How the AEDPA helps keep innocent people in prison...

For folks who really still think the system of justice works for the innoenct: read how in Kinsel v Cain, the 5th Circuit Court of Appeals laments that it can't let his man go, despite clear evidence that he was wrongfully convicted. And they identify the law that's at the heart of so many problems - the Anti-Terrorism and Effective Death Penalty Act of 1996 (thanks Clinton, you jerk). 

So we all know this man is innocent and that the state, citing its rules of order, plans to let him die in prison anyway. That's sick - and unacceptable that it's being done in the name of our public safety. This is a system which serves itself, not justice or the People. It's played by lawyers and judges like it's a game, only they aren't the ones who ultimately pay if they lose...witness the execution of Troy Davis, for example.

Screw the AEDPA and please hit this petition to free Courtney Bisbee,
who has been in prison for 6 years already on maliciously fabricated charges...

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JOHN KINSEL v. BURL CAIN WARDEN LOUISIANA STATE PENITENTIARY

JOHN KINSEL Petitioner–Appellant Cross–Appellee v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY Respondent–Appellee Cross–Appellant

No. 10–30443  -- July 19, 2011
Before SMITH, WIENER, and OWEN, Circuit Judges.



Petitioner–Appellant John Kinsel's conviction in Jefferson Parish, Louisiana district court for sexually abusing A.M., the ten-year-old daughter of his girlfriend at the time, was based primarily on A.M.'s trial testimony against him.   Eight years later, as an adult, A.M. voluntarily approached the parish district attorney's office to recant her testimony under oath.   Kinsel then filed a state postconviction petition, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.   After holding an evidentiary hearing at which A.M. testified, the Louisiana trial court ordered a new trial.   The Louisiana appellate court reversed, however, holding that the trial court abused its discretion and dismissing Kinsel's petition for failure to establish a constitutional violation at trial.   The Louisiana Supreme Court affirmed without opinion.   Kinsel then filed this federal habeas corpus application, which the district court dismissed.   For the reasons that follow, we affirm.

I. FACTS & PROCEEDINGS

A. Facts

On January 30, 1997, Kinsel was charged with the aggravated rape of a child—his girlfriend's daughter, A.M. The primary evidence presented against Kinsel at trial was A.M.'s testimony.   The only other family member who corroborated A.M.'s testimony was Jason Medlin, A.M.'s older brother, who was fifteen years old at the time.   Jason testified that on one occasion Kinsel had told him and his other sister to take a nap while Kinsel went into a room with A.M. Jason testified that he heard “kissing sounds” coming from the room and that A.M. became angry when he asked her about it afterwards.

Dr. Scott Benton, an expert in pediatric forensic examinations, was also proffered by the prosecution.   He had examined A.M. on October 9, 1996 and observed “abnormalities” in the area around the hymen, which were consistent with but not indicative of sexual abuse.   Dr. Benton's report also indicated that A.M. did not have any vaginal discharge or scars or bruises in the vaginal or anal areas.   It also recorded A.M.'s telling Dr. Benton that Kinsel had sexually abused her “every morning” while she lived at her grandfather's house, which was later controverted as an impossibility by the testimony of A.M.'s mother, grandfather, and Kinsel.

The defense presented numerous witnesses that undermined A.M.'s testimony.   Adrienne Medlin, A.M.'s mother and Kinsel's girlfriend, testified that she never suspected Kinsel of any sort of child sexual abuse and therefore did not call the police when A.M. first told her of the alleged abuse.   Adrienne claimed that she never saw Kinsel act inappropriately with A.M. and that, to the contrary, he acted “like a father” to and was “protective” of all of her children, namely A.M., Jason, and her other daughter from a previous marriage, and her son with Kinsel.   Adrienne also testified that, although A.M. claimed that Kinsel sexually abused her every morning at Adrienne's father's house, Kinsel never spent one single night with the family when they were living there.   Furthermore, Adrienne noted that when A.M. was two years old, she had placed a crayon in her vagina, which could have caused the slight physical abnormalities noted by Dr. Benton.   She explained that she had always suspected her daughter of lying about the sexual abuse because (1) A.M.'s friend had previously falsely accused someone of similar acts, and (2) A.M. had stated that Kinsel had black pubic hair when Adrienne knew that he had blonde pubic hair.

Earl Roberts, A.M.'s grandfather, also testified for the defense, corroborating Adrienne's testimony that Kinsel never stayed at his house when A.M. and her family lived with him.   He testified that he never saw Kinsel act in a sexually inappropriate manner.   Stacey Plaisance, A.M.'s aunt and Adrienne's sister, testified that “[A.M.] just hated [Kinsel] because he made them pick up their mess and mind their mother.  [A.M.'s] always been kind of unruly, smart mouth.   She just never had no discipline until [Kinsel] come around.   She just resented it, I guess.”   And Georgette Evans, a friend of A.M., testified that once when she was alone with A.M. she asked why A.M. had said “all that stuff” about Kinsel, and “[A.M.] said ‘Because whenever he met my mom, I didn't think my mom was happy so I said all that stuff ‘cause I never liked him and I wanted my mom to be happy and I didn't think she was happy.’ ”

Finally, Kinsel took the stand and unequivocally denied all of A.M.'s allegations of sexual abuse, threats, and physical violence.   He testified about the hours he worked and about the houses where he stayed with A.M.'s family, implying that it was physically impossible for him to have committed the alleged acts without any other adult being in the house and knowing about it.

