Rouse v. USA
Filing
56
MEMORANDUM OPTION AND ORDER granting Certificate of Appealability, denying 50 Motion for an adverse inference ; dismissing 13 Motion for New Trial. Signed by U.S. District Judge Lawrence L. Piersol on 03/18/2020. (MSB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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DESMOND ROUSE and JESSE ROUSE,
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CIV 06-4008
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Petitioners,
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vs.
MEMORANDUM OPINION
AND ORDER
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UNITED STATES OF AMERICA,
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Respondent.
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This matter is before the Court on Petitioners Desmond Rouse and Jesse Rouse's motion
for a new trial. (Doc. 13.) At the request of Petitioners, their motions for new trial were
consolidated with all further filings to be made in CIV 06-4008. (Doc. 42.) The United States
opposes Petitioners' motion for new trial. (Doc. 30.)
Petitioners seek an order grantiag them a new trial or, in the alternative, granting a hearing
on the merits of their motion and an order allowing them to interview the trial jurors in their
criminal case. (Doc. 13.) They seek this relief under Federal Rule of Civil Procedure 60(b)(6).
(Doc. 18.) The Government notes that this is one of many substantive post-conviction pleadings
filed by Petitioners, and the Government argues that this motion should be dismissed because it
amounts to an unauthorized successive 28 U.S.C. § 2255 motion and because Petitioners' claims
lack merit.
After careful consideration, the Court denies Petitioners' motion for new trial.
BACKGROUND
Following athree-weekjury trial in this Court, Petitioners were convicted on several counts
of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c). Petitioners are Native American
men. Another Native American man was acquitted.
After trial, the Clerk's Office received a call from a co-worker ofjuror Patricia Pickard.
The co-worker, Vema Boyd (then Severson), said that Patricia Pickard was prejudiced against
Native Americans. This Court notified counsel for Petitioners and held fom separate hearings on
the alleged juror misconduct. See CR 94-40015,Doc. 323-1. Pursuant to Federal Rule ofEvidence
606(b), the Court instructed the attorneys not to contact any ofthe jurors, and the jurors were not
allowed to testify about any statement made or incident that occurred during deliberations. In
addition to hearing the testimony of Boyd and Pickard, the Court heard testimony from the jury
foreperson, the altemate juror, and multiple co-workers of Pickard. The Court ultimately
concluded thatjuror Pickard had "responded honestly and accurately" during voir dire and had not
concealed "any racially prejudiced attitudes, beliefs, or opinions" about Native Americans. Doc.
323 at 11. The Court found that"as betweenjuror Pickard and Ms.[Boyd],juror Pickard [was]the
more credible witness." Id. The Court further found that the jury foreman and an altemate juror
testified credibly "that they did not hear juror Pickard or any other juror make racially disparaging
remarks about the defendants or about Native American people during the trial," id. at 14, and
"that no improper outside influence affected the jury." Id. at 5. Petitioners' motion for a new trial
was denied. Id.
On direct appeal, a divided panel ofthe Eighth Circuit initially reversed and remanded for
a new trial, holding that his Court erred in rejecting expert testimony that the children's testimony
regarding sexual abuse had been coerced by the adults in the case. See United States v. Rouse, 100
F.3d 560, 566 (8th Cir. 1996). However,the Eighth Circuit panel granted rehearing and affirmed
the exclusion of the proposed expert testimony, and it affirmed this Court's denial ofthe motion
for new trial which was based upon co-worker Boyd's testimony. United States v. Rouse, 111 F.3d
561, 573 (8th Cir. 1997)(holding in part that this Court's fmdings on the motion for new trial
established that no new trial was warranted because ofjuror Pickard's responses during voir dire).
The facts underlying Petitioners' convictions are described in the Eighth Circuit's opinion
affirming the convictions after rehearing. Petitioners, who are brothers, and their two cousins were
convicted of sexually abusing young female relatives on the Yankton Sioux Indian Reservation:
The victims are granddaughters of Rosemary Rouse. During the summer and fall of 1993,
defendants lived at Rosemary's home on the Yankton Sioux Reservation. The victims also
lived or spent a great deal of time at this home. In October 1993, five-year-old R.R. was
placed -with Doima Jordan, an experienced foster parent, due to neglect and mahiutrition.
R.R. disclosed apparent sexual abuse to Jordan, who reported to the Tribe's Department of
Social Services("DSS")(as Jordan was required to do)that R.R. said she had been sexually
abused. On January 10,1994,DSS told Jordan to take R.R. to therapist Ellen Kelson. After
an initial interview. Kelson reported to DSS (as Kelson was required to do)that R.R. had
reported acts of sexual abuse against herself and other children in the Rouse home. On
January 11, DSS removed thirteen children living in the Rouse home and placed them in
Jordan's foster home. Of the four who disclosed sexual abuse by their uncles, T.R. was
seven years old, L.R. was six, R.R. was five, and J.R. was four and one-half. The fifth
victim ofthe alleged offenses, F.R., was a twenty-month-old infant.
Rouse, 111 F.3d at 565.
The children were examined by two physicians, Richard Kaplan and Robert Ferrell, who
found physical injuries consistent with sexual abuse. The evidence at trial included the testimony
of the four oldest children and another child who witnessed acts of abuse, medical evidence,
medical experts for the government and for the defense, and the testimony of an FBI agent and a
BIA criminal investigator, both who interviewed the children. Id. at 566. Petitioners also presented
numerous lay witnesses in support oftheir defense at trial.
In 1999, Petitioners filed a second motion for a new trial pursuant to Rule 33(b)(1) of the
Federal Rules of Criminal Procedure based on recantations ofthe victims.^ See CR 94-40015,Doc.
428. This Court held a four-day evidentiary hearing in 2001. See United States v. Rouse, 329 F.
Supp.2d 1077(D.S.D. 2004). Jessica, Thrista,Lucritia and Rosemary Rouse testified that the abuse
did not occur. Experts and several other -witnesses testified. This Court concluded that the
recantations were not credible. Id. The Eighth Circuit affirmed that finding;
After revie-wing the record as a whole, we conclude that the district court's
credibility findings are not clearly erroneous and the denial ofthe new trial motion was not
a clear abuse of discretion. By the time of the evidentiary hearing, the children had been
living -with their mothers for at least two years, -within walking distance of their
grandmother's home.These women never believed the children's accusations, and testified
on the defendants' behalf at trial. The children knew their grandmother and mothers missed
the defendants. The children saw letters -written by the uncles from prison and spoke to the
men by telephone. Family members drove the children to interviews by Dr. Underwager,
whose stated purpose was to free their uncles from lengthy prison sentences. The district
court's finding that the recantations were the product offamily pressure and therefore not
credible is overwhelmingly supported by this record. Combined -with the defendants'
failure to refute the powerfhl medical evidence of abuse at trial, this finding fully justified
the court's conclusion "that there is no reasonable probability that the recantations would
^ Fury Rouse was only 20 months old at the time ofthe abuse and did not testify at trial and thus
did not recant.
produce an acquittal if a new trial were held." Accordingly,the district court did not abuse
its discretion in denying the defendants'joint motion for a new trial.
United States v. Rouse,410 F.3d 1005, 1009 (8th Cir. 2005).,
On November 24,1998, Jesse Rouse filed his first motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255, arguing ineffective assistance oftrial counsel. See CIV 984213,Doc. 1. The motion was denied as untimely. Id. at Doc. 17.
In 2006, Desmond Rouse filed his first pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.(Doc. 1.) Desmond Rouse alleged that he is innocent, but
he did not identify the constitutional grounds for his motion. That motion was filed more than
seven years after the deadline, and it was denied as untimely.(Doc. 8.) .
