analysis obviously ignores the basic point that
Edmonds has filed affidavits retracting his earlier testimony
and is now, in offering to exonerate Smith, purporting to tell
the truth for the first time. Whether he did so shortly after the
killing or whether his current story is true can be determined
only when he is placed under oath and is subject to cross-
examination by both sides—in short, at an evidentiary hear-
ing.
Let me emphasize that the record is clear. As the district
court found, “The Linn County prosecutor’s office . . . warned
Edmond’s [sic] counsel that the district attorney would seek
the death penalty if Edmonds testified . . .” (emphasis added).
There can be no doubt about the prosecution’s goal in making
that threat. Critically, the prosecution did not threaten to seek
the death penalty against Edmonds if he turned out to be the
true killer. Rather, it threatened Edmonds with execution only
if he testified at Smith’s evidentiary hearing. That the state
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dropped its threat against Edmonds as soon as he declined to
testify—that it never investigated his statements or sought to
determine whether his recantation might be true—makes
crystal-clear the state’s purpose in threatening Edmonds with
the death penalty: to prevent Edmonds from testifying at
Smith’s hearing and exculpating Smith of felony murder.
The question we now face, as I have explained above, is
how should we consider Smith’s Schlup claim given that the
state’s misconduct has rendered an evidentiary hearing a
“pointless exercise.” The majority’s solution is to imagine a
hypothetical evidentiary hearing at which Edmonds would
testify, having been granted use immunity by the state, “that
he, rather than Smith, killed Mr. Konzelman.” Maj. op. at
16660. The majority then determines that Edmonds’s hypo-
thetical testimony that Smith was not the true killer would not
be credible and that, even if it were credible, it would not ben-
efit Smith because Smith would still have to prove that he
himself never held the crowbar nor had a reasonable ground
to believe that Edmonds had it. Relying almost entirely on
Edmonds’s prior self-serving and ambiguous statements made
when he was trying to shift the blame to Smith to avoid capi-
tal murder charges himself, the majority holds that Smith
could not meet his burden of proving Schlup actual innocence
because at least one reasonable juror would still find Smith
guilty of felony murder.
The principal fallacy in the majority’s approach is apparent
on its face. It disregards the historic and constitutionally guar-
anteed system under which American courts determine the
facts. A full and fair hearing at which Edmonds was permitted
to testify is the only way that Smith could have established
the factual elements required to make out his defense to fel-
ony murder, and thus his Schlup actual innocence claim. By
conducting an evidentiary hearing we could have determined
whether Edmonds’s initial story or his current affidavits were
true. In the absence of that hearing, it is impossible to deter-
mine what Edmonds might have said or what Smith might
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have established. Had a hearing been held, Smith’s lawyer,
who presumably understood the elements of the affirmative
defense that Smith was required to establish, could have
explored those elements fully in questioning Edmonds. Smith,
presumably, would have also testified at the hearing. His testi-
mony, like Edmonds’s, would likely have provided significant
details regarding the events that took place in the garage, the
timing of the two men’s entrance into the Konzelman home,
and the subsequent events inside the home, all of which could
have established definitively whether Smith had held the
crowbar or, if he had not, whether he had reason to believe
that Edmonds was armed with it. Both men would have been
subject to rigorous cross-examination. Perhaps their testimony
on direct would not have held up. Perhaps it would not have
been sufficient to allow Smith to meet the five-part test neces-
sary to establish an affirmative defense to felony murder
under Oregon law. At least a fair and full hearing would have
been held and a judge could have ruled on the two defen-
dants’ credibility and assessed the facts. We will never know
what the results of a Schlup hearing would have been, how-
ever, because the prosecution’s blatant misconduct rendered
such a hearing impossible.
The majority’s unprecedented attempt to construct a hypo-
thetical evidentiary hearing as a substitute for an actual
hearing—the one the prosecution prevented from being held
—fails to fill the gaping holes in the record created by the
state’s unconscionable interference. In the majority’s mythical
hearing, Edmonds states one thing only: that he, not Smith,
was the actual killer. In that construct, Edmonds does not pro-
vide details about the night in question. He does not say
whether Smith ever held the crowbar nor does he provide
facts that might indicate whether Smith had reason to believe
that Edmonds had the crowbar. In sum, the majority’s con-
struct assumes that Edmonds’s affidavits—which do not
address Smith’s affirmative defense but state only that Smith
was not the killer—comprise the full scope of what
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Edmonds’s testimony would have been had an evidentiary
hearing taken place.