The jury found Kinsel guilty as charged of aggravated rape, and the trial judge sentenced him to life imprisonment at hard labor without parole.   The Louisiana Fifth Circuit Court of Appeal affirmed Kinsel's conviction,¹ and the Louisiana Supreme Court denied relief without opinion on March 28, 2002.²  On March 28, 2003, Kinsel filed a state postconviction petition in the Louisiana trial court, which was denied.   The Louisiana Fifth Circuit affirmed, and the Louisiana Supreme Court denied Kinsel's appeal without opinion.³  Kinsel then filed a federal habeas corpus petition, which was dismissed with prejudice by the district court on January 5, 2005.   His certificate of appealability was denied on March 15, 2006.⁴
 
In May 2005, when A.M. was eighteen years old and living in Colorado, she contacted Kinsel's attorney's office.   Kinsel's attorney told A.M. that she could not speak with her because she represented Kinsel but advised A.M. to contact the Jefferson Parish (Louisiana) district attorney's office.   A.M. subsequently moved back from Colorado to New Orleans, and, on October 20, 2005, she made a sworn statement to the district attorney recanting her accusations against Kinsel.

B. Proceedings

On March 14, 2006, Kinsel, acting pro se, filed his second state postconviction petition.   His counsel filed a revised petition on Kinsel's behalf on June 1, 2006, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.

The Louisiana trial court held an evidentiary hearing on October 4, 2006, at which A.M. and others testified.   A.M. affirmed her recantation under oath but made misleading statements on cross-examination regarding her recollection and her motivation to make perjured testimony in the first place.   The state trial judge concluded:

I'm not sure I believe [A.M.] about whether it happened or not, but I don't know at which time I'm supposed to believe her.   So, based on that ․ and also based on reviewing the rest of the evidence and the testimony, I find that in no way can one convict absent her testimony.   And, therefore, I have nothing else to hang the conviction on than her testimony.

Based on this reasoning, the trial judge granted Kinsel a new trial.

The State appealed the trial court's decision to the Louisiana Fifth Circuit Court of Appeal.   With one judge dissenting, the panel majority held that the district court had abused its discretion in granting Kinsel a new trial and therefore reversed the district court's order.⁵  The Louisiana Supreme Court denied Kinsel's appeal without reasons on November 9, 2007.⁶
 
On April 2, 2008, Kinsel filed his second federal habeas corpus application.   The district court transferred the petition under 28 U.S.C. § 1631 to a previous panel of this court to determine whether the successive habeas application should be allowed.   We “conclude[d] Kinsel's claim of witness recantation at least warrant[ed] a fuller exploration by the district court” but “note[d] that the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.” ⁷
 
Following our authorization, a magistrate judge first issued a report and recommended that the district judge dismiss the petition as untimely because more than one year had passed between the time that A.M. called Kinsel's attorney and Kinsel filed his federal habeas petition (notwithstanding the time that was tolled for his state postconviction proceedings).   The district court disagreed, however, finding that the petition was timely because the statute of limitations had not begun to run until A.M. actually recanted under oath.   The district court nevertheless dismissed Kinsel's petition, ruling that the Louisiana Fifth Circuit reasonably applied established federal law and reasonably determined the facts in dismissing Kinsel's postconviction petition.   The district court did not expressly consider whether Kinsel had satisfied the standard for filing a successive federal habeas application.

Kinsel timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

“On appeal from the denial of a § 2254 petition, this court reviews a district court's findings of fact for clear error, and it reviews a district court's conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” ⁸  Because Kinsel filed his federal habeas application after 1996, the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to his claims.⁹  Pursuant to the AEDPA, a federal court may grant habeas corpus relief to Kinsel only if the state court's adjudication of his claims on the merits:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;  or

(2)  resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.10

The Supreme Court has recently made a point to explain that this standard “is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” ¹¹  Specifically, “for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous.   The state court's application must have been ‘objectively unreasonable.’ ” ¹²  In addition, the AEDPA instructs that “a determination of a factual issue made by a State court shall be presumed to be correct.” ¹³
 
B. Kinsel's Claim Is Barred by the AEDPA's Bar on Successive Petitions

The AEDPA bars state prisoners from filing second or successive federal habeas applications with one relevant exception:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless ․ the factual predicate for the claim could not have been discovered previously through the exercise of due diligence;  and [ ] the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.14

This actual innocence exception thus allows a petitioner to overcome the AEDPA's bar on successive applications and pass through the “gateway” to argue the merits of his habeas claims if he establishes by clear and convincing evidence that the outcome of the trial would have been different but for constitutional error.   In the instant case, we granted Kinsel leave to file this successive federal application, noting that “the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.”   The district court, however, failed to analyze whether Kinsel's claims satisfy the successive standard and instead dismissed the claims on the merits.   This was an error,¹⁵ and we must first determine on appeal whether Kinsel has satisfied the AEDPA standard.