Petitioners filed the pending motion for new trial on March 7, 2018. The Court held
argument on the motion on October 31, 2018. Pre-hearing and post-hearing briefs were filed by
the parties. The motion is now ready for a ruling.
CLAIMS PRESENTED
The current 60(b)(6) motion lists two grounds for relief. Petitioners first rely on the United
States Supreme Court's dtcision'mPena-Rodriguezv. Colorado,-\I. ,137 S. Ct. 855 (2017).
There, the Supreme Court held that the "no impeachment" evidence rule for jurors must yield to
the Sixth Amendment when ajuror makes a clear statement that indicates he or she relied on racial
stereotypies or animus to convict. See 137 S.Ct. at 869. The trial court may then examine the
evidence and any resulting denial ofthe Sixth Amendmentjury trial right. See id. In their motion
for new trial, Petitioners again seek to develop evidence in support oftheir claim that the jury may
have relied on racial prejudice to convict them.
Petitioners' second ground for relief is that new evidence makes them "actually innocent"
and exonerates them from their convictions and sentence. First, there is evidence that the victims,
who are now adults, are recanting their trial testimony. Second, Petitioners rely on experts who
submitted affidavits opining that significant changes in the field of sexual abuse in children show
that the forensic medical evidence of sexual abuse that was presented at trial was inaccurate,
misleading and potentially false. Petitioners' experts criticize the physical examinations conducted
by Dr. Ferrell and Dr. Kaplan. Citing Schlup v. Delo,513 U.S. 298 (1995), Petitioners argue that
no reasonable unbiased juror hearing this new evidence would convict Petitioners and,therefore,
the Court ought to allow Petitioners to proceed to the merits oftheir claims.
DISCUSSION
Applicable Law
Federal Rule of Civil Procedure 60(b)(6) allows a district court to grant relief from a final
judgment, order, or proceeding for any reason thatjustifies relief. See Fed. R.Civ.P. 60(b)(6). The
Eighth Circuit has described the purpose of Rule 60(b):
Rule 60(b) was intended to preserve the delicate balance between the sanctity of final
judgments and the incessant command of a court's conscience that justice be done in light of
all die facts. Thus, the Rule is intended to prevent the judgment from becoming a vehicle of
injustice.
Rosebud Sioux Tribe y. A&P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984)(intemal quotations
and citations omitted). A Rule 60(b)(6) motion must be made "within a reasonable time." Fed. R.
Civ. P. 60(c)(1).
District courts have jurisdiction to consider Rule 60(b) motions in habeas proceedings so
long as the motion attacks not the substance of the court's resolution of the claim on the merits,
but some defect in the integrity ofthe habeas proceedings. See Gonzalez v. Crosby, 545 U.S. 524,
532(2005). Gonzalez involved a habeas petition under 28 U.S.C. § 2254, but because § 2254 and
§ 2255 are nearly identical in substance,the Eighth Circuit applies Gonzalez to Rule 60(b)motions
to reopen § 2255 proceedings. See United States v. Lee, 792 F.3d 1021, 1023—25 (8th Cir. 2015)
(using Gonzalez to determine if a Rule 60(b) motion was a successive § 2255); Davis v. United
States, 417 U.S. 333, 343 (1974)(section 2255 is "intended to afford federal prisoners a remedy
identical in scope to federal habeas corpus"). Examples of Rule 60(b) motions that properly raise
a defect in the integrity of the habeas proceedings include a claim of fraud on the court or
challenges to a procedural ruling that precluded a merits determination, such as failure to exhaust,
procedural default, or time bar. Gonzalez, 545 U.S. at 532 im.4,5. Courts are directed to use their
broad powers rmder Rule 60(b)(6) only in "extraordinary circumstances" which "rarely occur" in
the habeas context. Davis v. Kelley, 855 F.3d 833, 835 (8th Cir. 2017). See also Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005)(noting that Rule 60(b) "authorizes relief in only the most
exceptional cases"). "In determining whether extraordinary circumstances are present, a court
may consider a wide range of factors. These may include, in an appropriate case, 'the risk of
injustice to the parties' and 'the risk of undermining the public's confidence in the judicial
process.'"Davis v. Kelley, 855 F.3d at 835 (quoting Buck v. Davis,- U.S.-,137 S.Ct. 759,778
(2017)).
The law limits a defendant to one § 2255 motion unless he obtains certification for a
successive motion from the Court of Appeals. See 28 U.S.C. §§ 2244, 2255(e),(h); Gonzalez, 545
U.S. at 528 (addressing § 2254). Because of the relative lenience of Rule 60(b), petitioners
"sometimes attempt to file what are in fact second-or-successive habeas petitions under the guise
of Rule 60(b) motions." In re Edwards, 865 F.3d 197, 203 (5th Cir. 2017)(citing Gonzalez, 545
U.S. at 531-32).
The Eighth Circuit recognized that prisoners had begun to use Rule 60(b) motions to avoid
the authorization requirement and iastructed district courts to employ a screening procedure on
Rule 60(b) motions. Boyd v. United States, 304 F.3d 813,814(8th Cir. 2002)(per curiam); United
States V. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005)(per curiam)("It is well-established that
inmates may not b5q)ass the authorization requirement of28 U.S.C. § 2244(b)(3)for filing a second
or successive § 2254 or § 2255 action by purporting to invoke some other procedure.").
In Boyd,the Eighth Circuit instructed:
[W]e encourage district courts, in dealing with purported Rule 60(b) motions
following the dismissal of habeas petitions, to employ a procedure whereby the district
court files the purported Rule 60(b) motion and then conducts a brief initial inquiry to
determine whether the allegations in the Rule 60(b) motion in fact amount to a second or
successive collateral attack under either 28 U.S.C. § 2255 or § 2254. If the district court
determines the Rule 60(b) motion is actually a second or successive habeas petition, the
district court should dismiss it for failure to obtain authorization from the Court ofAppeals
or, in its discretion, may transfer the purported Rule 60(b) motion to the Court of Appeals.
Depending on which course of action the district court chooses, the petitioner may either
appeal the dismissal ofthe purported Rule 60(b) motion or, if the district court has elected
to transfer the pmported 60(b)motion to the Court ofAppeals, await the action ofthe Court
of Appeals.
Boyd, 304 F.3d at 814. In the present case. Petitioners sought authorization from the Eighth Circuit
to file another § 2255 motion but the Court denied authorization. See In re Desmond Rouse, No.
18-1478, Doc. 4668455 (8th Cir. June 4, 2018) (Judgment). Accordingly, Petitioners' motion
under Rule 60(b)(6) must be dismissed if it is effectively a successive habeas petition. Boyd, 304
F.3dat814.
1. Effect of Pefla-Rodriguez v. Colorado,- U.S.-,137 S. Ct 855(2017)
In Pena-Rodriguez, the Supreme Court created a narrow exception to the no-impeachment
rule found in Federal Rule ofEvidence 606(b).^ The Court held that "where ajuror makes a clear
statement that indicates he or she relied on racial stereotypes or animus to convict a crinunal
defendant,the Sixth Amendment requires ... the trial court to consider the evidence ofthe juror's
statement and any resulting denial of the jury trial guarantee." 137 S.Ct. at 869. The Court's
decision addresses only what a court must do when presented with evidence of racial bias; it does
not address how or when a criminal defendant may seek to obtain evidence of racial bias. The
Court noted that the methods of investigating potential racial animus remain governed by local
rules. See id. ("The practical mechanics of acquiring and presenting such evidence will no doubt
be shaped and guided by state rules ofprofessional ethics and local court rules, both ofwhich often
limit counsel's post-trial contact with jurors.").
Invoking Pena-Rodriguez, Petitioners argue that the Court should allow them to interview
jurors fi-om their trial to determine if racism played a part in their convictions, without the
restriction ofthe no-impeachment rule in Federal Rule ofEvidence 606(b) preventing inquiry into
comments made in the jury room.
