Nash v. Russell

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Motion for Leave to File Amended Petition for Writ of Habeas Corpus [ECF No. 17] be denied. Signed by Magistrate Judge Terry I. Adelman on 3/27/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD R. NASH,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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No. 4:12CV1783 TIA

MEMORANDUM AND ORDER
This cause is before the Court on Missouri state prisoner Donald Nash’s Motion for Leave
to File Amended Petition for Writ of Habeas Corpus (Docket No. 17). The parties consented to the
jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
Petitioner seeks leave to amend his petition to add a count based on newly discovered DNA
evidence from testing the shoe from which the shoelace had been removed. Petitioner contends that
inasmuch as the testing found male DNA on the shoe, and the profile of that DNA does not match
his DNA profile, this evidence shows that he is actually innocent of the crime for which he was
convicted. The State opposes the amendment arguing that this new claim is a free-standing claim of
actual innocence and such claims are not cognizable under 28 U.S.C. § 2254. Likewise, the State
contends that Petitioner cannot amend his petition even if this is a gateway innocence claim.
The United States Supreme Court has not recognized free-standing claims of “actual
innocence” as constitutional grounds for review in a federal habeas proceeding. McQuiggin v.
Perkins, 133 S.Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence”); Herrera v. Collins, 506 U.S. 390,
400-02, 404-05 (1993) (noting that “[c]laims of actual innocence based on newly discovered evidence

have never been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding”; stating that the “body of [the
Supreme Court’s] habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a
constitutional claim”; and concluding that the petitioner was not entitled to relief because he claimed
he was “entitled to habeas relief because newly discovered evidence show[ed] that his conviction
[wa]s factually incorrect”); accord Burton v. Dormire, 295 F.3d 839, 848 (8th Cir. 2002) (“we have
squarely rejected the notion that a prisoner may receive a writ simply because he claims he is
innocent.... [T]hus [the petitioner]’s claim of innocence does not entitle him to a writ”); cf. Schlup
v. Delo, 513 U.S. 298, 315 (1995) (distinguishing Herrera upon concluding that the petitioner’s claim
was not itself a constitutional claim of innocence barred by Herrera, but a gateway claim of actual
innocence to obtain consideration of the merits of an otherwise barred claim). A free-standing claim
of innocence, the Eighth Circuit has expressly concluded, is not cognizable in a federal habeas
proceeding. Meadows v. Delo, 99 F.3d 280, 283 (8th Cir. 1996); Washington v. United States, 2014
WL 942940 at *8, n.4, Cause Number 4:11cv183CDP (E.D. Mo. Mar. 11, 2014) (“To the extent
Ground 1 is an attempt to assert a freestanding claim of actual innocence, it fails as actual innocence
is merely a gateway to review otherwise procedurally defaulted claims and is not an independent
ground for relief.”). Petitioner’s proposed claim is a free-standing actual innocence claim that is not
cognizable in this habeas proceeding.
Likewise, Petitioner's actual innocence claim, taken as a Schlup gateway claim, would not be
successful. An actual innocence claim may serve as a “gateway” to “resurrect[] procedurally
defaulted claims of constitutional error which occurred in the underlying trial,” Kidd v. Norman, 651
F.3d 947, 951-52 (8th Cir. 2011), if the petitioner “presents evidence of innocence so strong that a
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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.” Schlup, 513 U.S. at 316. Ultimately, such gateway
claims must be based on evidence that was “not available at trial and [that] could not have been
discovered earlier through the exercise of due diligence.” Id. (emphasis added). In the proposed
ground, Petitioner does not assert his actual innocence so as to permit this Court to review on its
merits an otherwise barred constitutional claim. “[A] claim of ‘actual innocence’ is ... a gateway
through which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.” Mansfield v. Dormire, 202 F.3d 1018, 1024 (8th Cir. 2000). Inasmuch
as Petitioner does not have a constitutional claim that is procedurally barred, the proposed
amendment would be futile. Instead, Petitioner argues only that he is entitled to habeas relief because
the newly discovered DNA evidence shows his conviction to be factually incorrect. Because such
argument does not provide a basis for federal habeas review, the claim is not cognizable in this federal
habeas proceeding. Herrera, 506 U.S. at 404; see also Burton, 295 F.3d at 848; Meadows, 99 F.3d
at 283.
Although the undersigned finds his hands tied in denying Petitioner’s motion to amend and
cannot offer him any relief, the Court hopes that the State of Missouri may provide a forum, either
judicial or executive, in which to consider the evidence that Petitioner may be actually innocent of the
crime for which he was convicted. “A layperson would have little trouble concluding [Petitioner]
should be permitted to present his evidence of innocence in some forum. Unfortunately, [Petitioner’s]
claims and evidence run headlong into the thicket of impediments erected by courts and by
Congress.” Burton v. Dormire, 295 F.3d 839, 842 (8th Cir. 2002). Petitioner may well be

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guilty, but the newly discovered DNA evidence suggests his case, at the very least, deserves further
serious consideration.
Accordingly,
IT IS HEREBY ORDERED that the Motion for Leave to File Amended Petition for Writ
of Habeas Corpus [ECF No. 17] be denied.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this

27th day of March, 2014.

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