Kinsel asserts in his application that (1) he is “actually innocent of the crime,” i.e., he did not sexually abuse A.M., as supported by her newly discovered recantation, and (2) his rights “to a fair trial, due process of law, and his right to confront his accusers, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution” were violated.   Although the newly discovered evidence of A.M.'s recantation does call her trial testimony into question, the Louisiana trial judge concluded, not that Kinsel was “actually innocent” and should therefore be exonerated because no reasonable juror could convict him in light of the recantation, but rather that Kinsel was entitled to a new trial because, if reasonable jurors should believe the recantation, none could convict “absent her testimony.”   In the end, the trial judge stated that he did not know when to believe A.M.—at trial or at the postconviction evidentiary hearing—and therefore determined that Kinsel should have a new trial.   On appeal, the Louisiana Fifth Circuit likewise found A.M.'s recantation to be “unreliable and inconsistent.”

Under the AEDPA, we must presume the correctness of the state court's factual finding that A.M.'s recantation lacked credibility,¹⁶ recognizing that credibility determinations in particular are entitled to a strong presumption of correctness.¹⁷  Although Kinsel could have rebutted this presumption,¹⁸ he has not succeeded in doing so.¹⁹  We conclude, therefore, that Kinsel's reliance on A.M.'s recantation alone does not satisfy his burden under § 2244(b)(2)(B)(ii).²⁰
 
In addition, we agree with the district court that the Louisiana Fifth Circuit reasonably determined that Kinsel has not established that errors at trial violated his rights under the Due Process Clause, the Confrontation Clause, or the Sixth Amendment.

Initially, Kinsel asserted that the state prosecutor knew that A.M. was going to perjure her testimony before she testified at trial.   If this allegation had proved to be true, the State would have violated Kinsel's due process rights, as articulated by clearly established federal law.²¹  But, the Louisiana Fifth Circuit here determined that “the record as a whole does not show the prosecutors either coerced or knowingly used false testimony from the victim.” ²²  The court based this finding on the prosecutors' testimony that A.M. never informed them that she was lying, and on A.M.'s own testimony that she did not tell the prosecutors that she was lying, only that she did not want to testify on the morning of trial:

Q. You never told [the district attorney] that you were lying about this defendant Mr. Kinsel representing (sic) you.   What you told him was, I don't want to do any—I don't want to do anymore.   I'm tired, I'm scared, I want to go home?   Is that right?

A. Yes—yes.

The Louisiana Fifth Circuit's factual finding that the prosecutors did not know that A.M. was lying,²³ therefore, is reasonable if for no reason other than by A.M.'s own testimony.

The Supreme Court has held that the Due Process Clause is violated when the government knowingly uses perjured testimony to obtain a conviction.²⁴  Although some circuits recognize a due process violation when perjured testimony is provided by a government witness even without the government's knowledge,²⁵ we are limited by the AEDPA to applying only established Supreme Court precedent in our review of a state court's reasonableness.²⁶  Consequently, given the Louisiana Fifth Circuit's reasonable factual finding that the prosecutors did not know that A.M. was lying at trial, we cannot say that the state court unreasonably applied established federal law in determining that Kinsel's due process rights were thus not violated.

Kinsel never explains how his Confrontation Clause rights were violated at trial, as his attorney did have an opportunity to cross-examine A.M. Neither does Kinsel provide any analysis of how his Sixth Amendment right to a fair trial was violated by A.M.'s perjured testimony.   Although the perjury may have made the trial “unfair,” the Supreme Court has never held that perjured testimony alone violates a defendant's Sixth Amendment right to a fair trial.

In sum, Kinsel has not established by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense.   In fact, Kinsel ultimately does not allege a constitutional error at all given that the prosecutors did not knowingly present false testimony at his trial.   His successive federal application is therefore barred by the AEDPA (and would fail on the merits even if it were not barred).

C. Kinsel's Due Process Claim

Beyond our limited review of his habeas claims under the AEDPA and apart from his assertion of actual innocence, Kinsel contends that the Louisiana appellate court violated his due process rights during his state postconviction proceedings.   He asserts that the Louisiana Fifth Circuit deprived him of due process by refusing to give deference to the trial court's credibility determinations and by denying him the opportunity to present A.M.'s recantation to a jury.   The dissenting Louisiana Fifth Circuit judge aptly summed up the constitutional error allegedly made by the majority:

In the instant case, the trial judge found that the recanted testimony would materially affect the jury verdict.   The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful.   In ruling the trial judge stated, “I'm not sure I believe her about whether it happened or not ․” concluding, “I find that in no way can one convict absent her testimony.”

Given the vast discretion afforded the trial court in evaluating evidence and ascertaining whether a new trial is warranted, I find in this case, where the victim of the crime, upon whose testimony the guilty verdict rests, recants that testimony, the trial court has a valid legal basis to grant a new trial.27

Undeniably, the trial court (along with the dissenting judge) and the appellate court hold Kinsel's postconviction petition to different standards:  The trial court granted Kinsel a new trial based on its determination that A.M.'s recantation undermined her trial testimony without which no reasonable juror could have convicted Kinsel.   The appellate court, in contrast, focused on the fact that Kinsel did not “establish[ ] a due process violation so as to make his post-conviction claim cognizable under [the Louisiana ]


The differing approaches could stem from the fact that the trial court and the dissenting appellate judge treat Kinsel's postconviction petition as a motion for a new trial,²⁸ for which Louisiana law only requires the movant to show that “if the evidence had been introduced at the trial[,] it would probably have changed the verdict or judgment of guilty.” ²⁹  If this standard were applicable to Kinsel's postconviction petition requesting a new trial, then the Louisiana Fifth Circuit might well have erred in reversing the trial court's decision.³⁰  But, if the Louisiana Fifth Circuit were correct that Kinsel must first show that his “conviction was obtained in violation of the constitution of the United States or the state of Louisiana” ³¹ —regardless of his request for a new trial in the alternative to exoneration—then that court did not err in concluding that Kinsel failed to establish that a constitutional violation occurred at his trial.