Rule 606(b) provides:
(b)During an Inquiry Into the Validity of a Verdict or Indictment.
(1)Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict
or indictment, ajuror may not testify about any statement made or incident that occurred during
the jury's deliberations; the effect of anjdhing on that juror's or another juror's vote; or any juror's
mental processes concerning the verdict or indictment. The court may not receive ajuror's
affidavit or evidence of a juror's statement on these matters.
(2)Exceptions. A juror may testify about whether:
(A)extraneous prejudicial information was improperly brought to the jury's attention;
(B)an outside influence was improperly brought to bear on any juror; or
(C)a mistake was made in entering the verdict on the verdict form.
Fed. R. Evid. 606(b). The rule preventing inquiry into comments made in the jury room is known
as the "no-impeachment rule."
In response,the Government urges that 1)the Court lacks jurisdiction to decide Petitioners'
Rule 60(b)(6) motion because it is in reality a second or successive § 2255 petition, 2) PenaRodriguez is not retroactive, 3) the "new evidence" of alleged racial discrhnination is not
sufficiently reliable tojustify departing from the no impeachment rule, and 4)the prior proceedings
were sufficient to ensure Petitioners had a fair trial and that racial bias did not affect the jury's
deliberations.
a. Successive § 2255 Petition
The first question the Court must address is whether this is a legitimate Rule 60(b)(6)
motion or if it is in reality an unauthorized second or successive § 2255 without the necessary
permission ofthe Eighth Circuit. A motion pursuant to Rule 60(b)(6) ofthe Federal Rules of Civil
Procedure can be a"second or successive petition" requiring the authorization ofthe Eighth Circuit
Court of Appeals if it contains a claim. Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). "For
the purpose of determining whether the motion is a habeas corpus application, claim is defined as
'an asserted federal basis for relieffrom a state court's judgment of conviction' or as an attack on
the 'federal court's previous resolution of the claim on the merits.'" Davis v. Kelley, 855 F.3d at
835 (quoting Gonzales, 545 U.S. at 530, 532). Conversely,
No claim is presented ifthe motion attacks some defect in the integrity ofthe federal
habeas proceedings. Likewise, a motion does not attack a federal court's determination on
the merits if it merely asserts that a previous ruling which precluded a merits determination
was in error—^for example, a denial for such reasons as failure to exhaust, procedural
default, or statute of limitations bar.
Ward, 577 F.3d at 933 (intemal quotes omitted).
Petitioners raised the jury prejudice claim in their fust motion for a new trial. This Court
held four separate hearings on the claim and issued an Order denying the motion for new trial
based on juror bias. Petitioners seek to distinguish that cMm from their current jury bias claim,
arguing that their new claim is based on the subsequent change in the law under Pena-Rodriguez.
The gravamen ofPetitioners' argument is that because Federal Rule ofEvidence 606(b)prohibited
jurors from being questioned about potential racial bias during deliberations, no decision was
reached by this Court on the merits of their claim that juror bias infected the deliberations in this
case. Petitioners also argue that Pena-Rodriguez qualifies as an extraordinary circumstance that
makes Rule 60(b)(6)the appropriate mechanism to address this issue.
The Court concludes that Petitioners are trying to present a new reason why they should be
relieved of their convictions. Petitioners are not trying to reopen their initial §2255 petitions and
overcome a procedural barrier to their adjudication. Rather,they are attacking this Court's previous
resolution ofthejury bias claim. Eighth Circuit precedent precludes reconsideration ofPetitioners'
jury bias claim based on Petitioner's new argument.
In Thompson v. Nixon, Til F.3d 1098(8th Cir. 2001),the petitioner filed a motion to recall
the mandate claiming that a recent Supreme Court decision allowed him to bypass the limit on
second or successive petitions set forth in § 2244(b)(1). Id. at 1099. The petitioner argued in his
first habeas petition that he was convicted under incorrect jury instructions and was therefore
entitled to post-conviction relief. M at 1100. The Eighth Circuit affirmed the district court's denial
of the petition challenging the jury instruction. Id. at 1101. Petitioner filed a subsequent habeas
petition with the district court again challenging the jury instruction. Id. The district court
determined that the claim was successive and dismissed the claim. Id. The petitioner filed an
Application for a Certificate of Appealability with the Eighth Circuit, arguing that the Missouri
Supreme Court had held the jury instruction erroneous and claiming that the incorrect jury
instruction denied him due process under the Fourteenth Amendment. Id. The Eighth Circuit
denied the petitioner's application. Id.
Subsequently, the United States Supreme Court issued a decision suggesting that a new
interpretation of a state criminal statute that merely clarifies the statute should apply to cases on
collateral review.^ Id. at 1099. The petitioner then filed a motion to reeall the mandate hi the
Eighth Circuit, arguing that Missouri Supreme Court decisions finding the jury instruction
erroneous must be applied retroactively in order to comply with the Due Process Clause. Id.
The power to recall a mandate, like granting a motion under Rule 60(b)(6), is limited to
"extraordinary circumstances." Id. at 1100. The Eighth Circuit held that the issuance of the
Supreme Court decision "does not necessarily meet this standard," stating:"New decisions will of
course be handed down by the Supreme Court each year. If we were to adopt [petitioner's]
^ The decision is Fiore v. White, 531 U.S. 225(2001)(per curiam).
argumeiit, every new Supreme Court decision could be considered an 'extraordinary circumstance'
and a sufficient basis to recall a mandate." Id.
The Eighth Circuit went on to address the petitioner's argument that the Missouri Supreme
Court decisions holding that the jury instruction given in his case was incorrect, and the United
States Supreme Court decision requiring that the state-court decisions be applied retroactively,
supported his right to habeas relief. The Eighth Circuit rejected this reading of § 2244(b)(1),
concluding that the Supreme Court decision"simply provides a new argument(the merits of which
we need not explore) ih support of the same [constitutional] claim that has been presented twice
before." Id. at 1102.
Similarly,Pena-Rodriguez simply provides a new argument in support of Petitioners'jury
bias claim which this Court has already adjudicated on the merits,and the Eighth Circuit affirmed.'^
After conducting four separate hearings on the alleged juror bias, this Court was satisfied that
racial bias did not affect the jury's decisions in this case. The Court finds Petitioners' allegations
amount to a second or successive collateral attack under § 2255 as Petitioners "in effect ask[]for
a second chance to have the merits determined favorably." Ward v. Norris, 577 F.3d at 933
(quoting Gonzalez, 545 U.S. at 532 n. 5). Thus, Petitioners' jury bias claim that has aheady been
rejected by this Court, and the Eighth Circuit,is barred as a successive petition under § 2244(b)(1).
See 28 U.S.C. § 2244(b)(1) ("A claim presented hi a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall be dismissed.").
To be clear, the Supreme Court has not foreclosed the possibility that a change in the law
may supply an extraordinary circumstance justifying Rule 60(b)(6) relief. In Gonzalez, the
Supreme Court held that a new interpretation ofthe statute oflimitations in the Antiterrorism and
Effective Death Penalty Act ("AEDPA") did not constitute extraordinary circumstances
warranting relief. 545 U.S. at 536-37. The Court observed that "not every interpretation of the
federal statutes setting forth the requirements for habeas provides cause for reopening cases long
since final," but that "[a] change in the interpretation of a substantive statute may have
Furthermore, Petitioners made this same argument to the Eighth Circuit when they petitioned
for authorization to file a second or successive habeas, and the Eighth Circuit declined
authorization.
10
consequences for cases that have already reached final judgment, particularly,in the criminal
context." 545 U.S. at 536, and n. 9.