Such an assumption is entirely unreasonable. The purpose
of Edmonds’s affidavits was not to establish all the elements
of Smith’s affirmative defense. Edmonds sought only to
inform the interested parties, including the state, that his state-
ments inculpating Smith seven years earlier, made in
exchange for lenient treatment, were false. The affidavits do
not purport to set forth any of the factual circumstances sur-
rounding the killing or to describe fully the events of the eve-
ning in question.6 Accordingly, it makes little sense to
assume, as the majority’s construct does, that, had an eviden-
tiary hearing been held, Edmonds would have merely
repeated the statements in his affidavits, and nothing more.
Rather, in the absence of specific knowledge as to what
Edmonds and Smith would have said had the state’s miscon-
duct not rendered an evidentiary hearing futile, an approach
far more consistent with our constitutional principles of due
process is for the court to presume that the evidence precluded
by the state’s misconduct would have materially benefitted
Smith with respect to his Schlup claim, and, accordingly, to
allow him to present his constitutional claims on the merits.
Such a presumption is hardly unusual in civil litigation.7
“Generally, a trier of fact may draw an adverse inference from
the destruction of evidence relevant to a case.” Akiona v.
United States, 938 F.2d 158, 161 (9th Cir. 1991); see also 2
Kenneth S. Broun et al., McCormick on Evidence § 265 (6th
ed. 2006). As we stated in Akiona,
6Indeed, the majority’s criticism of those affidavits for their incomplete-
ness, see maj. op. at 16671 (stating that “[n]either recantation addresses
th[e] issue” whether Smith and Edmonds entered the house at the same
time); id. at 16672 (noting that neither of Edmonds’s affidavits addresses
whether Smith could have seen the crowbar when he paused briefly at the
bedroom door), only underscores this point.
7A petition for habeas corpus, of course, initiates a civil proceeding.
Mayle v. Felix, 545 U.S. 644, 654 n.4 (2005).
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The adverse inference is based on two rationales,
one evidentiary and one not. The evidentiary ratio-
nale is nothing more than the common sense obser-
vation that a party who has notice that a document
is relevant to litigation and who proceeds to destroy
the document is more likely to have been threatened
by the document than is a party in the same position
who does not destroy the document. . . .
The other rationale for the inference has to do
with its prophylactic and punitive effects. Allowing
the trier of fact to draw the inference presumably
deters parties from destroying relevant evidence
before it can be introduced at trial.
Akiona, 938 F.2d at 161 (quoting Nation-Wide Check Corp.,
Inc. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218 (1st Cir.
1982)). Both rationales apply equally strongly to the state’s
willful intimidation of a critical witness with the result that he
refuses to testify at a habeas petitioner’s Schlup evidentiary
hearing and thus renders the hearing, in the words of the dis-
trict court, a “pointless exercise.” First, the state’s interference
with Edmonds’s willingness to testify raises the obvious infer-
ence that the state was “likely to have been threatened by,”
Akiona, 938 F.2d at 161 (quoting Nation-Wide, 692 F.2d at
218), Edmonds’s testimony—why else would the prosecution
have gone to such unconscionable lengths to prevent him
from testifying? Put differently, if, as the majority suggests,
Edmonds’s testimony would have been of no assistance to
Smith in a Schlup hearing because it would not establish
Smith’s innocence of felony murder, why was the state so
desperate to prevent his testimony? Why would it have
engaged in egregious prosecutorial misconduct by threatening
to have Edmonds executed if he testified? Thus the inference
is rational and fairly drawn. Equally important, if we presume
that Edmonds’s testimony would have been favorable to
Smith, our action would have a most beneficial effect. It
would deter the state from unlawfully interfering with the
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introduction of relevant evidence in future habeas and other
proceedings.
The deterrence rationale takes on added importance when
considered in light of the purposes of the Schlup doctrine. The
Schlup gateway is an outgrowth of the Supreme Court’s rec-
ognition that “the conviction of one innocent of the crime” for
which he was convicted represents a “fundamental miscar-
riage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991); see also Schlup, 513 U.S. at 314-15. Meeting the
Schlup standard does not by itself prove that such a miscar-
riage has taken place,8 but doing so raises a significant possi-
bility that the petitioner may not have been guilty of the
offense for which he was convicted. This possibility warrants
an exception to the procedural default rule to allow the federal
court to make absolutely certain that no miscarriage of justice
occurs. See Schlup, 513 U.S. at 316. When the state, through
an act of flagrant prosecutorial misconduct, precludes the
introduction of evidence that, had it been admitted, would
undermine the court’s confidence in the outcome of a criminal
proceeding, it substantially increases the possibility that a fun-
damental miscarriage of justice—the conviction of an inno-
cent individual—has occurred. Even more so if the state by
that egregious misconduct precludes the holding of the evi-
dentiary hearing itself. This is certainly behavior that federal
courts, charged with upholding constitutional protections,
should seek to deter. For this reason, it is especially appropri-
ate in the context of a habeas petitioner’s Schlup actual inno-
cence claim to apply the standard presumption that the
precluded evidence was unfavorable to the party that caused
its preclusion and, here, that the precluded evidentiary hearing
would have resulted in an outcome favorable to the other
party.