The bottom line is that the proper court to review whether the Louisiana Fifth Circuit deprived Kinsel of due process during his postconviction proceedings was either the Louisiana Supreme Court, which dismissed Kinsel's direct appeal of the decision, or the U.S. Supreme Court, to which Kinsel never petitioned for certiorari review of his state postconviction proceedings.   We, as a federal appeals court entertaining a federal habeas corpus application, are without jurisdiction to review the constitutionality of Kinsel's state postconviction proceedings.   Indeed, we are barred from doing so by our “no state habeas infirmities” rule.³²  It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted.   But, our hands are tied by the AEDPA, preventing our review of Kinsel's attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.

CONCLUSION
For the foregoing reasons, the district court's denial of federal habeas relief to Kinsel is AFFIRMED.³³
 
FOOTNOTES

1.  FN1. State v. Kinsel, 783 So.2d 532 (La.App.2001).
2.  FN2. State v. Kinsel, 812 So.2d 641 (La.2002).
3.  FN3. State v. Kinsel, 870 So.2d 267 (La.2004).
4.  FN4. Kinsel v. Cain, No. 05–30170, Order (Mar. 16, 2007).
5.  FN5. State v. Kinsel, 06–KH–858 (La.App.2006).
6.  FN6. State v. Kinsel, 967 So.2d 499 (La.2007).
7.  FN7.  (internal quotation marks omitted) (citing Reyes–Requena v. United States, 243 F.3d 893, 899 (5th Cir.2001);  28 U.S.C. § 2244(b)(4)).
8.  FN8. Robertson v. Cain, 324 F.3d 297, 301 (5th Cir.2003) (emphasis in original and citation omitted).
9.  FN9. Lindh v. Murphy, 521 U.S. 320, 324–26 (1997).
10.  FN10. 28 U.S.C. § 2254(d).
11.  FN11. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
12.  FN12. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citations omitted).
13.  FN13. 28 U.S.C. § 2254(e)(1).
14.  FN14.  Id. § 2244(b)(2)(B)(ii).   The AEDPA provides another exception if the petitioner can show “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,” id. § 2244(b)(2)(B)(I), but this exception is inapplicable here.
15.  FN15.  See Brown v. Lensing, 171 F.3d 1031, 1032 (5th Cir.1999) (“Our authorization for [petitioner] to file a successive petition is not dispositive of the critical question․  [T]he trial court was obliged by the statute to dismiss [petitioner's] claim if it did not meet the requirements of § 2244.”).   See also, e.g., Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1357 (11th Cir.2007) (“[T]he district court not only can, but must, determine for itself whether th[e] requirements [of § 2244(b)(2) ] are met.”);  Bennett v. United States, 119 F.3d 468, 470 (7th Cir.1997) (“[T]he district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.”).
16.  FN16. Id. § 2254(e)(1).
17.  FN17.  See Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir.2005) (“A trial court's credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are virtually unreviewable by the federal courts.” (internal quotation marks and citations omitted)).
18.  FN18.  See Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”).
19.  FN19.  On this point we think it important to clarify that, although we do not consider state court credibility determinations when determining whether a petitioner has made a prima facie showing of his entitlement to bring a successive petition, In re Wilson, 442 F.3d 872, 878 (5th Cir.2006), such determinations may be relevant when, as here, we are tasked with determining whether a petitioner has actually satisfied § 2244(b)(2)(B)'s requirements.
20.  FN20.  To the extent that Kinsel asserts a freestanding actual innocence claim, i.e., that his continued imprisonment itself violates the Eighth Amendment and warrants habeas relief, see Herrera v. Collins, 506 U.S. 390, 417 (1993), we have repeatedly stated that such claims are not cognizable in the Fifth Circuit.  Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir.2003) (collecting cases).   Moreover, even if we were to consider the merits of that claim, because “the threshold showing for such an assumed right would necessarily be extraordinarily high,” Herrera, 506 U.S. at 417, Kinsel would not be able to meet it for the same reasons he cannot meet the lesser AEDPA standard, i.e., recantations are suspect and A.M. is not a credible witness.   See House v. Bell, 547 U.S. 518, 554–55 (2006).
21.  FN21.  See, e.g., Durley v. Mayo, 351 U.S. 277, 290–91 (1956) (“It is well settled that to obtain a conviction by the use of testimony known by the prosecution to be perjured offends due process.”).
22.  FN22. Kinsel, 06–KH–858, at 5.
23.  FN23. The Louisiana trial court did not make a factual determination on this issue.
24.  FN24.  See Napue v. Illinois, 360 U.S. 264, 269 (1959).   See also Creel v. Johnson, 162 F.3d 385, 391 (5th Cir.1998) (“A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected.   The defendant must show that (1) the testimony was false, (2) the state knew it was false, and (3) the testimony was material.” (internal citations omitted)).
25.  FN25.  See Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir.2003) (“[W]hen false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” (internal quotation marks omitted)).   But see United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980) (“[F]or perjury by a witness to constitute grounds for relief appellant would have to show that the Government knowingly used the perjured testimony.”).
26.  FN26.  See Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir.1999):A habeas petitioner must support his claim with a Supreme Court decision that clearly establishes the proposition essential to his position.   The clearly established Supreme Court precedent demands proof that the prosecution made knowing use of perjured testimony.  [Petitioner] has admitted that, in this case, the prosecution did not;  as a consequence, he cannot make a substantial showing of the denial of his right to due process․
27.  FN27. Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (emphasis added).
28.  FN28.  Both the trial court and the appellate dissent refer to Kinsel's petition as a motion for a new trial.   See State R. at 167 (“I feel I have no other decision to make other than to grant your motion for a new trial.”);  Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (“The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful.”).
29.  FN29. La.Code Crim. Proc. Ann. art 851(3).
30.  FN30.  See State v. Prudholm, 446 So.2d 729, 735 (La.1984) (“The application of [motion for a new trial] precepts to newly discovered evidence by the trial judge, although a question of law, is entitled to great weight, and his discretion should not be disturbed on review if a reasonable man could differ as to the propriety of the trial court's action.” (emphasis added)).
31.  FN31. La.Code Crim. Proc. Ann. art 930.3(1).
32.  FN32.  See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.1999) ( “[The petitioner] argues that he was denied due process in his state habeas proceeding․  Our circuit precedent makes clear that [the petitioner's] claim fails because infirmities in state habeas proceedings do not constitute grounds for relief in federal court.” (internal quotation marks and citations omitted));  Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995):[E]rrors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction.   An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.(internal quotation marks and citation omitted).
33.  FN33.  Because we determine that Kinsel's successive habeas application is barred by the AEDPA, we need not reach the issue whether his application was timely.