The Supreme Court's holding in Pena-Rodriguez did not change the interpretation of a
substantive statute. As the Eleventh Circuit has held, Pena-Rodriguez did not create a ne-w
substantive rule; rather, it created a new procedural mechanism for challenging ajury verdict. See
Tharpe v. Warden, 898 F.3d 1342, 1345-46 (11th Cir. 2018). Furthermore, the holding in PenaRodriguez does not rise to the level of extraordinary circumstances justifying Rule 60(b)(6) relief
here. If the new interpretation of the statute of limitations in the AEDPA did not constitute
extraordinary circumstances warranting relief in Gonzalez, the new narrow exception to the noimpeachment
Pena-Rodriguez does not qualify as an extraordinary circumstance justifying
Rule 60(b)(6)relief in this case.
For these reasons. Petitioners' Rule 60(b)(6) motion based on Pena-Rodriguez is a
successive § 2255 and it must be dismissed.
b. Non-Retroactivity ofPena-Rodriguez
Even assuming Petitioners' claim ofracial bias by the jury was not presented and decided
on the merits, and assuming that the Pena-Rodriguez decision is an extraordinary circumstance,
the holding in Pena-Rodriguez is not retroactive and thus does not apply to Petitioners. Where a
Supreme Court decision recognizes a new procedural right but does not make it retroactively
applicable to cases on collateral review, a defendant whose conviction and sentence became fmal
before the decision was announced cannot file a § 2255 motion challenging his conviction or
sentence based upon that newly recognized right. See, e.g., Davis v. Norris,423 F.3d 868,879(8th
Cir. 2005)(petitioner could not bring a second or successive petition on a claim that relied on new
law when it was not presented in a prior application "unless the applicant shows that the claim
relies on a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court,that was previously unavailable")(quoting 28 U.S.C. § 2244(b)(2)(A)).
Only the Supreme Court can decide that a new rule of constitutional law is retroactive for
final convictions. Tyler v. Cain, 533 U.S. 65,6, 662 (2001). The Supreme Court has not decided
whether Pena-Rodriguez announced "a new ride of constitutional law, made retroactive to cases
on collateral review ... that was previously unavailable." 28 U.S.C. §2255(h)(2). In a dissenting
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opinion filed in Tharpe v. Sellers,- U.S.— , 138 S.Ct 545, 551 (2018)(per curiam)(Thomas, J.,
dissenting). Justice Thomas noted that "no reasonable jurist could argue that Pena-Rodriguez
applies retroactively on collateral review." The dissent further stated that "[a] new rule does not
apply retroactively unless it is substantive or a 'watershed rul[e] of criminal procedure.'"Id.
(quoting league v. Lane, 489 U.S. 288, 311 (1989)(plurality opinion)). Consequently, "[sjince
Pena-Rodriguez permits a trial court 'to consider [certain] evidence,' and does not 'alte[r] the
range of conduct or the class ofpersons that the law punishes,' it cannot be a substantive mle."Id.
(citations omitted).
At least one Circuit Court has held that Pena-Rodriguez is not retroactive. See Tharpe v.
Warden, 898 F.3d at 1346. Invoking Pena-Rodriguez, Tharpe, a state prisoner, sought
postconviction reliefin federal district court, arguing that ajuror's racial bias influenced the guilty
verdict in his trial. Tharpe,898 F.3d at 1344. The Eleventh Circuit denied rehefto Tharpe, holding
that Pena-Rodriguez did not apply retroactively. The Court found that Pena-Rodriguez did not
create a new substantive rule; rather, it created a new procedural mechanism for challenging ajury
verdict. Id. at 1345^6. The Eleventh Circuit held that this new procedural mle did not rise to the
level of a watershed, id. at 1346, and it denied a certificate of appealability. See id. at 1347.
This Court agrees with the reasoning ofthe Eleventh Circuit in Tharpe and finds that Pena-
Rodriguez is not retroactive. Petitioners do not argue that Pena-Rodriguez is substantive, and they
have not shown that it is a watershed mle of criminal procedure that implicates fundamental
faimess, which is an"extremely narrow" exception to non-retroactivity. Schriro v. Summerlin,542
U.S. 348, 352(2004).
Petitioners rely on the Supreme Court's decision in Buck v. Davis, — U.S. —,137 S.Ct.
759(2017),to argue that Pena-Rodriguez is significant new law that should allow them to reopen
theirjuror racial bias claim under Rule 60(b)(6). The reliance on Buck is misplaced. Buck does not
hold that the change in law at issue in that case by itself constituted an extraordinary circumstance
that justified relief under Rule 60(b)(6). Rather, the Supreme Court found that three other
extraordinary circumstances justified relief.
In Buck, a capital case, the defendant's lawyer presented an expert witness during the
penalty phase of trial whose report stated that because defendant Buck was black, there was an
"increased probability" that he was likely to pose a danger in the future. 137 S.Ct. at 768. Although
12
the expert concluded that Buck himself was unlikely to pose a danger, the expert's report was
admitted into evidence, and the expert testified about the race factor. Id. at 768-69. Buck's first
collateral petition in state court did not claim his trial counsel was ineffective for introducing this
expert testimony, but his § 2254 federal petition did. Id. at 769—71. The district court rejected this
ineffective assistance of counsel claim as procedurally defaulted. Id. at 770-71. Subsequently, a
change in the law of procedural default was effected by the Supreme Court m Martinez v. Ryan,
566 U.S. 1 (2012)(holding when a state formally limits the adjudication of claims of ineffective
assistance of trial counsel to collateral review, a prisoner may show cause for procedural default
if (1) "the state courts did not appoint counsel in the initial-review collateral proceeding," or
"appointed counsel in [that] proceeding ... was uieffective rmder the \Strickland\ standards;" and
(2) "the underlying .. . claim is a substantial one, which is to say that ... the claim has some
merit"), and Trevino v. Thaler, 569 U.S. 413 (2013)(holding that the exception amounced hi
Martinez extended to state systems that, as a practical matter, deny criminal defendants "a
meaningful opportunity" to pursue ineffective assistance claims on direct appeal).
After Martinez and Trevino, Buck filed a Rule 60(b)(6) motion seeking to reopen his §
2254 case. Buck, 137 S.Ct. at 771-72. After the district court denied relief, the Fifth Circuit denied
a certificate of appealability. Id. at 771-74. Reversing, the Supreme Court detemuned that the
district court had abused its discretion in denying Buck's Rule 60(b)(6) motion.Id. at 116-11,780.
The claim of ineffective assistance of counsel presented in the petition could now be considered
on the merits instead of being dismissed as procedurally defaulted. Buck, 137 S.Ct. at 771-72. The
Supreme Court found the requisite "extraordinary circumstances" to justify relief under Rule
60(b)(6) because of three factors: it was a death penalty case, the underlying claim involved a
"pernicious" race-based claimed injury that harmed the petitioner and the entire community, and
the State of Texas admitted error and consented to resentencings in shnilar cases but refused to
admit error in Buck's case. Id. at 777-80. In his dissent. Justice Thomas noted that the majority's
opinion "relies on a convergence ofthree critical factors that will rarely, ifever,recur." Id. at 78586.
Petitioners' circumstances are not similar to those found extraordinary in Buck. The
information received from juror Pickard's co-worker was troubling and required inquiries into
juror prejudice to the extent allowed under the law, but the extraordinary circumstances in Buck
13
are not present here. This is not a death penalty case,the underlying claim does not involve clearly
racially-prejudiced expert testimony that harmed Petitioners and the entire community, and there
is no governmental admission of error in similar cases.
