Ivan Teleguz v. Loretta Kelly
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 7:10-cv-00254-JPJ. Copies to all parties and the district court. [998907846]. [11-9]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-9
IVAN TELEGUZ,
Petitioner-Appellant,
v.
EDDIE L. PEARSON, Warden, Sussex I State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
James P. Jones, District
Judge. (7:10-cv-00254-JPJ)
Argued:
May 16, 2012
Decided:
August 2, 2012
Before MOTZ, DAVIS and WYNN, Circuit Judges.
Vacated in part and remanded by published opinion.
Judge Wynn
wrote the opinion in which Judge Motz and Judge Davis concurred.
ARGUED: Matthew Carey Stiegler, Philadelphia, Pennsylvania, for
Appellant.
Katherine Baldwin Burnett, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON
BRIEF: Elizabeth J. Peiffer, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
Kenneth T. Cuccinelli, II, Attorney General of Virginia,
Richmond, Virginia, for Appellee.
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WYNN, Circuit Judge:
Ivan
sentenced
Teleguz,
to
death
in
convicted
Virginia,
of
capital
appeals
murder
from
the
and
district
court’s dismissal of his 28 U.S.C. § 2254 petition for habeas
corpus relief.
We granted a certificate of appealability to
determine whether the district court abused its discretion in
denying Teleguz’s request for an evidentiary hearing to develop
his claim of actual innocence, which, under Schlup v. Delo, 513
U.S.
298
(1995),
would
allow
the
district
court
to
Teleguz’s procedurally defaulted constitutional claims.
that
the
conduct
district
a
sound
court
and
abused
thorough
its
discretion
analysis
of
in
address
We hold
failing
Teleguz’s
to
Schlup
gateway innocence claim as required by our decision in Wolfe v.
Johnson, 565 F.3d 140, 163 (4th Cir. 2009), and we remand for
further proceedings.
I.
On
February
9,
2006,
a
jury
convicted
Teleguz
of
capital murder for hire after his former girlfriend, Stephanie
Sipe, was found dead in the apartment she shared with Teleguz’s
infant son.
Although DNA evidence linked Michael Hetrick to the
murder, Hetrick testified at Teleguz’s trial that Teleguz had
hired
him
to
corroborated
commit
by
two
the
crime.
additional
2
Hetrick’s
witnesses:
allegations
Edwin
Gilkes
were
and
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Aleksey Safanov.
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Gilkes testified that he had been present at a
birthday party where Teleguz hired Hetrick to commit the murder.
Gilkes
also
apartment
testified
and
waited
that
he
outside
accompanied
for
Hetrick
Hetrick
during
to
the
Sipe’s
murder.
Gilkes further claimed that he was afraid of Teleguz because he
had heard rumors that Teleguz was a member of the Russian mafia,
as well as a specific account of a murder committed by Teleguz
in Ephrata, Pennsylvania.
According to Gilkes, Teleguz had shot
a Russian criminal in the street outside the Ephrata Recreation
Center.
Safanov testified that Teleguz attempted to hire him
to murder Sipe so that Teleguz would no longer be required to
pay
child
support.
Safanov
also
testified
that
Teleguz
had
spoken to him after the murder, complaining that “the black man”
he had hired to kill Sipe had left blood at the scene, and
offering Safanov money if he would “eliminate [the] killer.”
J.A. 325.
Although other evidence was presented at trial, the
Supreme Court of Virginia explained that, “in order to return a
guilty
verdict,
the
jury
had
to
believe
the
testimony
of
Teleguz v. Commonwealth, 643
Safanov, Gilkes, and Hetrick.”
S.E.2d 708, 728 (Va. 2007) (“Teleguz I”).
On February 14, 2006, the jury recommended a death
sentence after finding that two statutory aggravating factors
were
present:
vileness
and
future
3
dangerousness.
Following
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Teleguz’s appeal, the Supreme Court of Virginia affirmed his
conviction and sentence.
Teleguz I, 643 S.E.2d at 732.
He then
filed a petition for writ of habeas corpus in state court, which
Teleguz v. Warden of
the Supreme Court of Virginia dismissed.
Sussex I State Prison, 688 S.E.2d 865, 879 (Va. 2010).