A million hearts just shattered: the execution of Troy Davis.

Solidarity Vigil for Troy
Arizona State University Hayden Lawn
September 21. 2011

Troy Davis was murdered tonight by the state of Georgia and the US Supreme Court,

and a million hearts were shattered.

Blessings to his family, who lost the most. We will not give up this fight.

------------------

The Death of Troy Davis

Atlanta Journal Constitution

September 21, 2011

By Andrew Cohen

The Georgia execution, carried out amid so many reasonable doubts, marks a watershed in America's grim experiment with capital punishment

In a perfect world, the execution of Troy Davis Wednesday tonight in Georgia would herald a new era in America's grim history with the death penalty. It would shake the criminal justice system out of its self-satisfied torpor and force government and the governed both to face the ugly truth about capital punishment in the United States in the twenty-first century. It would propel this question to the forefront both of the nation's political debate and the Supreme Court's docket: How many exceptions to the rule must we allow or tolerate, how many legitimate questions must linger beyond the death chamber, before we either fix the system or end the experiment?

When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed. Once our confidence in that credibility is shattered, as it should be now that Davis is gone, all that's left of the death penalty is state-sponsored retribution and the hangman's noose.

In a perfect world, the haunting execution of Troy Davis would spawn vital reforms to the clemency and parole process in states like Georgia and Texas, where such proceedings routinely make a mockery of the idea of reasoned justice. It would light a fire under local prosecutors to ensure that witnesses in capital cases are not coerced by law enforcement officials. It would cause jurors to think twice about rushing to judgments. It would force a supine Congress to reevaluate its so-called "effective death penalty" statute, which neuters legitimate post-conviction appeals. And it would at long last shame state court judges to cast off the yoke of their campaign contributors, who push them to be "tough on crime" at the expense of fealty to the Bill of Rights.

Georgia says that it has given Davis more due process than any single man would have a right to expect. Up the state appellate ladder and down again. Up to the Supreme Court and back. Hearing upon hearing. Brief upon brief. At some point, Georgia says, there has to be finality in capital cases. At some point, the justice system has to accept the work of judges and juries and impose the sentence that was initially given. There is truth to all of this. And there is both rhyme and reason to many of the rules which govern appellate law and practice in capital cases. But those rules almost always place the state's interest in finality ahead of the condemned's interest in accuracy. "Enough is enough" is a great campaign slogan -- but it's hardly a worthy motto for a civilized nation's death penalty scheme.

Here's what Davis was up against, to cite just one example. Last summer, at the request of the United States Supreme Court, U.S. District Judge William Moore held an evidentiary hearing to examine the new claims, and new evidence, presented by Davis and his attorneys. Under federal law, Judge Moore reminded the litigants and the world, Davis had the nearly insurmountable post-conviction burden of establishing by "clear and convincing evidence'' that no reasonable juror would have convicted him based upon the new evidence. Applying that standard, which flips on its head the standard applied at trial, Judge Moore unsurprisingly held that Davis had failed to meet his burden.

In a perfect world, Davis would have had his new evidence evaluated under a legal standard more tuned to ensuring the reliability and accuracy of his conviction rather than upon the timing of his execution. His case wouldn't have been shoved like so many of the rest down a sterile and formalistic legal hole forced upon the federal courts by the Clinton-era Congress. And, even if it somehow were, even if the justice system failed, Davis would have had a parole board willing to acknowledge what seems so self-evident; that an uncertain death sentence harms more than just the executed.