In addition, Petitioners' case differs procedurally from Buck because this Court has heard
and decided their claim of juror racial bias on the merits, and the Eighth Circuit affirmed this
Court's determination that racial animus was not involved in Petitioners' convictions. In Buck,the
I
defendant was asking the court to address claims that earlier were found to be procedurally
defaulted and never heard on the merits, but a subsequent change in the law announced in Martinez
and Trevino altered that finding. Here,Petitioners'jury racial prejudice claim was not procedurally
defaulted. Rather, Petitioners are offering a new argument and new law hi support of a claim that
has already been adjudicated by this Court on the merits and affirmed on appeal.
Furthermore, in Buck the state waived its argument that Martinez and Trevino should not
apply retroactively to Buck's case. Here the Government has steadfastly argued that PenaRodriguez is not retroactive and does not apply to Petitioners.
For these reasons, the Court concludes that Pena-Rodriguez does not qualify as an
extraordinary circumstance that entitles Petitioners to a new trial or to interview jurors under Rule
60(b)(6), and that the Supreme Court's decision hi Buck does not open the door to Rule 60(b)(6)
relief under the circumstances in this case. Accordingly, Petitioners' Rule 60(b)(6) motion based
on Pena-Rodriguez is a successive § 2255 that must be dismissed.
c. New Evidence of Alleged Racial Discrimination is Not an Extraordinary
Circumstances
To the extent Petitioners' motion is not a successive § 2255 but a legitimate Rule 60(b)(6)
motion, the more recent affidavit of Vema Boyd is not an extraordinary circumstance justifying
60(b)(6) relief. Although the affidavit could be considered some new evidence in support oftheir
racial animus claim because, this time, Boyd reports what juror Pat Pickard allegedly told her
happened or was said in the jury room. Petitioners nevertheless assert in their Rule 60(b) motion
the same basis ofrelief asserted previously—^that racial animus was a factor in the jurors' decision
to convict. The underlying legal argument is the same and this new evidence does not change the
core ofthe racial animus claim.
14
In addition, Boyd's new affidavit seems to differ from some ofher swom testimony before
this Court. On October 25,1994,Boyd testified in court that she knew ofone derogatory thing that
happened in the jury room. CR 94-40015, Doc. 278-1 at 53 (Transcript of Hearing on Court's
Motion re: Juror Misconduct). In her affidavit dated February 23, 2018, over twenty years later,
Boyd mentions three derogatory things Pickard told her occurred in the jury room. Doc. 18-13 at
1-2.
One ofthe derogatory things Boyd states in her 2018 affidavit that Pickard told her is that
one ofthe jurors commented during deliberations that all Native American men abuse little girls."
Id. at 2. At the 1994 hearing, Boyd testified that Pickard mentioned a conversation with a social
worker who told Pickard that Native American girls are used for sexual purposes. Doc. 278-1 at
21. Boyd admitted she did not know whether Pickard mentioned this type of comment in the
presence of other jurors. Doc. 278-1 at 56. This is not necessarily contradictory, but it is less than
clear if that was the one derogatory thing from the jury room that Boyd knew ofin 1994.
In summary,Boyd's affidavit does not convince this Court that it erred when findiag Boyd
to be less credible than her juror co-worker, Pat Pickard. The new information provided by Boyd
over 20 years later does not meet the high standard of"extraordinary circumstances" that would
justify relief under Rule 60(b)(6)in this case.
d. Prior Proceedings Sufficient
After careful review of the prior proceediags and the 2018 affidavit of Vema Boyd, the
Court remains convinced that Petitioners received a fair trial and that racial bias did not affect the
jury's deliberations or verdict.
In sum, the Court finds that Petitioners' Pena-Rodriguez claim in their Rule 60(h)(6)
motion is a second or successive petition, brought without authorization from the Eighth Circuit,
and therefore concludes that it lacks jurisdiction to entertain the motion.
2.
Actual Innocence
Citing Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggen v. Perkins, 569 U.S. 383
(2013),Petitioners attempt to overcome the bar to filing a second or successive § 2255 by arguing
15
that there is new evidence showiag they are "actually innocent" ofthe crimes for which they were
convicted.
In Schlup, the Supreme Court recognized that a habeas petitioner could present a claim of
actual iimocence as a "gateway" to resurrecting procedurally defaulted claims of constitutional
error which occurred in the underlying trial, but "such a claim requires petitioner to support his
allegations of constitutional error with new rehable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at
trial." Schlup, 513 U.S. at 324. Petitioners asserting innocence as a gateway to defaulted claims
must establish that, considering the new evidence, "it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327. The Supreme
Court explained in House v. Bell, 547 U.S. 518(2006),that the Schlup standard "is demanding and
permits review only in the 'extraordinary' case. At the same time, though, the Schlup standard
does not require absolute certainty about the petitioner's guilt or innocence." House, 547 U.S. at
538 (citations omitted).
In McQuiggin, the Supreme Court held that a state prisoner seeking federal habeas relief
can overcome a statute of limitations defense by presenting proof of actual innocence. See 569
U.S. at 386 ("actual innocence, if proved, serves as a gateway through which a petitioner may
pass" to avoid a statute oflimitations defense). The gateway opens "only when a petition presents
evidence of innocence so strong that a court cannot have confidence m the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional error." Id. at
401 (quoting Schlup, 513 U.S. at 316). The Court reafSrmed that "a credible showing of actual
innocence may allow a prisoner to pursue his constitutional claims (here, ineffective assistance of
coimsel) on the merits notwithstanding the existence of a procedural bar to relief." McQuiggin,
569 U.S. at 392.
The Supreme Court has yet to determine whether a freestanding actual innocence claim
would render unconstitutional a conviction and sentence that is otherwise free of constitutional
error. Danshy v. Hohhs, 766 F.3d 809, 816 (8th Cir. 2014); McQuiggin, 569 U.S. at 392
(acknowledging that Supreme Court had "not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence"); District Attorney's Office v.
Osborne, 557 U.S. 52, 71 (2009)(stating that whether a federal constitutional right to be released
16
upon proof of"actual innocence" exists is an open question with which the Court has "struggled"
over the years). See also Herrera v. Collins, 506 U.S. 390,417(1993)(assuming that in a capital
case, a truly persuasive demonstration of 'actual innocence' made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state
avenue open to process such a claim").
The Supreme Court has established, however, that if such a claim were recognized, the
threshold would be "extraordinarily high," Dansby,766 F.3d at 816. The Eighth Circuit described
the distinction between a "freestanding" actual innocence claim and actual iimocence as a
"gateway" to revive an otherwise defaulted habeas claim:
The Supreme Court has not decided whether a persuasive demonstration of actual
innocence after trial would render imconstitutional a conviction and sentence that is
otherwise free of constitutional error. See House v. Bell, 547 U.S. 518, 554-55(2006). The
Court has established, however,that the threshold for any such claim,ifit were recognized,
would be "extraordinarily high." Herrera v. Collins, 506 U.S. 390, 417 (1993). The
threshold, ifit exists, would require "more convincing proof than the "gateway" standard
that allows for consideration of otherwise defaulted constitutional claims upon a showing
of actual iimocence. House,547 U.S. at 555;see Schlup v. Delo,513 U.S. 298,315 (1995).
Thus,on a freestanding claim of actual innocence,it is not sufftcient that a petitioner shows
even that it is "more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt." Id. at 327. The "extraordinarily high" threshold, if
recognized, would be even higher. House, 547 U.S. at 555.
Dam&y,766 F.3d at 816.
Here, Petitioners' assertion of innocence does not merely serve as a "gateway" to allow
this Court to consider claims that would otherwise be procedurally barred. Rather, as noted earlier.
Petitioners' claim is that they are actually innocent of the crimes for which they were convicted.
