United States Court of Appeals,
Ninth Circuit.
Emanuel M. SISTRUNK, Petitioner-Appellant,
v.
Nicholas ARMENAKIS, Respondent-Appellee.
No. 99-36000.
Argued and Submitted Sept. 13, 2000
Filed Oct. 16, 2001
As Amended Nov. 30, 2001.
After his state court
conviction for raping a child was affirmed on direct appeal, and his state
postconviction petitions were ultimately denied, petitioner sought federal
habeas corpus relief. The United States District Court for the District of
Oregon, Ancer L. Haggerty, J., 1999 WL 717214, denied petition.
Petitioner appealed. The Court of Appeals, Kleinfeld, Circuit Judge, held that petitioner
had failed to present evidence of actual innocence sufficient to allow
consideration of his otherwise procedurally barred constitutional claims.
Affirmed.
Kozinski, Circuit Judge, dissented and filed opinion.
*1175 Dennis N. Balske, Assistant Federal
Public Defender, Portland, Oregon, for the appellant.
Denise G. Fjordbeck, Assistant Attorney
General, Salem, Oregon, for the appellee.
Appeal from the United
States District Court for the District of Oregon; Ancer L. Haggerty, District
Judge, Presiding. D.C. No. CV-96-06279-JMS.
*1176 Before: KOZINSKI and KLEINFELD, Circuit Judges, and SCHWARZER, [FN*] District Judge.
FN* The Honorable William W. Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
Opinion by Judge KLEINFELD;
Dissent by Judge KOZINSKI
KLEINFELD, Circuit Judge.
This case involves a
procedurally barred habeas petition.
The issue is whether the petitioner has presented evidence of actual
innocence sufficiently strong to avoid the procedural barriers to raising an
issue that would otherwise be procedurally
barred.
Facts
In 1986, Sistrunk was
convicted of forcibly raping a little girl.
His jury trial took place in an Oregon state court, and he was sentenced
to thirty years of imprisonment with a fifteen year minimum. He appealed to the Oregon Court of Appeals
and petitioned for review to the Oregon Supreme Court without success. [FN1] He then petitioned for post-conviction
relief in state court. Both that
petition and his appeal to the Oregon Court of Appeals were denied, [FN2] but he did not seek
review by the Oregon Supreme Court of his failed petition. He then filed a second state
post-conviction relief proceeding with unfavorable results, lost on his appeal
to the Oregon Court of Appeals, and unsuccessfully petitioned for review to the
Oregon Supreme Court. [FN3] Finally, he filed this federal petition for
a writ of habeas corpus, claiming ineffective assistance of counsel,
insufficiency of evidence, and prosecutorial misconduct. He conceded procedural default in the
district court, but argued that the default should be excused because he is
actually innocent, and failure to consider his claims would result in a fundamental
miscarriage of justice. This district
court carefully considered his evidence, and concluded that it was not so
strong as to get petitioner through the "Schlup gateway," as is necessary for the
court to consider his claims. We agree
and affirm the district court's denial of the petition.
FN1. State v. Sistrunk, 85 Or.App. 558, 737 P.2d 978 (1987); rev. denied, 303 Or. 590, 739 P.2d 570 (1987).
FN2. Sistrunk v. Wright, 99 Or.App. 488, 782 P.2d 958 (1989).
FN3. Sistrunk v. Zenon, 140 Or.App. 644, 917 P.2d 77 (1996), rev. denied, 323 Or. 483, 918 P.2d 847 (1996).
The eleven year old victim
knew the petitioner, enough so that when she saw him the day of the rape,
shortly after getting out of school, she ran away from him. He had assaulted her once before, and she
testified that she was scared of him, because of the assault, and because he
had threatened to kill her family if she told. She ran back to her school, but it was locked, and he caught
her. He grabbed her by the arm and
walked her over a freeway and into an open garage. He laid his coat on a large, square pan on the floor, pulled
down his pants and hers, and forced her on top of him, penetrating her
painfully, and ejaculated. Then he
slapped her in the face with a five dollar bill, took her back to school, and
warned her that he would kill her and her family if she told. She got an after-school activity bus that
took her home. She bought flowers with the five dollars and took them home to
her mother. Her mother realized that
something was not right, got the girl to tell her what was wrong, and called
the police and took the girl to the hospital.
The girl had a fresh abrasion in her vaginal area. Subsequently, she began to have a burning
sensation when she urinated and some discharge.
Sistrunk claims
ineffective assistance of counsel because his trial attorney did not *1177
object to impermissible expert witness testimony, and his appellate attorney did
not raise issues of failure to give a lesser included offense instruction on
first degree sex abuse. He also claims
that the trial court erred in denying a defense motion to photograph Sistrunk's
penis and show that photograph to the jury.