Last week, in an op-ed which appeared in the Atlanta Journal-Constitution, William Sessions, the former federal judge and FBI director, and a man not known for willy-nilly considerations, once again called upon Georgia to halt Davis' execution. His view of the 2010 hearing is the most accurate view I've read yet and is quite chilling. Judge Sessions wrote:

What the hearing demonstrated most conclusively was that the evidence in this case -- consisting almost entirely of conflicting stories, testimonies and statements -- is inadequate to the task of convincingly establishing either Davis' guilt or his innocence. Without DNA or other forms of physical or scientific evidence that can be objectively measured and tested, it is possible that doubts about guilt in this case will never be resolved.

Alas, the world, and the world of capital punishment in America, are far from perfect. When Georgia executed Troy Davis, despite the grave doubts cast upon his capital conviction, it wasn't just thumbing its nose at the new evidence which tends to exonerate him. It wasn't just ignoring the considered judgments of experts in criminal justice and capital cases. It wasn't just winking and nodding at the protections of the "cruel and unusual" clause of the Eighth Amendment. It was instead declaring war on all of that. It was proudly proclaiming its infidelity to a fundamental premise of American law -- that the courts, and the state, will always try their best to get things right no matter how long it takes.

Now that's he gone from the face of the earth, and whether he was guilty or not, Troy Davis will leave one of two legacies. Either his story will fade with time, as have the stories of so many other men executed under a cloud of questions about their guilt, or his story will propel meaningful change in this area of the law. His many supporters, in and out of public life, hold in their hands the ability to determine that legacy. What they could not accomplish during his lifetime they may still try to accomplish in his death; a renewed appreciation for the notion that no man, neither the high nor the low, neither the rich nor the poor, neither white nor black, deserves the lamentable injustice done this day.

This article available online at:

http://www.theatlantic.com/national/archive/2011/09/the-death-of-troy-davis/245446/

Troy Davis: Stay of Execution?

UPDATE (9/21/2011 9:35pm):

Troy's stay was denied and he was executed tonight.

Rest in Freedom, Brother Troy.

The key word is "considers", though - this isn't over yet. Show them we're ready to abolish the death penalty in America...Maybe we have finally evolved.

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Troy Davis execution delayed while US supreme court considers stay

Execution of death row inmate delayed temporarily as US supreme court intervenes to consider whether to issue a stay

• Ed Pilkington tweets from outside the prison in Jackson

• Ten reasons why Troy Davis should not be executed

Ed Pilkington in Jackson, Georgia and agencies
guardian.co.uk, Wednesday 21 September 2011 19.24 EDT


The execution of Troy Davis was delayed temporarily on Wednesday night as the US supreme court considered a last-minute appeal just as he was due to be put to death by lethal injection.

As the first news came in at the Jackson prison that houses death row, a huge cheer erupted from a crowd of more than 500 protesters that had amassed on the other side of the road.

Davis's supporters kissed each other and threw placards which read "Not in my name" into the air.

But the jubilation was short-lived. Talk of a reprieve from the US supreme court quickly gave way to rumours of a stay, and finally the realisation that the court had only ordered a temporary delay as it considered the matter. The mood then grew more sombre as the waiting game that has now been going on for years with Davis resumed.

Until the delay it seemed almost certain that Davis would be executed. Earlier on Wednesday, Georgia's supreme court had rejected a last-ditch appeal by Davis's lawyers over the 1989 murder of off-duty policeman Mark MacPhail, for which Davis had been convicted despite overwhelming evidence that the conviction is unreliable.

A Butts County superior court judge had also declined to stop the execution.

Davis's attorneys had filed an appeal challenging ballistics evidence linking Davis to the crime, and eyewitness testimony identifying Davis as the killer.

The White House declined to comment on the case, saying: "It is not appropriate for the president of the United States to weigh in on specific cases."

At the maximum security prison in Jackson where the execution was scheduled to take place, busloads of Troy Davis supporters from his home town of Savannah came in to register their anger and despair at what they all agree is the planned judicial killing of an innocent man.

Edward DuBose, a leader of the Georgia branch of the NAACP, said it was not an execution, but a "murder".

The protest heard from Martina Correia, Davis's eldest sister, who delivered a statement from about 20 family members gathered around her. She was heavily critical of what she described as the defiance of the state of Georgia and its inability to admit that it had made a mistake.

She pointed out that the state's parole board had vowed in 2007 that no execution would take place if there was any doubt. "Every year there is more and more doubt yet still the state pushes for an execution," she said.

Correia, who has cancer, struggled to her feet in honour of her brother, just a few hours from his probable death. But she exhorted people not to give up.

"if you can get millions of people to stand up against this you can end the death penalty. We shouldn't have to live in a state that executes people when there's doubt."

DuBose gave an account of a 30-minute conversation he had with Davis on death row on Tuesday night. "Troy wanted me to let you know – keep the faith. The fight is bigger than him."

DuBose said that whether the execution went ahead or not, the fight would continue. He said Davis wants his case to set an example "that the death penalty in this country needs to end. They call it execution; we call it murder."

Hundreds of people gathered outside the prison, many wearing T-shirts that said: "I am Troy Davis". The activist Al Sharpton said: "What is facing execution tonight is not just the body of Troy Davis, but the spirit of due justice in the state of Georgia."

Larry Coz, the executive director of Amnesty in the US, which has led the international campaign for clemency, said demonstrations were happening outside US embassies in France, Mali, Hong Kong, Peru, Germany and the UK.

"We will not stop fighting until we live in a world where no state thinks it can kill innocent people."

After winning three delays since 2007, Davis lost an appeal for clemency this week when the Georgia pardons board denied his request, despite serious doubts about his guilt.