In other words. Petitioners seek to establish that their actual innocence is itself the constitutional
basis of their successive petition. The Court will assume for purposes of this motion that such a
freestanding claim of actual innocence is recognized, and the Court will review the two types of
purportedly new evidence that Petitioners rely on as evidence of their actual innocence:
recantations and new medical experts.^
^ Section 2255(h) bars federal prisoners from filing a second or successive § 2255 motion unless
it has been "certified as provided in section 2244 by a panel ofthe appropriate court of appeals to
contain ... newly discovered evidence that, ifproven and viewed in light ofthe evidence as a
whole, would he sufficient to establish by clear and convincing evidence that no reasonable
17
In House v. Bell, the Supreme Court elaborated on how a habeas court is to weigh evidence
presented in support of a Schlup gateway actual innocence claim:
Schlup makes plain that the habeas court must consider"'all the evidence,'"old and new,
hicrirninatmg and exculpatory, without regard to whether it would necessarily be admitted
under "rules of admissibility that would govern at trial." See id., at 327-328, (quoting
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi.
L.Rev. 142, 160 (1970)). Based on this total record, the court must make "a probabilistic
determination about what reasonable, properly instructed jurors would do." 513 U.S., at
329, 115 S.Ct. 851. The court's function is not to make an independent factual
determination about what likely occurred, but rather to assess the likely impact of the
evidence on reasonable jurors. Ibid.
* * *
A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in
light of the new evidence, no reasonable juror would find him guilty beyond a reasonable
doubt-or, to remove the double negative, that more likely than not any reasonable juror
would have reasonable doubt.
*
*
Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry
requires the federal court to assess how reasonable jurors would react to the overall, newly
supplemented record. See ibid. If new evidence so requires, this may include consideration
factfinder would havefound the movant guilty ofthe offense." 28 U.S.C. § 2255(h)(1)(emphasis
added). Petitioners presented the same new evidence to the Eighth Circuit in support oftheir
petition to file a successive § 2255. They asked the Eighth Circuit to permit them to file a
successive motion under Schlup and McQuiggin even ifthe Court found Petitioners failed to
meet the § 2255(h)requirements. The Eighth Circuit summarily denied authorization to file a
new § 2255 without discussion. See In re Desmond Rouse, No. 18-1478, Doc. 4668455 (8th Cir.
June 4,2018)(Judgment). The Eighth Circuit may have decided Petitioners fa:iled to make a
prima facie showing ofthe requirements for a successive § 2255. See 28 U.S.C. § 2244(b)(3)(C)
("The court of appeals may authorize the filing of a second or successive application only if it
determines that the application makes a prima facie showing that the application satisfies the
requirements ofthis subsection.")(emphasis added). Or the Eighth Circuit could have decided
Petitioners failed to meet the Schlup requirements for a gateway actual hmocence claim or to
demonstrate the more convincuig proof which would be required to meet the threshold for a
freestanding actual innocence claim—assuming such a claim is cognizable as an avenue for
relief. Dansby, 766 F.3d at 816. Because the Eighth Circuit did not explain why it denied
authorization to file a successive petition, and keeping in mind both that the Eighth Circuit did
not have access to the whole record, and that there was a 30-day statutory deadline for the Eighth
Circuit to decide (here, the Eighth Circuit exceeded the deadline by 60 days), this Court will
determine for itself whether Petitioners have supplied the proof necessary for an actual
innocence claim. See 28 U.S.C. § 2244(b)(3)(D)(requiring the appellate court's decision within
30 days after the motion for a successive petition is filed).
18
of"the credibility ofthe witnesses presented at trial." Ibid.; see also ibid, (noting that "[i]n
such a case,the habeas court may have to make some credibility assessments").
House, 547 U.S. at 538-39.
The Court will review the evidence in Petitioners' case,keeping in mind that a freestanding
actual innocence claim would require "more convincing proof than the "gateway" standard under
Schlup that is set forth above. As stated earlier. Petitioners present two forms of new evidence:
victim recantations and new medical experts.
a. Recantations
Petitioners submitted affidavits ofthe victims indicating that they again are recanting their
allegations of sexual abuse. According to Petitioners, the victims have no reason to falsely recant
now because they are adults with their own families and homes and can no longer be manipulated
by relatives.
After a four-day hearing in 2001, this Court found that the victims' earlier recantations
would not have affected the outcome ofthe trial. See United States v. Rouse,329 F.Supp.2d 1077,
1087-92(D.S.D. 2004).^
As'this Court noted earlier, recanted testimony is notoriously unreliable, and even more so
when the testimony recanted implicates the witnesses' relatives. See 329 F.Supp.2d at 1087-88.
The Eighth Circuit has repeatedly noted that recantations are viewed with suspicion. United States
V. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005)("We view with suspicion motions for new trial
based on the recantation of a material witness because the stability and finality of verdicts would
be greatly disturbed if courts were too ready to entertain testimony from witnesses who have
changed their minds, or who claim to have lied at the trial.") (internal quotation and citation
omitted).
Even if, as urged by Petitioners, the Court ignores the trial testimony of Dr. Ferrell and Dr.
Kaplan regarding their physical findings of sexual abuse, enough other corroborating evidence of
the abuse was presented at trial to leave the Court confident in the outcome even considering the
new recantations. The victims' testimony at trial corroborated portions of other witnesses'
® The Court incorporates its findings and conclusions from its earlier decision herein.
19
testimony about the sexual abuse, including the foster mother who received the initial report of
abuse from one ofthe victims and the federal investigators who were told by the victims that their
uncles hurt tbem. Also, the trial testimony of Dr. Ferrell and Dr. Kaplan regarding spontaneous
statements the children made to them was corroborative ofthe victims' testimony at trial.
The evidence and testimony presented at the 2001 evidentiary hearing on recantations
further support a finding that the recent recantations are not as credible as the victims' trial
testimony. The Court will not repeat all the evidence here, but an example is testimony from the
children's counselors that the kids "continued to describe the acts ofsexual abuse to them after the
trial and before the children were returned home." 329 F.Supp.2d at 1081.
After considering the evidence presented at trial, the evidence presented during the 2001
evidentiary hearing, and the recent affidavits of the recanting victims, the Court cannot conclude
that no reasonable juror would vote to convict Petitioners. A reasonable juror could conclude that
the trial testimony was credible, and a reasonable juror could reject the earlier and the more recent
recantations. In other words, a reasonable juror, considering all the evidence, old and new, still
could have convicted Petitioners ofsexual abuse. Thus,Petitioners fail to meet the burden reqrured
to pass through the Schlup actual innocence gateway (that it is more likely than not that no
reasonablejuror would have found Petitioners guilty heyond a reasonable doubt),and it necessarily
follows that the recantations do not amoimt to the "more convincing proof required for a
freestanding actual innocence claim.
b. Medical Experts
Petitioners submitted affidavits from new medical experts averring that significant changes
in the field of sexual abuse in children show that the forensic medical evidence of sexual abuse
that was presented at trial was inaccurate, misleading and potentially false. Petitioners' experts
criticize the physical examinations for sexual abuse conducted by Dr. Ferrell and disagree with the
findings of Dr. Ferrell and Dr. Kaplan. The Court indicated in an earlier Order that the only
evidence it considers newly discovered evidence is the positions of Dr. Adams and Dr. Ophoven.
(Doc.43.) As a preliminary matter the Court determined that the proposed testimony ofDr. Adams
and Dr. Ophoven is credible.
Petitioners sum up Dr. Ophoven's opinions:
20
Dr. Janis Ophoven, another expert with over 30 years of experience in the field of
specializing in injuries to children, confirms that the criteria relied on hy Dr. Ferrell was
subjective and unreliable ^d led to unreliable findings of sexual assault based on hymen
and anal dilatation, hymenal notches, nonspecific marks and areas oferythema[reddening],
pigmentation, and vaginal ridging, when in fact these are all normal variations found in the
examination ofthe anogenital anatomy in children.
Doc. 18 at 11 (citing Exhibit D #14, 19).