Sistrunk argues that his newly presented evidence demonstrates that the
state's expert witness was biased in favor of the prosecution and improperly
vouched for the victim's testimony by testifying falsely that scientific
evidence proved that young children never lie about sexual molestation. Moreover, he argues that his penis did not
have the distinctive appearance described by the victim and that introduction
of the photograph would impeach her testimony.
The state's main expert
witness, Dr. Jan Bays, testified falsely.
She testified that a scientific study proved that "it is very, very
rare that a child lies about sex abuse" and that the chance of such a lie
is only with teenagers, "never with the younger children." She testified that the study established
that "if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the
truth."
The "scientific
study" to which Dr. Bays referred had not been published at the time of
trial. Because the study was not
published at the time of trial and because it contradicts Dr. Bays's testimony,
petitioner claims that it is newly available evidence. The article in question is in the Journal
of Interpersonal Violence, [FN4] and does not say what Dr. Bays testified that it said,
nor is it a scientific study establishing anything at all. The article describes reports of suspected
child abuse to the Denver Department of Social Services in 1983, and says that
eight fictitious reports were made by children, but as for the accuracy of the
rest, says that "[w]e do not have an absolutely reliable test" [FN5] and "the
definition of fictitious used in this study was that [social work]
professionals did not consider that the abuse had occurred. This is subject to error." [FN6] The fictitious cases cited in the report
established the falsehood of Dr. Bays's testimony that "children never
lie." The study expressly said
that "children of all ages made false allegations," [FN7] and the report itself
"suggest[s] that the results be used as a basis for further study and not
as a definitive basis for proving that a case is or is not 'true.' " [FN8] There is no evidence in the record
suggesting that the prosecutor knew that Dr. Bays was testifying falsely.
FN4. David P.H. Jones and
J. Melbourne McGraw, Reliable and Fictitious Accounts of Sexual Abuse in
Children, 2 Journal of Interpersonal Violence 1 (March 1987).
FN5. Id. at 31.
FN6. Id. at 38.
FN7. Id. at 39.
FN8. Jones and McGraw, 2 Journal of Interpersonal Violence at 39.
After the trial, Dr. Bays
also co-authored an article in a law review, suggesting that "clinical
experience and systematic studies confirm that deliberately false allegations
of sexual abuse are infrequent." [FN9] Sistrunk says that this amounts to newly discovered
evidence that Dr. Bays was biased.
FN9. Meyers, Bays, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Nebraska Law Review 1, 115 (1989).
The issue of whether a photograph of Sistrunk's penis should have
been taken and submitted to the jury arises from a condition he has called
neurofibromatosis. It causes pigmented
spots and bumps on various areas of the patient's skin. [FN10] The *1178 victim said that Sistrunk's
penis "had bumps on it."
This may have been inaccurate, because although Sistrunk had
neurofibromas on his chest, he apparently had none on his penis, or it may have
been an accurate description of how the girl perceived the anatomy of a penis,
i.e., "bumpy," having not been previously familiar with the organ.
Sistrunk's attorney wanted to have a photograph taken of the penis at the jail,
in an erect state, with Sistrunk lying on his back in the position the girl
described him, to show the jury that it had no bumps, but the judge would not
permit it. However, the judge did allow
Sistrunk's girlfriend to testify that he had no bumps on his penis. The claimed newly discovered evidence is a
subsequent medical examination reporting that no neurofibromas were found on
Sistrunk's genitals.
FN10. Harrison's Principles of Internal Medicine
2006-7 (Kurt J. Isselbacher et al. eds., 9th ed. 1980).
The district court denied
the petition, on the grounds that Sistrunk procedurally defaulted on his claims
and has not made a showing of actual innocence
sufficient to raise them despite the procedural default. The magistrate judge, despite recommending
denial of the petition, expressed her concern about the case, particularly
because of Dr. Bays's false testimony vouching for the victim's credibility.
The case did not turn
entirely on the victim's testimony.
There was corroboration. A
medical examination found abrasion of her vaginal area. Her subsequent
discharge and pain on urination were consistent with rape. The girl's description of the garage where
Sistrunk took her and raped her was consistent with the garage of a person in
the location. The garage door did not
lock, and the homeowner often left it open.