On
November 12, 2010, Teleguz filed a petition for writ of habeas
corpus
in
District
the
of
United
States
Virginia,
District
asserting
Court
the
Western
grounds
for
relief.
various
for
Some of Teleguz’s claims had been adjudicated on the merits by
the
Supreme
Court
of
procedurally defaulted.
Virginia,
while
others
had
been
Teleguz argued that, pursuant to the
Supreme Court’s decision in Schlup, 513 U.S. 298, the district
court should consider the merits of his procedurally defaulted
claims because new and reliable evidence established that he was
actually innocent of Sipe’s murder (“Schlup gateway innocence
claim”).
In
Teleguz
support
offered
of
several
his
Schlup
categories
gateway
of
innocence
evidence.
claim,
First,
he
presented affidavits of third-party witnesses who claimed that
Teleguz did not attend the birthday party during which he was
alleged to have hired Hetrick to kill Sipe.
police
reports
and
affidavits
to
Second, he offered
establish
that
no
murder
occurred outside the Ephrata Recreation Center, that no murder
that
occurred
in
Ephrata
prior
4
to
Teleguz’s
trial
remains
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unsolved, and that the only murder involving a Russian victim
occurred
at
a
private
residence.
Third,
Teleguz
presented
affidavits in which Gilkes and Safanov recanted the testimony
they offered at Teleguz’s trial.
Gilkes now claims that he was
coerced into testifying against Teleguz by the prosecutor, who
“made clear that if [he] did not, [he] would have been the one
on death row today, not Teleguz.”
J.A. 1281.
affidavits
denying
in
both
2008
Hetrick to kill Sipe.
but
was
contacted
and
2010
Gilkes executed
that
Teleguz
hired
Safanov currently resides in Kazakhstan,
by
lawyers
from
Teleguz’s
defense
team.
According to their affidavits, Safanov now insists that he never
discussed
during
Sipe’s
Teleguz’s
murder
trial
with
only
Teleguz
because
and
he
agreed
believed
to
that
testify
if
he
cooperated with the prosecutor, he would be eligible for a visa
allowing
him
to
stay
in
the
United
States
despite
pending
federal gun charges.
On
August
1,
2011,
the
district
court
opinion and order denying Teleguz habeas relief.
issued
an
Teleguz v.
Kelly, 824 F. Supp. 2d 672, 723 (W.D. Va. 2011) (“Teleguz II”).
We granted a certificate of appealability to determine whether
the district court abused its discretion in denying Teleguz’s
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request for an evidentiary hearing pursuant to Schlup v. Delo,
513 U.S. 298. 1
II.
We review a district court’s denial of habeas relief
de novo and its decision not to grant an evidentiary hearing for
Wolfe, 565 F.3d at 160.
abuse of discretion.
When a court
bases its decision on an error of law, it necessarily abuses its
Id.
discretion.
A.
“In
disposing
of
a
§
2254
habeas
corpus
petition”
federal courts are “substantially constrain[ed]” in their review
of state court convictions by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”).
Id. at 159.
The AEDPA was
“designed to further the principles of comity, finality, and
federalism” by limiting federal habeas proceedings.
Bell,
593
F.3d
372,
379
omitted).
Accordingly,
petitioner’s
claims
on
the
(4th
if
Cir.
a
state
merits,
a
1
2010)
Sharpe v.
(quotation
court
federal
marks
adjudicates
court
may
a
only
We also granted a certificate of appealability on
Teleguz’s guilt phase ineffective assistance of counsel claim.
Because this claim may be more fully developed on remand, we
have not addressed that claim and will, accordingly, reserve
judgment.
6
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award habeas relief if the resulting state court decision “[i]s
contrary to or involved an unreasonable application of federal
law”
or
“[i]s
based
on
an
unreasonable
determination
facts in light of the evidence” that was before it.
2254(d).
of
the
28 U.S.C. §
“A state court’s decision is ‘contrary to’ clearly
established federal law only if it is ‘substantially different’
from
the
relevant
unreasonable
Supreme
application
of’
Court
precedent;
it
established
federal
clearly
is
‘an
law
Wolfe, 565 F.3d at
only if it is ‘objectively unreasonable.’”
159 (quoting Williams v. Taylor, 529 U.S. 362, 405, 409 (2000)).
Further, a federal court ordinarily may not consider
claims that a petitioner failed to raise at the time and in the
manner
required
demonstrates
asserted
under
cause
error.”
state
for
the
House
v.
law
default
Bell,
unless
and
547
“the
prejudice
U.S.