Dr. Adams is an expert in pediatric assessment of sexual assault in children. She opined,
in summary,"that the criteria relied on hy Dr. Ferrell are not signs of trauma at all, but normal
internal structures for genitalia."Id.(citing Exhibit C #6a, 9).
It is the opinion ofDr. Ophoven and Dr. Adams that Dr.Ferrell was not qualified to conduct
the examinations for sexual assault because he had no specialty in pediatrics or pediatric sexual
assault. Further,the new experts take issue with Dr. Ferrell's failure to photograph his findings so
they could be reviewed. Dr. Ferrell is an obstetrician/gynecologist specialist in Yankton, SouthDakota. Doc. 46-1 at p. 3.
Petitioners allege that advances in the area ofinvestigating child sexual abuse indicate that
what Dr. Ferrell believed to be evidence ofsexual abuse are actually normal findings. Dr. Adams
opines "to a reasonable degree of medical certainty that if the children had been examined by an
expert and with the current state ofknowledge concerning normal anatomy,normal variations, and
signs oftrauma and abuse,then the findings[Dr. Ferrell] described would very likely be considered
normal." Doc. 18-3 at^ 10.
The fact that Petitioners' experts disagree with Dr. Ferrell's opinions does not mean Dr.
Ferrell's opinions were false as Petitioners assert. For example, in Gimenez v. Ochoa, the
petitioner argued that the government's experts provided false testimony about the victim's cause
of death hy offering affidavits from his own new experts that purported to contradict the opinions
presented at trial. 821F.3dll36,1142-43(9th Cir. 2016). In rejecting this claim,the Ninth Circuit
noted that, "[t]o the extent that this new testimony contradicts the prosecution's expert testimony,
it's simply a difference in opinion—not false testimony." Id. at 1142. Here,Petitioners present"a
battle between experts" who hold different opiinons about physical findings ofsexual abuse. Id. at
1143. Although the Court does not know what Dr. Ferrell's testimony would be in a retrial, the
Court does know what Dr. Kaplan's testimony would be on a retrial as Dr. Kaplan is deceased and
21
bis trial testimony would be admissible into evidence. See Fed. R. Evid. 804(b)(1)(A) and (B)
(explaining exception to the rule against hearsay for former testimony given as a witness at a trial
when the party against who it is now offered had "an opportunity and similar motive to develop it
by direct, cross-, or redirect examination"). Dr. Kaplan was a pediatric medical doctor with an
emphasis on child sexual abuse. Dr. Kaplan co-authored an article with Dr. Joyce Adams, one of
Petitioners' new medical experts, entitled Guidelinesfor Medical Care ofChildren Who May Have
Been Sexually Abused.(Doc. 18-3, AfSdavit of Joyce A. Adams, M.D. at p. 25.) A siunmary of
Dr. Kaplan's trial testimony was presented hy the government in its brief hi opposition to the
motion for new trial;
During Jessica Rouse's medical exam by Dr. Kaplan,she stated "Uncle Jesse hurt me"and
when asked where, pointed to her left labia. Rouse, 329 F. Supp. 2d at 1090. When Jessica
Rouse's anal opening was examined, she stated that Uncle Jess has used his hand in her
butt. Id. She was four and a half years old at the time. Id. Similarly, when Dr. Kaplan
examined Lucritia Rouse,she told him to "check my peach" because it hurt. Id. During Dr.
Kaplan's examination of then five year old Rosemary Rouse, she volunteered
spontaneously that "I have a bruise where my uncle put his private spot" and volunteered
that her uncle Garfield did this at her Grandma's house.Id. Rosemary also volunteered that
her uncle put his private "in my butt." Id. When Dr. Kaplan examined Thrista Rouse, who
was seven years old, she told Dr. Kaplan that "Uncle Jesse hurt me there" in reference to
her inner labia majora. Id. These reports were made before the victims were interviewed
by the FBI and before they began counseling sessions. Id. at 1091.
Doc. 30 at 27-28.
Gimenez involved a petitioner convicted of murder based, in part, on the theory that the
victim exhibited the triad of symptoms (subdural hematoma, brain swelling and retinal
hemorrhage)once thought to definitively indicate a shaken baby(often referred to as "shaken bahy
syndrome," or "SBS"). 821 F.3d at 1143. The habeas petition in Gimenez was successive, and,
therefore, subject to 28 U.S.C. § 2244(b). That led to the application of the clear and convincing
evidence standard for a successive petition pursuant to 28 U.S.C. § 2244(b). See id. at 1145.
The Ninth Circuit hi Gimenez recognized the petitioner's claim as a "gateway" rather than
"freestanding" actual hmocence claim based on a violation ofdue process. Id. at 1145 ("[HJabeas
petitioners can allege a constitutional violation from the introduction of flawed expert testimony
at trial ifthey show that the introduction ofthis evidence 'undermined the fundamental fairness of
the entire trial.' "). The Court denied the petitioner relief, reasoning:
22
In any case, Gimenez can't prove by "clear and convincing evidence" that "no
reasonable factfinder" would have found him guilty but for the introduction of purportedly
flawed SBS testimony. 28 U.S.C. § 2244(b)(2)(B)(ii); see Gage v. Chappell, 793 F.Bd
1159, 1168 (9th Cir. 2015). That inquiry requires courts to examine the alleged
constitutional violation "in light ofthe evidence as a whole" at a petitioner's trial. 28 U.S.C.
§ 2244(b)(2)(B)(ii); Jones v. Ryan, 733 F.3d 825, 845 (9th Cir. 2013). A juror could still
have concluded that Priscilla was shaken to death based on her numerous suspicious
injuries, Gimenez's inconsistent statements about Priscilla's torn ftenulum and his
admitted violent behavior. Even assuming the prosecution's experts couldn't testify that
the triad alone establishes SBS, the evidence Gimenez presents isn't enough to show by
clear and conviacing evidence that "no reasonable factfmder" would have found him
guilty. Jones, 733 F.3d at 845; Gage,793 F.3d at 1168.
Gimenez, 821 F.3d at 1145.
In the present case. Petitioners' new expert opinions criticizing Dr. Ferrell's opinion that
his physical findings indicated the victims were sexually abused is not evidence that exonerates
Petitioners. Dr. Ferrell's testimony was compelling, but the government's case did not depend
solely on Dr. Ferrell's opinions. And even though more modem sexual abuse science led
Petitioners' experts to a different conclusion, there was ample other evidence of Petitioners' guilt
presented at trial. That sexual abuse occurred was independently corroborated by fact witness
testimony. Had the jury heard the conflicting testimony of Dr. Ophoven and Dr. Adams, or had
the jury not heard the testimony about Dr. Ferrell's physical fmdings, a reasonable juror viewing
the record as a whole could still find Petitioners guilty. It cannot be said that Petitioners' newly
proposed experts' opinions would more likely than not result in their acquittal if given a new trial.
Petitioners have failed to show that they meet the Schlup gateway standard because this
Court cannot conclude that no reasonable juror would vote to convict Petitioners. Had the jury
heard all the conflicting testimony, a reasonable juror viewing the record as a whole could still
convict Petitioners. Schlup, 513 U.S. at 327. It follows that Petitioners also fail to meet the
heightened standard ofproving actual innocence on a fireestanding innocence claim. Thus,no relief
is available on the irmocence claim.
Combination of Factors
To the extent Petitioners' motion can be considered a legitimate Rule 60(b)(6) motion
rather than a successive § 2255,the Court will address Petitioners' argument that Pena-Rodriguez
and the new evidence ofracial bias by the jury, combined with the victim recantations and the new
23
medical evidence that Dr. Ferrell's physical findings might be normal rather than signs of sexual
assault, amount to extraordinary circumstances justifying Rule 60(b)(6) relief.