There was a dry, square, oil pan with leaves on the floor, in the place
where the girl had described a large pan onto which Sistrunk tossed his coat. The garage had a coiled utility cord hanging
where the girl described a "rope" on the wall. The unusual event of an eleven year old
girl going to a flower shop and buying her mother five dollars worth of flowers
on no special occasion makes the flowers chilling corroboration of the girl's
testimony that Sistrunk slapped her in the face with a five dollar bill he left
her after raping her.
Analysis
[1]
We review denial of the writ de novo and may affirm on any ground supported by
the record.
[FN11] This petition was filed
after the amendment of the habeas statute by the enactment of the Antiterrorism
and Effective Death Penalty Act (AEDPA). [FN12]
FN11. See Bonin v. Calderon, 77 F.3d 1155, 1157 (9th Cir.1996).
FN12. 28 U.S.C. §
2254 (1994 ed., Supp. V); see
also Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir.1999).
[2][3][4] Petitioner
concedes that his claim would be procedurally barred but for the "Schlup gateway." The Supreme Court held in Schlup v. Delo [FN13] that if a petitioner otherwise
procedurally barred "presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error, the
petitioner should be allowed to pass through the gateway and argue the merits
of his underlying claims." [FN14] The standard for actual innocence for
purposes of the "Schlup gateway" is lower than the Herrera v. Collins [FN15] standard applicable where the
petitioner had a fair trial but is nevertheless actually innocent. To get through the *1179 Schlup gateway so that he can argue his
otherwise procedurally barred constitutional claims, the petitioner must show
that "it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence." [FN16] Under this standard, "the newly presented
evidence may indeed call into question the
credibility of the witnesses presented at trial." [FN17] We held in Carriger v. Stewart [FN18] that where the post-conviction evidence
"casts a vast shadow of doubt over the reliability" of the conviction
but only by undercutting the reliability of the proof of guilt, not by
affirmatively proving innocence, that can be enough to get through the Schlup gateway and allow consideration of
otherwise barred constitutional claims, [FN19] despite being insufficient for a
"freestanding" Herrera claim of innocence
for a trial free of prejudicial constitutional error. [FN20] The AEDPA now provides that a claim that is
procedurally barred because the petitioner "failed to develop the factual
basis of [the] claim in state court proceedings" must be dismissed unless
"the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable fact
finder would have found the applicant guilty of the underlying offense." [FN21]
FN13. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
FN14. Id. at 316, 115 S.Ct. 851.
FN15. 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
FN16. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
FN17. Id. at 330, 115 S.Ct. 851.
FN18. 132 F.3d 463 (9th Cir.1997).
FN20. See Herrera, 506 U.S. at 417, 113 S.Ct. 853.
[5]
The briefs do not discuss whether the elaborate Schlup analysis applies to cases where the
death penalty is not at stake, or whether the AEDPA standard supplants the Schlup standard. Both sides argue on the assumption that the Schlup standard applies. Because we ultimately decide that the
requirements for the Schlup gateway are not met, we assume without
deciding that Schlup applies, [FN22] and analyze the facts
of this case in terms of the Schlup gateway. We would reach the same result under the AEDPA language.
FN22. The cases do not make
the issue of application in cases that do not consider the death penalty
clear. In Schlup, 513 U.S. at 301, 115 S.Ct. 851, the Court
specifically limited its grant of certiorari to "consider whether the
Sawyer standard provides adequate protection against the kind of miscarriage of
justice that would result from the execution of a person who is actually
innocent" (emphasis added). This
language may imply that the Court intended to limit its holding to death
penalty cases. In Paradis v. Arave, 130 F.3d 385 (9th Cir.1997), we applied Schlup to a case in which the petitioner's
death sentence had already been commuted to a life sentence, but we did not
consider the possible issue of whether Schlup applied once the death penalty was
removed from consideration.
Sistrunk's first argument
is that the district court erred by requiring that "new evidence" for
purposes of the Schlup gateway be newly available rather than
newly presented. We need not decide
whether he is correct, [FN23] because, as we
explain below, he is not entitled to relief even with consideration of the new
evidence.
FN23. The Schlup opinion speaks of "newly
presented evidence." 513 U.S. at 330, 115 S.Ct. 851. However, at least one other court has found that newly presented evidence that was
available to the petitioner at trial should not be considered
"new." Bannister v. Delo, 100 F.3d 610, 618 (8th Cir.1996).
We also need not decide on
the strength of Sistrunk's legal claims, including his claim that the jury
should have been instructed on a lesser included offense. The issue in this case is whether
Sistrunk's evidence of actual innocence is strong enough to get him through the
Schlup gateway so that his claims can be
considered, *1180 which is a question independent of the legal force of
his arguments about the claimed errors.
