Jerry White v. PERRY RUSSELL, Warden of Warm Springs Correctional Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY WHITE,
Petitioner-Appellant,
v.
PERRY RUSSELL, Warden of Warm
Springs Correctional Center; AARON
FORD, Attorney General for the State of
Nevada
Respondents-Appellees.
No. 20-16171
D.C. No.
3:04-cv-00412-GMN-CLB
MEMORANDUM*
Appeal from the United States District Court for Nevada, Reno
Gloria M. Navarro, District Judge, Presiding
Submitted June 18, 2021**
San Francisco, California
Before: BRESS and BUMATAY, Circuit Judges, and RAYES,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
FILED
AUG 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
Jerry White appeals from the denial of his successive petition for a writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254.
In 2000, White and Michael Woomer were accused of robbery and murder in
Nevada. In exchange for his cooperation against White, Woomer was offered and
accepted a plea. In a subsequent interview with law enforcement, Woomer directly
implicated White in the crimes. A Nevada jury later convicted White of first-degree
murder with use of a deadly weapon, robbery with the use of a deadly weapon, and
conspiracy to commit robbery with the use of a deadly weapon. With respect to the
first-degree murder conviction, the jury returned a general verdict after being
instructed on premeditated and felony murder theories. The Nevada Supreme Court
affirmed White’s convictions on direct appeal, and White’s subsequent state post-
conviction relief and federal habeas corpus petitions were denied.
In 2009, Woomer recanted his prior statements implicating White. Based on
Woomer’s recantation, White filed a second state post-conviction relief petition and
a successive federal habeas petition, each asserting a freestanding claim of actual
innocence. In 2015, the Nevada Supreme Court affirmed the denial of White’s
second petition, and in 2020 the district court denied White’s successive habeas
petition but granted a certificate of appealability. White timely appealed. We review
the district court’s denial of § 2254 relief de novo, Dows v. Wood, 211 F.3d 480, 484
(9th Cir. 2000), and affirm.

-- 2 of 4 --

3
Neither the Supreme Court nor the Ninth Circuit has conclusively determined
whether a freestanding claim of actual innocence is cognizable in federal habeas,
although each has assumed without deciding that such a claim is viable. See
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390,
417 (1993); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). Assuming
cognizability, the requisite showing on such a claim is “extraordinarily high” and
must be “truly persuasive.” Herrera, 506 U.S. at 417. At a minimum, “to be entitled
to relief, a habeas petitioner asserting a freestanding actual innocence claim must go
beyond demonstrating doubt about his guilt, and must affirmatively prove that he is
probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).
Unreliable or uncorroborated recantation testimony is insufficient to make that
showing. See Id. (rejecting freestanding claim of actual innocence based on
unreliable recantation testimony); Jones, 763 F.3d at 1248 (same).
Even assuming § 2254’s deferential standard of review does not apply, see
Jones, 763 F.3d at 1245, Woomer’s recantation is not sufficiently reliable to meet
this demanding standard. Woomer has variably claimed memory loss as to the
circumstances surrounding the crimes, casting doubt on the reliability of his
recantation testimony, which came a decade after the crimes were committed.
Moreover, Woomer’s recantation testimony changed over the years and is
inconsistent with other evidence. For example, Woomer provided inconsistent

-- 3 of 4 --

4
accounts of how White came to possess the robbery proceeds and who carried the
baseball bat from the victim’s house. Certain iterations of Woomer’s recantation
testimony also diverged in these respects from White’s initial account to police. In
one version of his recantation, Woomer claimed White carried the baseball bat from
the house and took the robbery proceeds from the center console of a car they had
been driving, but White told police Woomer carried the baseball bat from the house
and that he took the robbery proceeds from an entertainment center in a hotel room
the two men shared. Woomer’s recantation testimony that White had no
involvement in either the robbery or the murder is also undermined by the fact that
White possessed the robbery proceeds, and by testimony from an eyewitness who
said she saw a man matching Woomer’s description shout “wrap it up” from outside
the victim’s house, followed by a man matching White’s description exiting the
house while carrying a baseball bat. To the extent Woomer’s recantation casts any
doubt on White’s guilt, it falls short of affirmatively proving White is probably
innocent, especially when the jury was instructed on a felony murder theory.
AFFIRMED

-- 4 of 4 --