In considering a Rule 60(b)(6) motion, a court must examine all the equitable
circumstances in the case. See Harley v. Zoesch, 413 F.3d 866, 870(8th Cir. 2005)("Rule 60(b)
is a motion grounded in equity and exists to prevent the judgment from becoming a vehicle of
injustice.")(internal quotation and citation omitted). The Court has carefully considered all ofthe
factors set forth by Petitioners, including those listed by Petitioners ia their Pre-Hearing Brief,
Doc. 33 at 2-4. Most of the items listed in the Pre-Heariag Brief iavolve the recantations and the
ne-w medical expert opinions as compared to the opioions of Dr. Kaplan and Dr. Ferrell.
The Court concludes that if the Petitioners' new medical and recantation evidence would
have been presented at trial it would have established, at most, conflicting testimony. The jury
would have been required to weigh the "witnesses' credibility just as it did "with the witnesses who
testified at the trial, to determine whether reasonable doubt existed as to Petitioners' guilt. The
Court does not conclude that no reasonable juror could have foimd Petitioners guilty even "with the
combination of new recantation and medical evidence.
The Court has already discussed why Pena-Rodriguez and Vema Boyd's affidavit are not
extraordinary circumstances, and the Court concludes that those circumstances do not become
extraordinary when they are considered together "with the new recantation and medical evidence.
The Court also notes that the interest in finality is significant in this case where Petitioners
were convicted, and their criminal judgments were entered, almost 25 years ago in 1995. See CR
94-40015, Docs. 340 and 347. Jesse Rouse's first § 2255 was denied as untimely on September
20, 1999. See CIV 98-4213, Doc. 17. Desmond Rouse's first § 2255 was denied as untimely on
March 28, 2006. See CIV 06-4008, Doc. 8. The interest in finality ofjudgments is not the most
important reason to deny relief, butthe length oftime that has passed since Petitioners' convictions
weighs against granting relief, particularly when the Court believes thatjustice has been served in
this case.
For all ofthese reasons the equitable considerations in this case do not favor Rule 60(b)(6)
relief.
24
Adverse Inference
Petitioners filed a motion to compel the deposition of Dr. Robert Ferrell.(Doc. 38.) The
government objected.(Doc. 41.) This Court denied the motion to compel Dr. FerrelTs deposition
and instead ordered the government to provide an affidavit from Dr. Ferrell.(Doc. 43.) The Court
explained that, with the credible proposed testimony of Dr. Adams and Dr. Ophoven,the current
opinion of Dr. Ferrell regarding his findings of sexual abuse was necessary to assist the Court in
ruling on the Petitioners' motion for new trial.
The government submitted a declaration from Assistant U.S. Attomey Delia Druley in
which she described unsuccessful efforts to obtain an affidavit from Dr. Ferrell. (Doc. 46.) No
affidavit has been submitted. Petitioners moved for the Court to draw an adverse inference in their
favor and against the government that; 1) Dr. Ferrell has abandoned his testimony at the criminal
trial that, in examining the victims in this case, he observed physical evidence of sexual assault,
and 2)that if Dr. Ferrell testified today, he would not testify that his examiaations of the victims
demonstrated evidence of sexual assault. (Doc. 50.) The government objects to an adverse
inference.(Doc. 54.)
The Court denies Petitioners' request for the adverse inference. There are numerous
possible reasons that Dr. Ferrell has not agreed to provide an affidavit. It is too great a leap to
conclude that, because Dr. Ferrell did not provide an affidavit indicating what his opinions are
today, he must have abandoned his testimony at the trial over 25 years ago that he observed
evidence of sexual assault during his examiaations ofthe victims.
Evidentiary Hearing
Petitioners have requested a hearing in order to present their new evidenee of innocence.
"The district court has wide discretion" to decide requests for an evidentiary hearing. United States
V. Preciado, 336 F.3d 739, 747(8th Cir. 2003)."Absent exceptional circumstances, a motion for
new trial based on newly discovered evidence may be decided on affidavits without a hearing."
United States v. Dogskin, 265 F.3d 682, 687 (8th Cir. 2001). "The necessity for a hearing is
lessened in cases involving challenged testimony where the trialjudge has had the opportunity to
observe the demeanor and weigh the credibility ofthe witness at trial." United States v. Begnaud,
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848 F.2d 111, 113 (8tli Cir. 1988); see also Preciado, 336 F.3d at 747 (stating that "[a] district
court is in the best position to weigh the evidence and evaluate witness credibility").
This Court conducted Petitioners' trial and all other proceedings in this case. It is well
versed in the facts of the case and had a first-hand opportunity to observe the witnesses and
evidence at trial and at the hearing in 2001. In addition to seeing each witness and hearing each
witness's testimony,the Court was able to observe their body language and demeanor. At the trial,
three of the young victims were imable to testify in open court and the Court, after questioning,
determined that the three victims should be permitted to testify by closed circuit television after
making the findings required pursuant to 18 U.S.C. § 3509(b)(l)(B)(i). See Rouse, 111 F.3d at
568. Specifically, this Court found that the three victims were unable to testify in open court in the
presence of Petitioners "because of fear." See id. at 568-69. See also CR 94-40015, Docs. 215
and 229, Transcripts of Victims' In-Chambers Testimony.
This Court has carefully considered and assessed the impact of the recantations and new
experts' opinions on the strength ofthe government's case against Petitioners. See Preciado, 336
F.3d at 747; Begnaud, 848 F.2d at 113. Even considering the victim recantations and the new
experts' opinions,this Court does not find that the requirements for an actual innocence claim have
been satisfied. No exceptional circumstances warrantuig an evidentiary hearing on the motion for
new trial have been shown.
CONCLUSION
The Court concludes that Pena-Rodriguez does not require reopening of Petitioners' jury
race bias claim. The Court also finds that Petitioners have failed to demonstrate actual innocence
for purposes of a gateway claim under Schlup. It necessarily follows that if Petitioners have not
met this lower standard, they have not provided the "more convincing proof which would be
required to meet the threshold for a fi:eestanding actual innocence claim—even assuming such a
claim is cognizable as an avenue for rehef.Dansby,766 F.3d at 816. Finally,the Court determines
that Petitioners have not shown extraordinary circumstances to justify relief under Rule 60(b)(6).
Accordingly, Petitioners' request for relief under Rule 60(b)(6) will be denied and the
motion will be dismissed for failure to obtain authorization fi-om the Eighth Circuit to file a second
or successive motion under § 2255. Boyd, 304 F.3d at 814 (holding that if the district court
26
determines Rule 60(b) motion is actually a second or successive habeas petition, it should dismiss
the motion for failure to obtain authorization from the Court ofAppeals or,in its disoretion,transfer
the purported Rule 60(b) motion to the Court of Appeals).
CERTIFICATE OF APPEALABILITY
The Court finds that a reasonable jurist could conclude that titds Court erred in finding tiiat
Petitioners' Rule 60(b)(6) motion is in effect a second or successive § 2255 motion and dismissing
tiie motion. Accordingly, after careful review and consideration, the Court grants a Certificate of
Appealability.
IT IS ORDERED:
1. That Petitioners' motion for a new trial under Rule 60(b)(6), Doc. 13,is actually a second
or successive §2255 motion that must be dismissed for failure to obtain authorization
from the Eighth Circuit;
2. That a Certificate of Appealability is granted on the issue whether Petitioners' Rule
60(b)(6) motion is in effect a second or successive § 2255 motion;
3. That Petitioners' motion for an adverse inference, Doc. 50, is denied.
Dated this 18th day of March, 2020.
BY THE COURT:
.u.
iOAlMUn.
rence L. Piersol
ATTEST:
United States District Judge
MATTHEW W.THELEN,CLERK
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