518,
prisoner
from
536
the
(2006).
However, in Schlup, 513 U.S. 298, the Supreme Court recognized
that
in
certain
exceptional
cases,
a
compelling
showing
of
actual innocence would enable a federal court to consider the
merits of a petitioner’s otherwise defaulted claims.
In these
cases,
about
new
evidence
“establish[es]
sufficient
doubt
[a
petitioner’s] guilt to justify the conclusion that his execution
would be a miscarriage of justice unless his conviction was the
product of a fair trial.”
Id. at 316 (emphasis in original).
7
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Courts
have
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consistently
emphasized
that
actual
innocence for the purposes of Schlup is a procedural mechanism
rather than a substantive claim.
See, e.g., Sibley v. Culliver,
377 F.3d 1196, 1207 n.9 (11th Cir. 2004) (distinguishing between
a
“substantive
claim
for
relief
upon
which
the
petition
for
habeas corpus is based” and a Schlup “gateway through which a
habeas
petitioner
must
heard on the merits). 2
pass”
to
have
his
substantive
claims
In other words, although a petitioner
claims actual innocence for the purposes of asserting a Schlup
claim, this innocence claim “does not by itself provide a basis
for relief.
Instead, his claim for relief relies critically on
the validity” of his procedurally defaulted claims.
Hardy,
628
F.3d
314,
318
(7th
Cir.
2010)
Coleman v.
(quotation
marks
gateway
actual
omitted).
When
innocence
a
claim,
petitioner
it
must
raises
be
2
a
Schlup
supported
by
“new
reliable
A petitioner may also raise a freestanding innocence claim
in a federal habeas petition, alleging that, irrespective of any
procedural errors, petitioner is innocent, and that “the
execution of an innocent person would violate the Eighth
Amendment.” Schlup, 513 U.S. at 314. The Supreme Court has not
articulated the standard under which these claims should be
evaluated, but has made clear that the “threshold for any
hypothetical freestanding innocence claim [is] ‘extraordinarily
high.’” House, 547 U.S. at 555 (quoting Herrera v. Collins, 506
U.S. 390, 417 (1993)).
A petitioner seeking to address
procedurally defaulted claims under Schlup must meet “a lessstringent—though
nevertheless
rigorous”
standard
than
a
petitioner who seeks relief on the basis of innocence alone.
Wolfe, 565 F.3d at 164.
8
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evidence.”
513
Schlup,
Pg: 9 of 18
U.S.
at
324.
However,
in
its
consideration of a petitioner’s Schlup gateway actual innocence
claim, the district court “must consider ‘all the evidence’ old
and
new,
whether
incriminating
it
would
and
exculpatory,
necessarily
be
without
regard
to
under
‘rules
of
admitted
admissibility that would govern at trial.’”
537
(quoting
(quotation
Schlup,
marks
513
U.S.
omitted).
at
In
House, 547 U.S. at
327-28)
light
of
(emphasis
this
added)
evidence,
the
district court must determine whether “it is more likely than
not that no reasonable juror would have found [the] petitioner
guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327.
the
“more
district
reasonable
court
juror
finds
would
that,
have
likely
reasonable
than
doubt”
If
not
any
to
the
as
petitioner’s guilt, then the petitioner has satisfied the Schlup
standard, and the district court must review the petitioner’s
procedurally defaulted claims.
House, 547 U.S. at 538.
B.
Here,
Teleguz’s
habeas
petition
asserted
a
Schlup
gateway innocence claim to allow the district court to consider
the merits of his procedurally defaulted claims.
Teleguz argues
that he met the Schlup standard with an extraordinary showing of
actual
innocence
because
“two
of
the
prosecution’s
three
critical witnesses hav[e] admitted that their trial testimony
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was false, [and] it is [therefore] . . . more likely than not
that any reasonable juror presented with all the evidence, old
and new, incriminating and exculpatory, would have a reasonable
doubt about Teleguz’s guilt.”
marks omitted).
Although we appreciate that the district court
“attentively
managed
reviewed
extensive
the
Appellant’s Br. 29 (quotation
complex
proceedings”
record”
that
was
and
before
“carefully
it
in
this
case, House, 547 U.S. at 540, we are unable to conclude, based
on the district court’s opinion, that Teleguz’s Schlup gateway
innocence
claim
was
properly
analyzed
and
resolved
by
the
district court.