8This is in contrast to prevailing on a freestanding actual innocence
claim, which alone is grounds for granting habeas relief but imposes a
much more difficult—indeed, possibly insurmountable—burden on the
petitioner. See Herrera v. Collins, 506 U.S. 390 (1993).
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III.
I will not here engage in the extraordinary process of appel-
late factfinding that the majority does when it concludes that
a reasonable juror would more likely than not find that Smith
had failed to meet at least one element of his affirmative
defense. Such factual determinations are a matter for the dis-
trict court in the first instance. They are to be made after a
thorough review of facts adduced at a habeas petitioner’s evi-
dentiary hearing. In this case, however, such a hearing was
precluded by the state’s deliberate and egregious misconduct,
and the district court was unable to make any findings. As a
result, the majority does so on its own, relying almost entirely
on Edmonds’s past statements—which are in serious doubt in
light of his recantations—as well as on hypothetical testimony
at a hearing that never took place. Such creative prestidigita-
tion is no substitute for an actual evidentiary hearing. More-
over, the majority makes credibility findings as to Edmonds’s
hypothetical testimony at its hypothetical hearing. Needless to
say, such credibility findings are a question for the district
court and cannot be made on appellate review, especially in
the absence of any testimony on which to base those findings.9
9The majority strangely suggests that we are “being inconsistent,” maj.
op. at 16668-69 n.11, in criticizing its hypothetical credibility determina-
tions because an en banc decision that we joined, Carriger v. Stewart, 132
F.3d 463 (9th Cir. 1997) (en banc), concluded that a state court’s credibil-
ity determination was “not fairly supported by the record as a whole” and
therefore was “not entitled to a presumption of correctness,” id. at 475-76.
The majority’s comparison of its own approach to that of Carriger is, to
say the least, bizarre. In Carriger, the state court had found that a deceased
witness’s confession, which it had not itself witnessed, was not consistent
with the physical evidence and therefore not credible. Id. at 473. The en
banc court, reviewing the entire record, concluded that there was “virtually
no . . . support for the state court’s rejection of [the witness’s] confession”
and, consequently, declined to defer to the state court’s credibility finding,
pursuant to 28 U.S.C. § 2254(d)(8) (1994). Id. at 475; see also 28 U.S.C.
§ 2254(d)(8) (1994) (“[A] determination . . . of a factual issue, made by
a State court of competent jurisdiction . . . , shall be presumed to be cor-
rect, unless . . . the Federal court on a consideration of . . . the record as
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The majority’s analyses of elements (b) and (c) of the affirma-
tive defense—whether Smith killed Konzelman and whether
he was himself armed with the crowbar—as well as its analy-
sis of element (d)—whether Smith had reason to believe
Edmonds was armed—are based almost entirely on hypotheti-
cal, non-existent evidence. Because such determinations are
wholly invalid in the absence of an evidentiary hearing, I will
not discuss each of them individually here.
To the extent that the majority’s analysis of element (d)
relies on evidence other than Edmonds’s past statements,10
such evidence is trivial and fails to prove that Smith had rea-
son to believe that Edmonds was armed with the crowbar.
First, there is Mrs. Konzelman’s testimony. Contrary to the
majority’s assertion, there is little reason to believe on the
basis of her testimony that Smith saw the crowbar on the bed-
room floor when he paused briefly in the doorway. Mrs. Kon-
zelman stated that she herself did not see the crowbar until the
attacker picked it up from the ground just prior to assaulting
her husband. She also stated that the second burglar’s pause
a whole concludes that such factual determination is not fairly supported
by the record.”). The Carriger court’s appellate review, pursuant to stat-
ute, of a credibility determination made by the state court—that the state
court was in no better position to make—is a far cry from this majority’s
credibility assessment of hypothetical testimony that has never been given,
let alone passed upon by a lower court.
