White v. Hobbs

Filing 41

ORDER denying 39 Motion for Reconsideration and withdrawing the referral to Magistrate Judge Ray. The Court sees no need for an evidentiary hearing. Signed by Judge D. P. Marshall Jr. on 7/16/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LEWIS J. WHITE
ADC # 129569

v.

PETITIONER
No. 5:10-cv-357-DPM

RAY HOBBS, Director, Arkansas
Department of Correction

RESPONDENT

ORDER

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After further thought, the Court has decided that it will consider
White's motion to reconsider.

The referral to Magistrate Judge Ray is

therefore withdrawn. The Court sees no need for an evidentiary hearing. The
motion to reconsider, Document No. 39, is denied.
The motion stands on a statement dated 12 March 2012 from Tara Lee
White, Petitioner's daughter, recanting her trial testimony in September 2003
that Petitioner raped her. The statement is unsworn. Ms. White says she
wrote it freely, without being coerced or standing to gain anything. The
statement is witnessed.
Giving the statement all the evidentiary weight it will bear, White's
petition still fails. Because White was not convicted of a capital offense, the
governing precedent provides that he has no freestanding actual-innocence

claim at this point. Burton v. Dormire, 295 F.3d 839,848 (8th Cir. 2002); see also
Herrera v. Collins, 506 U.S. 390, 400 (1993). Instead, the issue is whether the

new statement makes a case for cause or equitable tolling. Under Schlup, the
dispositive question is whether, taking all of the evidence at trial and the new
statement into account, no reasonable juror could have found White guilty of
rape. Schlup v. Delo, 513 U.S. 298, 329 (1995); Cornell v. Nix, 119 F.3d 1329,
1334 (8th Cir. 1997).
White cannot make it up this high hill. He gave a tape-recorded
c0nfession that he raped his daughter with his fingers. She testified at trial
that he raped her in this way. Now, almost nine years later, she says her
mother made her lie about a rape that never happened to get back at White.
A reasonable juror could find White guilty beyond a reasonable doubt after
considering all this evidence; and that conclusion would have adequate
evidentiary support.
Motion to reconsider, Document No. 39, denied.

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So Ordered.

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D.P. Marshall Jr.
United States District Judge

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