The
district
court
correctly
set
out
standard in its explanation of the relevant law. 3
explained
in
Wolfe,
“a
sound
analysis
of
the
the
Schlup
However, as we
Schlup
is essential to properly resolve these § 2254 proceedings.”
F.3d at 163 (emphasis added).
in
addressing
Teleguz’s
issue
565
Notwithstanding this requirement,
procedurally
defaulted
claims,
the
district court simply stated that “Teleguz has not shown cause
and prejudice or a fundamental miscarriage of justice to excuse
3
There was one error in the district court’s explanation.
Compare Teleguz II, 824 F. Supp. 2d at 685 (“In assessing a
petitioner’s claim of actual innocence, the court may consider
all relevant evidence . . . .” (emphasis added)), with House,
547 U.S. at 538 (“Schlup makes plain that the habeas court must
consider ‘all the evidence.’” (emphasis added) (quotation marks
omitted)).
10
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the default.”
Pg: 11 of 18
Teleguz II, 824 F. Supp. 2d at 698; see also id.
at 695 (“Teleguz has failed to show cause for the default and .
. . has not shown a fundamental miscarriage of justice that
would
excuse
failed
to
the
show
default.”);
cause
and
id.
at
708,
prejudice
or
709
a
(“Teleguz
has
miscarriage
of
justice.”); id. at 696 (“[T]here is no fundamental miscarriage
of justice to excuse that default.”).
the
district
court
more
Nowhere in its order does
thoroughly
or
Teleguz’s Schlup gateway innocence claim. 4
directly
consider
Consequently, this
Court is left with the district court’s conclusory explanations,
which do not provide sufficient analysis to enable us to review
the reasons for, or scope of, the district court’s denial of
Teleguz’s Schlup gateway innocence claim.
Further, that the district court addressed the cause
and prejudice standard and the miscarriage of justice standard
in the same sentences indicates that the district court likely
based its analysis on a mistake of law, by applying its Schlup
analysis
to
individual
procedurally
defaulted
claims.
See,
e.g., Teleguz II, 824 F. Supp. 2d at 698 (“Teleguz has not shown
4
In evaluating Teleguz’s freestanding innocence claim, the
district court laid out the relevant evidence, and determined
whether it was sufficient to meet the “extraordinarily high”
Herrera standard.
See Teleguz II, 824 F. Supp. 2d at 713-16.
However, this analysis is insufficient to dispose of Teleguz’s
Schlup gateway innocence claim due to the difference in the
governing legal standards. See supra note 2.
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cause and prejudice or a fundamental miscarriage of justice to
excuse
the
standard
default.”).
and
While
Schlup’s
both
the
fundamental
cause
and
miscarriage
of
prejudice
justice
standard excuse a procedural default and allow a federal court
to review defaulted claims on the merits, a petitioner must meet
the
cause
claim.
1996)
and
prejudice
standard
with
respect
to
each
McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.
(“Claims
determining
are
whether
reviewed
they
individually
overcome
a
for
procedural
purposes
default;
of
each
claim must meet the cause and prejudice test.”).
By contrast, a petitioner’s satisfaction of the Schlup
standard
does
miscarriage
defaulted
of
not
require
justice
claim.
caused
Rather,
to
a
showing
or
that
underlies
satisfy
the
a
fundamental
each
procedurally
Schlup
standard,
a
petitioner must instead demonstrate that the totality of the
evidence would prevent any reasonable juror from finding him
guilty beyond a reasonable doubt, such that his incarceration is
a miscarriage of justice.
See Schlup, 513 U.S. at 327.
If a
petitioner passes through the Schlup gateway by satisfying this
standard, the district court then considers, and reaches the
merits
of,
all
of
the
petitioner’s
procedurally
defaulted
claims.
Other portions of the district court’s opinion also
support our determination that the district court erroneously
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applied its Schlup analysis individually to each procedurally
defaulted
claim
evidence.