10The linchpin of the majority’s reasoning as to element (d) is
Edmonds’s prior statements indicating that he and Smith entered the Kon-
zelmans’ residence “at or around the same time.” Maj. op. at 16671. With-
out Edmonds’s statements, which were, in any event, vague and imprecise,
two of the majority’s primary factual bases—that the crowbar is three-feet
long (and therefore difficult to conceal) and that there was sufficient light
in the garage to see objects—would be wholly irrelevant. It would make
little difference that the crowbar was long or that the garage was suffi-
ciently lit if Smith and Edmonds did not enter the house together. If
Edmonds entered sometime after Smith (or perhaps even vice versa) he
could have easily removed the crowbar from the garage and carried it into
the house without Smith’s knowledge.
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at the doorway was brief—just long enough for her to see his
bandana—which is consistent with Edmonds’s affidavit stat-
ing that Smith “never entered the Konzleman’s [sic] bed-
room.” These facts strongly suggest that Smith did not have
the occasion during his brief pause at the doorway to search
the room visibly and observe the crowbar, which was on the
floor and out of plain sight.
Second, three of the majority’s primary pieces of evidence
prove nothing more than that Smith learned at some point,
either during, or more likely after, the attack, that Edmonds
was armed with the crowbar.11 It would be patently unreason-
11These pieces are: (1) the ultimate locations of the rope and crowbar,
(2) Smith’s guilty plea on the robbery charge, and (3) the majority’s the-
ory that Smith may have witnessed Edmonds committing the attack from
another room.
First, the majority asserts that “the ultimate placement of the [rope and
crowbar] permits the reasonable inference that Smith and Edmonds
crossed paths while Edmonds had the crowbar and Smith the rope[ ] . . . .”
Maj. op. at 16673. To the extent that the objects’ placement implies that
Smith and Edmonds “crossed paths,” however, it does not imply that they
did so prior to the beating. To the contrary, given that Smith never entered
the bedroom before the beating, the only reasonable inference that can be
drawn is that, if the two crossed paths at all, allowing Smith to see
Edmonds holding the crowbar, it was only after the attack had taken place.
Second, the fact that Smith pled to the robbery charge that alleged that
the defendants used a crowbar proves nothing more than that he had
learned at some time that Edmonds had a crowbar. This is hardly a surpris-
ing admission, given that Smith would certainly have learned of that fact
when he discovered that Konzelman had been murdered, if only from
being so informed by the police.
Finally, the majority’s conjecture that “it is entirely plausible that Smith
returned to the bedroom doorway when he heard the beating, or that he
moved to a vantage point in the hallway from which he was not visible
to Mrs. Kozelman [sic] but could still see the attack,” maj. op. at 16672,
if it may even be believed, proves only that Smith discovered that
Edmonds had the crowbar while the attack was taking place. It says noth-
ing about whether Smith had reason to believe prior to the attack that
Edmonds had picked up the crowbar—the only time frame that is relevant
to element (d) of the affirmative defense.
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able to find that Smith “[h]ad . . . reason to believe that
[Edmonds] was armed with a dangerous or deadly weapon”
for the purposes of Oregon Revised Statute § 163.115(3)(d) if
he discovered that Edmonds had possession of the crowbar
only while Edmonds was committing the attack or after it had
taken place. The purpose of an affirmative defense statute,
after all, is to ensure that only persons who were aware
beforehand that a death could occur during the felony, and
therefore might have acted to prevent it, may be held liable
for felony murder. These points are thus wholly irrelevant to
the question whether Smith had reasonable ground to believe
prior to the attack that Edmonds was armed.
The majority’s attempt to bolster its analysis through
Smith’s 1992 post-conviction deposition testimony is also
unavailing. Although Smith “consulted with his counsel”
about other defenses his trial counsel could have raised, we
have no idea whether Smith’s post-conviction counsel told
him that not having reason to know that Edmonds had a crow-
bar constituted such a defense, or whether Smith understood
him if he had. (We could, of course, have learned the answer
to these questions had the evidentiary hearing to which Smith
was entitled been held.) Thus, the fact that Smith never
explicitly stated during that deposition that he was unaware
Edmonds had the crowbar tells us nothing. Moreover, the
majority interprets Smith’s deposition statement that he
“didn’t know that [Edmonds] was going to [kill Konzelman]”
as meaning that Smith was “unaware Edmonds had the intent
to use the crowbar.” Maj. op. at 16675 (emphasis added).