Some witnesses who testified against Davis at trial later recanted, and others who did not testify came forward to say another man did it. But a federal judge dismissed those accounts as "largely smoke and mirrors" after a hearing Davis was granted last year to argue for a new trial, which he did not win.

Davis refused a last meal. He planned to spend his final hours meeting with friends, family and supporters.

Davis has received support from hundreds of thousands of people, including a former FBI director, former president Jimmy Carter and Pope Benedict XVI.

Parliamentarians and government ministers from the Council of Europe, the EU's human rights watchdog, had earlier called for Davis's sentence to be commuted.

Renate Wohlwend of the council's parliamentary assembly said: "To carry out this irrevocable act now would be a terrible mistake, which could lead to a tragic injustice"...

I am Troy Davis...and I thank you all.

UPDATE (9/21/2011 9:35pm): Troy's stay was denied and he was executed tonight. Rest in Freedom, Brother Troy.

Hey all,

Troy Davis is a prisoner on Georgia's death row who they're planning to execute tomorrow, despite an overwhelming global effort to save him due to the reasonable doubt about his guilt: he couldn't even get a new trial based on the testimony that witnesses were coerced and most recanted their original statements and trial testimony (except the other suspect, of course, who implicated Troy in the brutal murder of a cop, and walked scott free).

You'd think the police all across the country would want to see the real killer off the streets and held accountable (he's laughing at them all now), but all they want is for Troy to die - which suggests they have no interest in "justice". Apparently justice takes too much work for the DA handling his case to tackle - though he'll fight to kill this man, whatever it takes. I guess it's easier to let an innocent man die (like a sacrifice to the gods to make the world right again) than to prove another is responsible - which they could probably never get a conviction on, at this point, they've botched this all so badly.

Many people still hold out hope for Troy despite the GA Clemency Board's denial of his plea today, so hit this site to show your support for true justice to prevail.

The following thank you with blessings and encouragement from Troy himself comes via Freedom Archives' Political Prisoner Newsletter - sign up for their list-serve...

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A message from Troy Anthony Davis
September 10, 2011

Troy was found guilty of murdering a police officer 19 years ago, based upon the testimony of 9 witnesses. Today, 7 of those 9 have recanted their testimony entirely, and there are enormous problems with the testimony of the remaining 2 witness accounts. There is NO OTHER EVIDENCE. The murder weapon was never found. There is no DNA to test. Troy is scheduled to die by lethal injection on September 21, 2011.

To All:

I want to thank all of you for your efforts and dedication to Human Rights and Human Kindness, in the past year I have experienced such emotion, joy, sadness and never ending faith. It is because of all of you that I am alive today, as I look at my sister Martina I am marveled by the love she has for me and of course I worry about her and her health, but as she tells me she is the eldest and she will not back down from this fight to save my life and prove to the world that I am innocent of this terrible crime.

As I look at my mail from across the globe, from places I have never ever dreamed I would know about and people speaking languages and expressing cultures and religions I could only hope to one day see first hand. I am humbled by the emotion that fills my heart with overwhelming, overflowing Joy. I can’t even explain the insurgence of emotion I feel when I try to express the strength I draw from you all, it compounds my faith and it shows me yet again that this is not a case about the death penalty, this is not a case about Troy Davis, this is a case about Justice and the Human Spirit to see Justice prevail.

I cannot answer all of your letters but I do read them all, I cannot see you all but I can imagine your faces, I cannot hear you speak but your letters take me to the far reaches of the world, I cannot touch you physically but I feel your warmth everyday I exist.

So Thank you and remember I am in a place where execution can only destroy your physical form but because of my faith in God, my family and all of you I have been spiritually free for some time and no matter what happens in the days, weeks to come, this Movement to end the death penalty, to seek true justice, to expose a system that fails to protect the innocent must be accelerated. There are so many more Troy Davis’. This fight to end the death penalty is not won or lost through me but through our strength to move forward and save every innocent person in captivity around the globe. We need to dismantle this Unjust system city by city, state by state and country by country.

I can’t wait to Stand with you, no matter if that is in physical or spiritual form, I will one day be announcing,

“I AM TROY DAVIS, and I AM FREE!”

Never Stop Fighting for Justice and We will Win!

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org

Questions and comments may be sent to claude@freedomarchives.org

America the executioner: lynching, racism and the death penalty.

UPDATE (9/21/2011): SUPREME COURT GRANTS LAST-MINUTE STAY.

UPDATE (9/21/2011 9:35pm):

Troy's stay was denied
and he was executed tonight.

Rest in Freedom, Brother Troy.

This seemed an appropriate article, since an African American prisoner's bid for clemency in Georgia was denied today, and he's scheduled to be executed tomorrow in front of a world of witnesses who begged for his pardon. Hit this page to learn more about Troy Davis and to advocate for true justice for both him and the white police officer he was charged with killing. His conviction was based solely on recanted testimony from witnesses who report they had been coerced and the testimony of the man others identified as the real killer (who they couldn't even get an indictment against now if they tried, after all the doubt Troy's wrongful conviction would give him - boy is he laughing at all the cops now). I guess to some folks and most states in this country, one more black man dead is as good as another - they're all interchangeable when it comes to lynchings and executions. It still teaches the rest of us the same thing: Resistance is futile (which I assert that it is not).

