Rouse v. USA

Filing 26

ORDER for Response to 13 MOTION for New Trial . Government Response to Motion due by 8/1/2018. Reply due 20 days after receipt of the Government's Brief. Signed by U.S. District Judge Lawrence L. Piersol on 7/3/18. (SLW)

UNITED STATES DISTRICT COURT.
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*

DESMOND ROUSE,

*

CIV 06-04008

*

CR 94-40015

Petitioner,
-vs-

ORDER

UNITED STATES OF AMERICA,

*
*

Respondent.

*

*

Pending before the Court is Desmond Rouse's("Rouse") Motion For New Trial.(CIV 0604008,Doc. 13.) Rouse also filed a motion in the Eighth Circuit for authorization to file a second

or successive habeas petition.' Rouse asked this Courtto hold his Motion For New Trial in abeyance

pending the Eighth Circuit's ruling on his application to file a second habeas.(Doc. 13 at 2.)
On June 4, 2018, the Eighth Circuit issued a judgment denying Rouse's petition for
authorization to file a successive habeas application in the district court, and the Eighth Circuit's
mandate was issued that same day.

Presumably because he recognized the Eighth Circuit might deny authorization for him to
file a second or successive habeas petition. Rouse seeks relief under the catchall provision of Rule

60(b)(6)in his Motion For New Trial.^ A district court may grant relief under Rule 60(b)(6) where
there are "extraordinary circumstances" or "where the judgment may work an extreme and imdue

hardship,and should be liberally construed when substantialjustice will thus be served." Cornell v.

'The Eighth Circuit's authorization is a prerequisite under 28 U.S.C.§ 2244(b)(3)to the filing of a second or
successive habeas petition in this Court.

- The rule provides for relieffrom a finaljudgment or order for any reason thatjustifies relief.See Fed.R.Civ.P.
60(b)(6).

Nix, 119 F.3d 1329,1332(8th Cir. 1997). The Court notes that Cornell v. Nix was decided after the

enactment ofthe Antiterrorism and Effective Death Penalty Actof 1996("AEDPA"),but the petition
in that case was filed prior to the effective date ofthe Act,and the Eighth Circuit noted that the Act's
strictures did not apply. Cornell v. Nix, 119 F.3d at 1330 n. 2.

In Gonzalez v. Crosby, the United States Supreme Court instructed that a petitioner's Rule

60(b) motion should be construed as a second or successive petition when it pursues a substantive
claim. 545 U.S.524,531-32(2005). Such claims include motions that pursue an alternative ground
for relief and those that "attack[]the federal court's resolution of a previous claim on the merits."
Id.

Rouse contends that he should be allowed to challenge his conviction under Rule 60(b)(6)
because he believes there was no merit-based resolution ofthe issue whether racial animus led to his

conviction. He submits an Affidavit of Vema Boyd ("Boyd"), a non-juror, alleging that one of the

jurors, Patricia Pickard ("Pickard"), told Boyd of several instances of jokes regarding Native
Americans and a comment that Native Americans abuse little girls that were made during

deliberations.(Doc. 18,Ex. M,Affidavit of Vema Boyd.)During hearings on this issue in 1994,this
Court did not allow Boyd to testify to matters that allegedly occurred during deliberations because

of the "no-impeachment" mle, which generally bars juror testimony for the purpose of impeaching
a verdict.^ (CR 94-40015, Doc. 278, Transcript of Oct. 26, 1994 hearing at pp. 4, 24, 25, 53.)

Pickard was questioned at a hearing on November 3,1994(doc. 290),and two other members of the
jury testified at a hearing on January 4, 1995.(Docs. 317, 318.) They were not allowed to testify
aboutjury deliberations. Rouse argues that the compelling evidence in this case calls for disregard
of Rule 606(b)'s "no impeachment" rule, and that questions and testimony about what was said

^ Affidavits and statements by jurors may not ordinarily be used to impeach a verdict once the jury has been
discharged unless extraneous influence has invaded the jury room. McDonald v. Pless, 238 U.S. 264, 267-69(1915).
Rule 606(b)ofthe Federal Rules ofEvidence expressly prohibits the use of ajuror's affidavit to impeach a verdict except
with respect to extraneous prejudicial information or outside influence. This is known as the no-impeachment rule, and
it "has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been
entered, it will not later be called into question based on the comments or conclusions they expressed during
deliberations." Pena-Rodriguez v. Colorado, — U.S. —,137 S.Ct. 855, 861 (2017).

duringjury deliberations should be allowed in light ofthe Supreme Court's recent decision in PenaRodriguez v. Colorado, — U.S. —,137 S.Ct. 855(2017).