Smith’s statement, however, could just as easily mean that
Smith was unaware that Edmonds had the crowbar. Indeed,
that may be the more reasonable interpretation of Smith’s
vague utterance—after all, Smith may have been unaware that
Edmonds was going to kill Konzelman precisely because he
never saw Edmonds holding the crowbar.
In sum, the majority’s evidentiary analysis depends almost
entirely on credibility determinations of Edmonds’s never-
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given testimony at a hearing that never occurred; the few
crumbs of evidence that do not fall in that category fail to sup-
port the majority’s conclusion, and, if they did, they would
hardly be sufficient.12
12Judge Fisher’s approach, while rightly rejecting the majority’s reli-
ance on Edmonds’s hypothetical testimony, see Fisher op. at 16684, ulti-
mately fails for the same reason the majority’s does. Judge Fisher notes
that Edmonds’s past statements concerning “Smith’s and Edmonds’
respective comings-and-goings into the Konzelmans’ house” were highly
inconsistent, Fisher op. at 16683, and concludes on that basis that a rea-
sonable juror would most likely find that Edmonds and Smith were
together at least sometime during the evening and that Smith would have
seen Edmonds carrying the crowbar at that point, Fisher op. at 16684. Like
the majority, Judge Fisher believes that an evidentiary hearing would have
made no difference because Smith could not have proven his actual inno-
cence regardless of what Edmonds might have said. But the fact that
Edmonds changed his story so many times when he was attempting to
shift the responsibility to Smith surely cannot defeat Smith’s Schlup claim.
That a defendant trying to pin the blame on someone else was unable to
keep his story straight does not provide reason to credit one of those sto-
ries over the others, as Judge Fisher suggests; if anything, it is reason to
discount all of Edmonds’s past stories as fabricated in an attempt to avoid
culpability himself. At the very least, Edmonds’s failed past inconsistent
statements are not a reason to deprive Smith of an evidentiary hearing.
Because the existing evidence in the record is so utterly unreliable, as
Judge Fisher himself recognizes, we cannot assume that what Edmonds
might say at an evidentiary hearing at which he finally accepts responsibil-
ity for the crime would have no bearing on whether Smith could prove his
affirmative defense.
Given that Judge Fisher also appears to recognize the egregious nature
of the prosecutorial misconduct, I am puzzled as to why he would simply
assume that fact for the purpose of the opinion rather than stating
expressly that he, like the dissenters, would hold that the prosecutor’s
behavior was grossly improper and unethical. Although I disagree with the
majority for all the reasons expressed in this dissent, I find its failure to
adopt such a holding and to condemn expressly the prosecutor’s conduct
particularly inexcusable. I would hope that its unwillingness to do so
would not encourage other prosecutors to believe that they may engage in
similar threats to seek the death penalty against witnesses who might tes-
tify to facts that are contrary to the prosecution’s theory of the case.
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IV.
Finally, I note briefly that, although the majority does not
advocate holding a hearing, because it believes that its hypo-
thetical construct dispenses with any need for doing so, it also
appears to suggest that granting Edmonds use immunity could
effectively remedy the prosecutorial misconduct. This is also
erroneous. As the panel opinion explained, granting Edmonds
use immunity
would not effectively counter the threat of execution,
as the state would be free to seek the death penalty
even if barred from relying on Edmonds’s testimony.
If Edmonds did decide to testify, there would be no
way to ensure that the looming prosecutorial threat
of execution would not significantly influence his
testimony. . . . Any testimony that contradicted his
affidavits would be of doubtful reliability.
Smith, 466 F.3d at 826-27. Because the state’s threat to have
Edmonds executed would taint any testimony that Edmonds
might give so long as the threat of execution loomed, we
could not now send the case back for an evidentiary hearing
at which Edmonds testifies under use immunity. On the other
hand, granting Edmonds “transactional immunity”—or total
immunity from prosecution on the subject matter of his
testimony—would allow Edmonds to testify more readily but
would provide too much of a reward for testimony that may
be untruthful, and such immunity might encourage Edmonds
to lie with impunity. Thus, allowing Smith to proceed to a
hearing on the merits of his constitutional claims provides the
least intrusive solution; such a remedy would effectively cure
the harm wrought by the prosecution’s unconstitutional threat
that it would seek to have a witness executed if he testified in
Smith’s favor, without providing too much or too little immu-
nity to that witness. This remedy would, of course, grant no
substantive relief to Smith, who would still be required to
establish on the merits his claims of constitutional violations.