The small question of reasonable doubt and innocence are irrelevant, though, when those with power and privilege stand to lose a bit of one or both if our minorities get too uppity, it seems. Besides, we all know that black men (and mothers of color, for that matter) are all guilty of something anyway, they just haven't all been booked yet - right? We need to go slow and throw in a few whites for the masses to choke it all down and call it a just democracy - I think that's largely how we ended up with a black man as president (the whites and Republicans also didn't want to take the blame for the mess Bush left behind).

We're still working on keeping folks down, without a doubt, so don't worry, dear privileged few. Arizona's so scared of people of color here becoming a voting majority that we're anxiously building 5000 more for-profit prison beds to accommodate the laws ALEC is crafting in order to disenfranchise and disempower the black and brown and Indigenous among us.

On top of that, for his part, Obama seems to be as bad as George Bush - if not worse - when it comes to exploiting our instruments of justice, turning them into even more devastating tools of oppression than ever before. All this madness, of course, is in the service of our capitalist, racist, brutal economy, which clearly still needs live sacrifices to feed on, and raw fear to keep us bound without chains. Fortunately, we each possess our own keys to freedom - so long as we can evolve. We'll know we've finally made real progress when we finally retire the executioners once and for all.

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DEATH SENTENCES LINKED TO HISTORY OF LYNCHING IN STATES

Ohio State University Research News

COLUMBUS , Ohio - States that sentence the most criminals to death also tend to be the states that had the most lynchings in the past, a new study suggests.

Researchers found that the number of death sentences for all criminals, Black and white, were higher in states with a history of lynchings. But the link was even stronger when only Black death sentences were analyzed.

The results may be shocking to many people, but they aren't surprising to sociologists who study the racial aspects of the death penalty, said David Jacobs, co-author of the study and professor of sociology at Ohio State University .

Our results suggest that the death penalty has become a sort of legal replacement for the lynchings in the past, Jacobs said. This hasn't been done overtly, and probably no one has consciously made such a decision. But the results show a clear connection.

Another study finding reinforces this idea. Results showed that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew larger, at least to a certain point. The researchers believe that is because, as their numbers increase, Blacks are seen by the white majority as a growing threat.

Jacobs conducted the study with Jason Carmichael, a graduate student at Ohio State, and Stephanie Kent, assistant professor of sociology at the University of Nevada, Las Vegas. Their results were published in the most recent issue of the American Sociological Review.

The findings showed a clear link between the number of lynchings, the proportions of African Americans in the states, and the number of death sentences. We found that violent acts in the distant past still seemed to be linked to current legal decisions about who will live and who will die.

For the study, the researchers examined the number of death sentences handed down in each of the mainland 48 states in 1971-72, 1981-82 and 1991-92. They computed lynching rates with data on state lynchings from 1889 to 1931 provided by the National Association for the Advancement of Colored People.

In their analysis, the researchers used a widely accepted statistical technique that allowed them to take into account the fact that the death penalty is not legal in all states and, even where it is legal, it is not always used.

They also took into account a wide variety of factors that also affect the number of death sentences given in a state, such as the overall crime and murder rates, unemployment rates, and fundamentalist church memberships.

To confirm their findings, the researchers repeated their analyses using a separate, and perhaps more reliable, data set on the number of lynchings that occurred in 10 Southern states.

In both cases, the findings showed a clear link between the number of lynchings, the proportions of African Americans in the states, and the number of death sentences.

* We found that violent acts in the distant past still seemed to be linked to current legal decisions about who will live and who will die, Jacobs said.

Why do the number of death sentences increase for white criminals as well as Blacks in states with a history of lynching?

* If there was clear discrimination against Blacks in death penalty sentencing, then the Supreme Court might again rule that the death penalty is unconstitutional, Jacobs said. So there may be an effort to not discriminate when imposing the death penalty. While the connection between lynchings and death sentences is strongest when only Black death sentences are considered, the connection between lynchings in the past and contemporary death sentences is present for both Blacks and whites.

* The findings also showed that the number of death sentences increases in states after a growth in the population of Blacks. But the number of death sentences begins to go down once the population of African Americans reaches a threshold of about 20 to 22 percent.

* Probably at that point, Blacks have enough votes and political influence within states to reduce the number of death sentences, Jacobs said.

The results of the study suggest that the United States is still a product of its past, Jacobs said.

Historical events continue to influence the current behavior of important social institutions. But the main point is that our findings do not support claims that the death penalty is administered in a color-blind fashion.

#

Contact: Jeff Grabmeier, (614) 292-8457; Grabmeier.1@osu.edu

Executing reasonable doubts.

My friend, Camille Tilley, is a tireless champion of the wrongly convicted, having been through hell with the system trying to free her daughter, Courtney, from prison here in Arizona. She took the time out to show support for Troy Davis in Savannah, Georgia, where they held a vigil the night before the court hearing, which she also attended. Troy's case is the one which the Supreme Court will likely use to decide whether or not it's unconstitutional to execute an innocent person...

I can't believe that's even something they have to decide. Even I know the answer to that one.

Anyway, here's the link to the news on the morning of the court hearing- once there you need to click on "Getting a seat for Davis hearing." That's Camille as usual, at work while she's probably supposed to be taking a break. Here's the link to the group she's been organizing:

Freedom March for the Wrongfully Convicted - 2009

A grassroots national innocence movement, Camille Tilley, founding member and Director for Arizona.

http://www.FreedomMarchUSA.org