Horn v. Miller-Stout

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 34 Objections to Report and Recommendation filed by John Wesley Horn. (TG; cc mailed to petitioner)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHN WESLEY HORN,

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Petitioner,
v.

Case No. C11-5055BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

MAGGIE MILLER-STOUT,

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Respondent.

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This matter comes before the Court on the Report and Recommendation (“R&R”) of

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the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 33), and Petitioner

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John Wesley Horn’s (“Horn”) objections to the R&R (Dkt. 34).

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On November 9, 2011, Judge Creatura issued the R&R recommending that the Court

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find that Horn’s petition is time-barred, find that Horn does not qualify for an actual

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innocence exception to the time-bar, and dismiss the petition. Dkt. 33. On November 23,

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2011, Horn filed objections to the R&R and argued that Judge Creatura erroneously relied

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on the theory of accomplice liability to find that Horn had failed to meet his burden on the

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issue of actual innocence. Dkt. 34.

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The Petitioner bears the burden to produce sufficient proof of actual innocence to

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bring him within the narrow class of cases implicating a fundamental miscarriage of justice.

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Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011). The Petitioner must submit new, reliable

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evidence that undercuts the reliability of the proof of guilt and is so strong that a court

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cannot have confidence in the outcome of the trial unless the court is also satisfied that the

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ORDER – 1

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trial was free of non-harmless constitutional error. Id. at 937–38 (citing Schlup v. Delo, 513

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U.S. 298, 314–16 (1995)). The evidence may be exculpatory scientific evidence,

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trustworthy eyewitness accounts, or critical physical evidence. A petitioner must show that

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it is more likely than not that no reasonable juror would have convicted him in light of the

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new evidence. The Court should consider all new and old evidence and make a probabilistic

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determination of what reasonable, properly instructed jurors would do. Lee, 653 F.3d at

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938.

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In this case, Horn has failed to meet his burden. Horn admits that he repeatedly
stabbed the victim. During trial, the medical examiner testified that the cause of death was

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multiple stab wounds with strangulation as a contributing factor and the mechanisms of

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death to be loss of blood, impaired breathing and impaired circulation. Horn’s new evidence

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of actual innocence, the declaration of a co-defendant stating that the other co-defendant

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suffocated the victim to death, does not undercut the reliability of the proof of Horn’s guilt.

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Moreover, Horn has failed to show that it is more likely than not that no reasonable juror

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would have convicted him of premeditated murder in light of the co-defendant’s declaration.

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The Court having considered the R&R, Horn’s objections, and the remaining record,
does hereby find and order as follows:
(1)

The R&R is ADOPTED to the extent that Horn has failed to meet his burden
of showing actual innocence;

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(2)

A Certificate of Appealability is DENIED;

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(3)

The petition for writ of habeas corpus is DENIED; and

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(4)

This action is DISMISSED.

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DATED this 26th day of January, 2012.

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BENJAMIN H. SETTLE
United States District Judge

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A

ORDER – 2