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In any event, the majority affirms the denial of an evidentiary
hearing and does not remand for the grant of use immunity.
So, its discussion of that remedy is as worthless as its con-
struct of a non-existent hearing.
V.
In the end, it is difficult to believe that the Court took this
case en banc to decide the factual question whether the evi-
dence does or does not support an affirmative defense to fel-
ony murder under a particular provision of Oregon law.13 We
do not go en banc to sort out questions of fact or state law,
or to create mythical records for hearings that never were. See
Fed. R. App. P. 35(a) (“An en banc . . . rehearing is not
favored and ordinarily will not be ordered unless: (1) en banc
consideration is necessary to secure or maintain uniformity of
the court’s decisions; or (2) the proceeding involves a ques-
tion of exceptional importance.”). It is even more unfathom-
able that, by its fallacious evaluation of non-existent facts, the
majority reaches a result the correctness of which is impossi-
ble to evaluate, all in order to avoid considering the state’s
flagrant prosecutorial misconduct and the consequences that
should attach to it.
I regret that this court did not hold, as it should have, that
threatening a witness with execution if he testifies that a per-
son convicted of a crime is not guilty is in direct contraven-
tion of the Due Process Clause of the Constitution. We have
13Despite the majority’s insistence, this case is not about construing
Schlup. What a habeas petitioner must prove to establish actual innocence
under Schlup is not at issue in this case. Rather, as I explained earlier, the
unique problem we face is determining what a court should do when the
state, by threatening to execute a habeas petitioner’s key witness if he tes-
tifies at an evidentiary hearing, makes it impossible for the petitioner to
establish his Schlup claim. The majority evades that question, however,
and instead decides this case based entirely on an unprecedented process
of appellate factfinding and credibility assessing of hypothetical testimony
at a hearing-that-never-was.
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an obligation to label such egregious prosecutorial miscon-
duct for what it is—a gross deprivation of the petitioner’s
rights and a reprehensible abuse of the prosecutor’s authority.
Here, it is evident from the district court’s finding that the
effect of the state’s misconduct was to deny a habeas peti-
tioner the very evidentiary hearing necessary to establish his
affirmative defense. Yet, the majority decides against Smith’s
Schlup claim almost entirely on the basis of the earlier ambig-
uous testimony of the probable killer who at the time was
attempting to pin the murder on his partner in the robbery in
order to obtain a lighter sentence for himself, and who has
since recanted his story. Because, unlike the majority, I
believe we cannot countenance the state’s blatant violation of
constitutional processes, and because, in the absence of an
evidentiary hearing, I cannot deem the violation harmless on
the basis of a story the threatened witness has disavowed, I
respectfully dissent.
THOMAS, Circuit Judge, dissenting:
I concur in Judge Reinhardt’s dissent, but write separately
in order to amplify my views.
“It is well established that ‘substantial governmental inter-
ference with a defense witness’s free and unhampered choice
to testify amounts to a violation of due process.” United
States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998) (quot-
ing United States v. Little, 753 F.2d 1420, 1438 (9th Cir.
1984)); see also Webb v. Texas, 409 U.S. 95, 97-98 (1972)
(warning witness of likely perjury prosecution constituted
violation of due process).
I can conceive of no stronger governmental interference
with a witness’s free choice to testify than to threaten the wit-
ness with death at the hands of the state if the witness testifies
consistent with his sworn affidavit. One can only describe the
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government’s apparent reasoning as chilling. Either the gov-
ernment did not believe the witness’s affidavit—in which case
it was prepared to seek capital punishment despite its belief
that the man did not commit the murder—or the government
wanted to suppress truthful statements that might cause a man
who did not commit the murder to be freed or his sentence
reduced. If this type of threat had been made by the defense,
there is little doubt we would call it witness tampering, sanc-
tionable by an obstruction of justice charge.
I can understand the temptation to leap to the ultimate con-
clusion as to potential culpability for a crime. However, draw-
ing analytical constructs as to theoretical liability from a spare
appellate record is quite different from the truth that emerges
from the crucible of a courtroom hearing.
I would not brush aside the government’s prosecutorial
misconduct. Rather, I would hold that the petitioner’s due
process rights were violated by the threat made against the
witness and remand for a full Schlup evidentiary hearing.
Then, and only then, could we rest assured that there had been
a meaningful search for the truth of what happened that tragic
evening, and that the person most culpable in those events
was receiving the punishment warranted for the senseless
death of a helpless elderly man.
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