We assume without deciding for purposes of analysis that Sistrunk could
show that nonharmless constitutional error tainted the trial, with respect to
the expert's vouching and falsification, and with respect to the denial of the
opportunity to show the jury a photograph demonstrating that his penis was not
as the victim described it.
[6]
Sistrunk's evidence does not purport to show that he did not rape the little
girl, just that Dr. Bays should not have been allowed to vouch for the girl's
testimony, and that the girl should have been impeached by a photograph that
would have shown that his penis was not bumpy, as the girl had testified. Thus
the evidence that Sistrunk seeks to introduce as proof of his innocence is
merely impeachment evidence. Where the
new evidence "casts a vast shadow of doubt
over the reliability" [FN24] of the conviction such that "it
is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt," [FN25] it gets a petitioner through the Schlup gateway even if it merely impeaches
credibility of prosecution evidence rather than affirmatively establishing
actual innocence. [FN26]
We therefore consider whether the subsequently published journal
articles showing that Dr. Bays testified falsely and was biased in favor of the
prosecution, and the medical evidence that Sistrunk's penis had no
neurofibromas on it, make it "more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt." [FN27]
FN24. Carriger, 132 F.3d at 477.
FN25. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
FN26. Carriger, 132 F.3d at 481.
FN27. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
In this case there is not
"a reasonable probability that the outcome of [petitioner's] trial would have been different" had the jury
been furnished with the material undermining
the expert's credibility and showing what Sistrunk's penis looked like. [FN28] The facts do not "establish by clear
and convincing evidence that but for [presumed] constitutional error, no
reasonable fact finder would have found the applicant guilty of the underlying
offense."
[FN29]
FN28. Carriger, 132 F.3d at 482.
FN29. 28 U.S.C. §
2254(e)(2)(B).
The victim's account, not
the expert's testimony, was most central to establishing guilt. The victim's account was plausible,
internally consistent, and well corroborated.
Her accurate description of the garage, the unlikely expenditure of $5
by an eleven year old for flowers for her mother when no occasion called for
flowers, her prompt disclosure of the rape, the abrasion found at the hospital
on the victim's vaginal area, and petitioner's implausible responses all
contributed to the credibility of her account.
Likewise, evidence that
Sistrunk's penis was free of neurofibromas does not necessarily impeach the
victim's credibility regarding the rape, despite her description of Sistrunk as
having a "bumpy" penis.
First, "bumpy" does not necessarily refer to neurofibromas
but, rather, could reflect an initial reaction
to the appearance of male genitalia.
Second, an honest and reasonably observant little girl, being raped by a
man with neurofibromas conspicuously spotting his body might not notice that
they are absent from his penis.
It is one thing to hold,
as we did in Carriger, that new evidence
that undermines the credibility of the prosecution's case may alone
suffice to get an otherwise barred petitioner through the Schlup gateway. It would be quite another to hold, as *1181 we did not in
Carriger, that such evidence necessarily
must get a petitioner through the Schlup gateway. Whether it does or does not
depends on whether the evidence is such that it is "more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt."
[FN30] In this case, it does
not. Unlike the new evidence in Carriger, which tended to show
that the critical witness against Carriger had himself committed the murder and
was an utterly unreliable witness, the new evidence of Dr. Bays's false
testimony and bias, and of the non-bumpy condition of Sistrunk's penis, does
not cast the "vast shadow of doubt over the reliability of his
conviction." [FN31]
Nor does the new evidence show that "the facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable fact finder would have found the applicant
guilty of the underlying offense." [FN32]
Dr. Bays's testimony was disgraceful, but it was icing on the cake, not critical to the
persuasive force of the remaining evidence.
Similarly, a photograph of Sistrunk's penis would not have had much
persuasive force with respect to whether the girl was testifying falsely about
the rape.
FN30. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
FN31. Carriger, 132 F.3d at 477.
FN32. 28 U.S.C. §
2254(e)(2)(B).
Sistrunk argues that he
should pass through the Schlup gateway under our decision in Mach v. Stewart. [FN33]
The case is not in point, because it involves a permissible, not a
procedurally barred, habeas claim, so we had no occasion to consider the Schlup gateway. Also, the question in Mach was whether a jury was tainted because
the judge's questioning of the first venireperson, a social worker who
emphatically insisted that children never lie about sexual assault against
them, which is a different question from whether the impeachment of a witness
saying that so undermines the reliability of the trial result as to get
Sistrunk through the Schlup gateway. The case at bar is more like Wood v. Hall. [FN34] Wood holds that a medical report improperly hidden from the defense, though it
"could have supported reasonable doubt," did not so undermine
reliability of the trial result as to get the petitioner through the Schlup gateway. As in Wood, the petitioner has presented
insufficient evidence of actual innocence to allow consideration of his procedurally
barred claims.