In Pena-Rodriguez, the defendant was convicted by a Colorado jury of harassment and
unlawful sexual contact. Following discharge ofthejury,twojurors told defense counsel that ajuror

had expressed anti-Hispanic hias toward the defendant and his alibi witness during deliberations.
Counsel obtained affidavits from the two jurors describing a number of biased statements by the

otherjuror indicating that he believed the defendant was guilty because Mexican men believed they
could do whatever they wanted with women,and that he thoughtthe defendant committed the crimes
because he was Mexican. The juror also said that he did not find the defendant's alibi witness
credible because he was"an illegal." After reviewing the affidavits,the trial court acknowledged the

juror's apparent bias, but denied the defendant's motion for a new trial based on Colorado's version
of the no-impeachment rule. The Colorado Supreme Court affirmed. The Supreme Court granted
certiorari "to decide whether there is a constitutional exception to the no-impeachment rule for
instances of racial bias." Pena-Rodriguez, 137 S.Ct. at 863.

The Supreme Court held that"where ajuror makes a clear statement that indicates he or she
relied on racial stereotypes or animus to convict a criminal defendant,the Sixth Amendmentrequires

that the no-impeachment rule give way in order to permit the trial court to consider the evidence of
thejuror's statement and any resulting denial ofthejury trial guarantee."Pena-Rodriguez, 137 S.Ct.
at 869. However,"[n]ot every offhand comment indicating racial bias or hostility willjustify setting

aside the no-impeachment bar to allow further judicial inquiry." Id. The Supreme Court explained
what must be shown for the inquiry to proceed:
[Tjhere must be a showing that one or morejurors made statements exhibiting overt
racial bias that cast serious doubt on the fairness and impartiality of the.jury's

deliberations and resulting verdict. To qualify, the statement must tend to show that
racial animus was a significant motivating factor in the juror's vote to convict.
Whether that threshold showing has been satisfied is a matter committed to the
substantial discretion ofthe trial court in light of all the circumstances,including the

content and timing of the alleged statements and the reliability of the proffered
evidence.

Id. The Supreme Court concluded that the juror's statements at issue in Pena-Rodriguez "were
egregious and unmistakable in their reliance on racial bias." Pena-Rodriguez, 137 S.Ct. at 870. In
reaching that conclusion, the Court observed that the juror not only deployed a dangerous racial
stereotype to conclude the defendant was guilty and his alibi witness should not be believed,but also
encouraged other jurors to join him in convicting on that basis. Id.

Rouse argues that Pena-Rodriguez allows this Court to admit and consider Boyd's affidavit

and testimony and that, under Rule 60(b)(6), he is entitled to a new trial or at least a hearing to
present evidence that one or morejurors were motivated by racial animus in their decision to convict.

Rouse also makes a separate argument that the new medical and recantation evidence he has
submitted with his Motion For New Trial demonstrates he is "actually innocent" and, therefore, he

should be allowed to proceed on the merits of his claims under Rule 60(b)(6) even if his claims are
procedurally barred. Rouse asserts that the new evidence "completely undermines any semblance
of fairness in the trial."(Doc. 18 at p. 23.)

The standard for showing actual innocence where a petitioner has defaulted is demanding,

and the gateway to adjudication on the merits "should open only when a petition presents 'evidence
ofinnocence so strong that a court cannot have confidence in the outcome ofthe trial unless the court
is also satisfied that the trial was free of nonharmless constitutional error.'"McQuiggin v. Perkins,

569 U.S. 383,401 (2013)(quoting Schlup v. Delo, 513 U.S. 298, 316(1995)).

The Government will be directed to file a response to the Motion For New Trial. The

response shall address the issues whether this Court has authority to consider Rouse's claims under
Rule 60(b)(6)and,if Rule 60(b)applies, whether Rouse has presented sufficient evidencejustifying
such relief. Rouse will be given an opportunity to reply. The Court will address the other pending
motions,including the Motion to Consolidate Rouse's case with those ofhis co-defendants,doc. 15,
after it has determined whether Rule 60(b)(6) is applicable to possibly afford relief in this case.
Accordingly,

rr IS ORDERED:

1. That, on or before August 1, 2018, the Government shall respond to the Motion
for New Trial,and the response shall include briefing on whether Rouse's claims can
serve as the basis for relief under Rule 60(b)(6); and

2. That, within 20 days after receipt of the Government's brief. Rouse shall file a
reply to any arguments made by the Government.

?di

Dated this W day of July, 2018.
da
BY THE COURT:

(Pol

\m^M.

^awrence L. Piersol

Jnited States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK

BY:^

(SEAL)

DEPUTY