See, e.g., Teleguz II, 824 F. Supp. 2d at 711-12
(examining
a
concluding,
excuse
“I
do
not
find
court
Teleguz
particular
]
of
the
the
claim
issue
Schlup
not
Schlup,”
on
would
and
the
The
inquiry
or
in
merits
enough
in
its
Schlup
under
the
and
to
Commonwealth
discussed
qualify
claiming
of
significant
engage
identified
claim
totality
default”).
need
“never
defaulted
standard[
this
procedural
the
to
defaulted
mischaracterizes
that
because
than
procedurally
Teleguz’s
similarly
arguing
rather
brief,
analysis
how
any
gateway
that
instead
the
Teleguz
“simply contended that he was innocent, that he had defaulted
claims,
and
that
he
Appellee’s Br. 25.
“federal
[a
habeas
Schlup
connected
a
was
entitled
to
relief.”
We reject the Commonwealth’s contention that
courts
gateway]
to
therefore
may
not
innocence
defaulted
Appellee’s Br. 21.
entertain
[claim]
claim
of
that
any
is
argument
not
constitutional
of
causally
error.”
We find no jurisprudential support for a
requirement
that
a
petitioner’s
evidence
procedurally
defaulted
causal
of
relationship
actual
claims.
innocence
In
exist
and
House,
a
for
between
a
petitioner’s
example,
a
petitioner convicted of capital murder claimed that DNA evidence
proved he had not committed the crime, and that his counsel’s
ineffectiveness had resulted in his conviction.
13
547 U.S. at
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533,
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540.
The
Supreme
Pg: 14 of 18
Court
examined
the
DNA
evidence
and
witness testimony that House offered in support of his actual
innocence of the crime, and held that he had met the Schlup
gateway
innocence
standard
without
counsel’s performance at trial.
satisfied
proceed
the
on
gateway
remand
discussion
of
his
See id. at 555 (“House has
standard
with
any
set
procedurally
forth
in
defaulted
Schlup
and
may
constitutional
claims.”). 5
Thus, a district court’s inquiry into a Schlup gateway
innocence claim requires an examination of all of the evidence
and a threshold determination about the petitioner’s claim of
innocence that is separate from its inquiry into the fairness of
his
trial.
“standard
See
is
innocence”).
Schlup,
intended
The
513
to
district
U.S.
focus
court
5
at
327
the
must
(noting
inquiry
make
that
on
a
the
actual
holistic
Further, the Commonwealth’s reliance on Calderon v.
Thompson, 523 U.S. 538 (1998), is misplaced.
In Calderon, a
petitioner offered new evidence that merely undermined the
credibility of the witnesses who testified against him by
showing that they were generally dishonest and had more prior
convictions than they had admitted to at trial.
The Supreme
Court characterized this evidence as “a step removed from
evidence pertaining to the crime itself.”
Id. at 563.
Critically, the petitioner in Calderon made “no appreciable
effort to assert his innocence of [the] murder.”
Id. at 560.
Here, by contrast, Teleguz has presented evidence of two of his
three accusers’ recantations, calling into question the only
direct evidence linking him to Sipe’s murder.
And this new
evidence is closely linked to Teleguz’s assertion of actual
innocence.
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determination of how a reasonable juror would perceive all of
the
evidence
in
the
record.
Only
if
the
district
court
determines that a reasonable juror would more than likely have a
reasonable
doubt
procedurally
does
defaulted
it
then
consider
claims.
Because
the
we
petitioner’s
are
unable
to
conclude that the district court engaged in the rigorous Schlup
analysis required by Wolfe, we vacate and remand on this issue.
III.
Because
Teleguz’s
Schlup
we
remand
gateway
for
innocence
further
claim,
the
analysis
district
of
court
will again be faced with the issue of whether to conduct an
evidentiary hearing to allow Teleguz to develop this innocence
claim.
We therefore turn next to this issue.
In its detailed opinion, the district court did not
explain its decision not to conduct an evidentiary hearing on
Teleguz’s
Schlup
gateway
innocence
claim.
On
remand,
the
district court should address whether Teleguz should be granted
an evidentiary hearing. 6
The district court should consider the
6
Our sister circuits considering whether the limitation on
evidentiary hearings in § 2254(e)(2) applies to Schlup claims
have overwhelmingly found that it does not.
See Cristin v.
Brennan, 281 F.3d 404, 417 (3d Cir. 2002) (holding that Congress
did not intend § 2254(e)(2) restrictions on evidentiary hearings
to apply to “hearings on excuses to procedural defaults”);
accord Sibley, 377 F.3d at 1207 n.9; McSwain v. Davis, 287 F.