FN33. 137 F.3d 630 (9th Cir.1997).
FN34. Wood v. Hall, 130 F.3d 373, 379 (9th Cir.1997) (denying the petition
in a case where there was an undisclosed medical report, but the government
stipulated that the victim's hymen was intact, where there was other evidence
that the rape occurred, and the statute and instructions allowed conviction for
"any penetration, however slight").
Sistrunk has failed to
demonstrate that he can pass through the
Schlup gateway to allow consideration of his
procedurally barred claims.
AFFIRMED.
KOZINSKI, Circuit Judge, dissenting:
Emanuel Sistrunk has
served almost fifteen years for a crime he probably did not commit.
Sistrunk was convicted of raping Jane Roe, [FN*] an eleven- year-old
girl. Roe testified that the crime
occurred in a garage owned by a third party unconnected to either Sistrunk or
herself. No one else saw Sistrunk with
the victim, or anywhere near the garage on the day of the crime. The prosecution
presented no semen, blood, hair, DNA or fibers connecting Sistrunk to the
crime. A trench coat allegedly worn by
the perpetrator, and used by *1182 him during the crime, was never
recovered. The prosecution's entire
case hinged on Roe's testimony and her identification of Sistrunk as the
rapist.
FN* Not her real name.
The testimony of a
victim--particularly a very young one--is a highly tenuous ground on which to rest
a conviction. A jury might develop a
reasonable doubt from the total absence of corroborating evidence. If the jury nevertheless convicts, we are
bound by that determination. However,
when the state's case is so heavily dependent on a single witness, errors
affecting the witness's credibility take on enormous significance. Here, there is strong reason to believe
that the jury's decision to believe Roe beyond a reasonable doubt was heavily
influenced by the false testimony of a prosecution expert. Moreover, the
trial court improperly denied defendant the opportunity to present evidence
that would have undermined the victim's credibility. I don't share the majority's confidence that the jury would have
convicted anyway; no reasonable jury
would have convicted defendant but for these serious errors.
The expert witness issue
is clear-cut and dispositive.
Admission of the expert's testimony was highly questionable to begin
with. The expert had nothing to say
about the crime, nor about any connection Sistrunk might have had to it. Her only function was to lend credence to
Roe's testimony. To that end, Dr. Jan
Bays [FN**] testified about a
supposedly scientific study she had conducted which--she claimed--showed that
"it is very, very rare that a child lies about sex abuse" and
"never with the younger children." Supplanting the jury's
fact-finding responsibilities by anointing the prosecution's star witness with
the aura of scientific infallibility is highly suspect. See State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1219 (1983). However, Sistrunk was aware of this issue
at the time of trial, and it therefore can't form the basis for passage through
the Schlup gateway. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995).
FN** Her real name.
What is new is the discovery that the expert lied. As the majority bluntly puts it, the
"study" in question "does not say what Dr. Bays testified that
it said, nor is it a scientific study establishing anything at all." Maj.
Op. at 1177. In other words, the expert
fabricated the supposedly scientific proof on which she relied in persuading
the jury that the prosecution's witness was being truthful. We have here not merely improper vouching,
not merely supplanting of the jury by an expert, but doing so by means of
perjury. Because the prosecution's case
against Sistrunk depended on having the jury believe that the complaining
witness was both accurate and truthful, I cannot agree that Dr. Bays's
testimony was merely "icing on the cake." Id. at 1181.
Jurors seldom have experience with sexually abused children. If an expert testifies, based on an
allegedly scientific study, that such children never lie, jurors would be hard
put to reach the opposite conclusion.
The problem of the
expert's false vouching was compounded when the trial judge improperly
prevented petitioner from gathering and introducing evidence that would have
undermined the complaining witness's credibility. Roe testified that her assailant had a bumpy penis. As the jury could easily observe,
petitioner suffers from neurofibromatosis, which creates bumps or lumps in his
skin. The most plausible
interpretation of Roe's statement is that she saw her assailant's penis, and that it had the
types of bumps the jury could plainly see on visible portions of defendant's
body. The clear inference the jury
could draw is that petitioner was the *1183 assailant because he must
have a bumpy penis.
Petitioner sought to introduce a photograph of his erect penis showing that it has no bumps. This would have been strong graphic evidence that the complaining witness was confused or untruthful. The trial court refused to allow defense counsel to take such a photograph, describing the necessary arrangements as "cumbersome" and the evidence as "misleading and confusing