(Continued)
15
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particular
actual
Filed: 08/02/2012
facts
raised
innocence
claim
hearing is warranted.
by
in
Pg: 16 of 18
the
petitioner
determining
in
support
whether
an
of
his
evidentiary
Compare Cristin v. Brennan, 281 F.3d 404,
417 (3d Cir. 2002) (affirming the district court’s decision to
hold an evidentiary hearing to determine if petitioner met the
threshold of actual innocence), with Thomas v. Taylor, 170 F.3d
466, 475 (4th Cir. 1999) (affirming the district court’s denial
of
evidentiary
hearing
on
actual
innocence
when
petitioner’s
requested discovery could not establish his actual innocence).
This
Court
has
counseled
that,
when
a
witness
providing the “only direct evidence implicating [a petitioner]
in
the
murder-for-hire
scheme”
recants
his
testimony,
this
recantation “strongly suggests that an evidentiary hearing may
be warranted.”
evidentiary
recantations
surrounding
Wolfe, 565 F.3d at 170.
hearing
are
the
may
credible,
be
necessary
or
recantation[s]
whether
suggest
We explained that an
to
assess
“‘the
[that
whether
circumstances
they
are]
the
App’x 450, 462 (6th Cir. 2008) (unpublished); Vineyard v.
Dretke, 125 F. App’x 551, 554 (5th Cir. 2005) (unpublished); see
also Schlup, 513 U.S. at 861 (explaining that a Schlup “claim of
actual innocence is not itself a constitutional claim but
instead a gateway” to the review of other constitutional
claims). Cf. Coleman, 628 F.3d at 319-20 n.2 (holding that not
§ 2254(e)(2)(A), but rather § 2254(e)(2)(B) applies); Williams
v. Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996) (distinguishing
an evidentiary hearing “to present new evidence to support
[petitioner’s] primary claim” and “an evidentiary hearing for
purposes of establishing cause and prejudice”).
16
Appeal: 11-9
Doc: 43
result
Filed: 08/02/2012
of
coercion,
Pg: 17 of 18
bribery
or
misdealing.’”
at
Id.
169
(quoting United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir.
1973)).
for
This
Schlup
record.
of
credibility
analysis,
Cf.
evidentiary
type
may
be
Coleman,
628
F.3d
hearing
to
determination,
more
at
“evaluate
difficult
320-21
the
required
on
a
(remanding
reliability”
cold
for
of
an
the
recantation of a codefendant whose “reputation for honesty is
weak”).
The district court should also consider the “heightened
need for fairness in the administration of death[,] . . . born
of the appreciation that death truly is different from all other
punishments a society inflicts upon its citizens.”
Callins v.
Collins, 510 U.S. 1141, 1149 (1994) (Blackmun, J., dissenting
from denial of certiorari).
The Commonwealth correctly notes in its brief that a
district
court’s
ability
to
make
factual
determinations
is
constrained by 28 U.S.C. § 2254(e)(1), which provides that any
“determination of a factual issue made by a State court shall be
presumed to be correct.”
factual
issue,
determination
the
petitioner
Thus, when a state court has made a
bearing
bears
on
the
the
resolution
burden
of
of
a
rebutting
presumption by “clear and convincing evidence.”
Schlup
this
Sharpe, 593
F.3d at 378.
Here, however, the Supreme Court of Virginia has not
assessed the credibility of Teleguz’s recantations.
17
It is well
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Filed: 08/02/2012
Pg: 18 of 18
established that the district court is permitted under Schlup to
“make some credibility assessments” when, as here, a state court
has
not
presented
evaluated
evidence
the
reliability
[that]
may
of
indeed
a
petitioner’s
call
into
question
credibility of the witnesses presented at trial.”
U.S.
at
330.
Accordingly,
the
district
“newly
the
Schlup, 513
court
may
make
determinations about “the probative force of relevant evidence
that was either excluded or unavailable at trial,” id. at 32728,
and
“assess
how
reasonable
jurors
would
react
to
the
overall, newly supplemented record,” House, 547 U.S. at 538, but
the district court may not reject the factual findings of a
state court absent clear error.
Sharpe, 593 F.3d at 379.
IV.
For
the
foregoing
reasons,
we
vacate
the
district
court’s decision in part and remand for further proceedings.
VACATED IN PART
AND REMANDED
18
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