Today’s Argument in House v. Bell

In Schlup v. Delo, the Supreme Court established that federal courts may consider the merits of otherwise procedurally defaulted habeas claims if the petitioner presents new reliable evidence showing that “it is more likely than not that no reasonable juror would have convicted him.” And in Herrera v. Collins, the Supreme Court assumed (but did not decide) that “a truly persuasive demonstration of ‘actual innocence'” would entitle a petitioner to federal habeas relief. In House v. Bell, the Supreme Court will consider whether newly discovered evidence presented in habeas proceedings is sufficient to excuse House’s procedural default, and what constitutes a “truly persuasive showing of actual innocence” warranting freestanding habeas relief under Herrera.

After being convicted of murder and sentenced to death in Tennessee state court, Paul House unsuccessfully raised a number of claims on state post-conviction proceedings. One of these claims, ineffective assistance of counsel, was initially raised in his state post-conviction petition but was not included in his appeal, thus waiving the claim in future proceedings. House then sought federal habeas relief, filing a petition for habeas corpus that asserted, inter alia, that he was factually innocent. The district court held that the overwhelming majority of House’s claims had either been decided correctly by the state courts or were procedurally barred. The court did, however, reserve judgment on four claims pending a hearing on newly discovered evidence to determine if it met the Schlup threshold or established a freestanding claim of actual innocence under Herrera.

House advanced three claims based on the new evidence. Semen found on the victim’s nightgown was from the victim’s husband, not House, which eliminated both the motive for murder advanced at trial and one of two physical links between House and the murder. Second, some of the victim’s blood sent to the FBI laboratory had spilled and was unaccounted for; House asserted that the missing blood had been planted on House’s jeans to frame him, which eliminated the only remaining physical link. Finally, it was argued that the testimony of several new witnesses showed that it was the victim’s husband, not House, who had committed the murder. This testimony included two individuals who heard the victim’s husband drunkenly admit to the murder shortly after it occurred, and new testimony from House regarding his whereabouts the night of the murder and new explanations for cuts and bruises on his arm found that night.

The district court concluded that although House was not the source of the semen on the victim, this did not contradict other evidence demonstrating that House committed the murder, nor did the lack of any physical evidence of sexual contact contradict the notion he had a sexual motive for the crime. The district court ruled against House on the remaining items of evidence, finding that House’s jeans did not have blood intentionally planted on them and that the witnesses’ testimony that the victim’s husband committed the murder was not credible. Thus, the district court concluded, House had not met Schlup’s requirement of presenting new evidence demonstrating that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” A divided panel of the Sixth Circuit affirmed. The en banc court of appeals affirmed by a vote of eight to seven. It held that, although the new evidence presented “at least a colorable claim of innocence,” it did not sufficiently outweigh the remaining evidence of guilt such that “it is more likely than not that no reasonable juror would have convicted him.” Thus, it did meet the Schlup gateway to justify the consideration of the procedurally barred ineffective assistance of counsel claim. Although House did not raise a freestanding actual innocence claim in the Sixth Circuit and the majority opinion did not address it, the Sixth Circuit dissent found that the evidence of House’s innocence presented to meet the Schlup gateway also satisfied the threshold set out in Herrera, which assumed (but did not decide) that actual innocence would entitle a petitioner to federal habeas relief. Because (inter alia) the circuit courts have split on whether such a freestanding claim could by itself establish a constitutional violation warranting habeas relief, the Supreme Court granted certiorari.

Stephan M. Kissinger of Federal Defender Services of Eastern Tennessee will argue for petitioner, and Jennifer Smith of the Tennessee Attorney General’s office will argue for respondent.

Petitioners’ Brief

Respondent’s Brief

Petitioners’ Reply Brief

House argues that under Schlup the district court failed to give reliable, credible evidence of innocence the appropriate weight and failed to consider its significance in light of the purely circumstantial evidence used to convict. House contends that the state built a circumstantial case against him at trial and that his new evidence refutes the only motive asserted by the state and the only two physical links between House and the murder. He argues that the district court incorrectly applied Schlup by holding that the threshold was not met solely because some evidence pointing to guilt remained, and that the proper inquiry under Schlup is to determine how a jury would view any remaining evidence of guilt in light of the new exculpatory evidence.

The state argues that House is asking that the Court ignore the presumptively correct factual and credibility determinations entrusted to the lower courts on which the Schlup calculus is based. With the exception of the semen evidence, the lower court resolved all other issues of fact against House at the evidentiary hearing as either unpersuasive or not credible. The ten-year-old witness testimony came from witnesses who either did not come forward at the original trial or had altered their original testimony. And the semen evidence neither exculpates him of the murder nor does it undermine the large body of remaining evidence showing that House committed the crime. In addition, it argues that AEDPA effectively overruled Schlup and requires petitioners to meet a higher standard of presenting “clear and convincing” evidence of factual innocence. Although AEDPA does not specifically address procedural default, it adopted the “clear and convincing” standard for abusive habeas claims and evidentiary hearings, and the state argues that it would make little sense to maintain the less stringent Schlup standard in the related area of procedural default. The state argues that maintaining the standard could lead to a situation where a petitioner successfully passes through the Schlup gateway but due to the higher standard for evidentiary hearings could be barred from developing the factual basis for the defaulted claim.

House’s reply brief argues that the state’s AEDPA argument that AEDPA modifies the Schlup standard is not properly before the Court because it was not raised until a supplemental brief to the Sixth Circuit. Further, AEDPA is silent on the standard for excusing procedural default of claims on first habeas petitions and does not affect the Schlup standard. He argues that because AEDPA selectively modifies particular aspects of habeas law, it should be inferred that did not intend to modify those areas not included in the statute.

House argues that the Court should adopt the standard in Justice White’s Herrera concurrence for freestanding claims of actual innocence on habeas, which would hold that to warrant habeas relief for a freestanding claim of actual innocence the entire record must show that “no rational trier of fact could find proof of guilt beyond a reasonable doubt.” He argues that this standard is met here because in light of the new evidence, no jury could find House guilty without a motive, without any physical evidence linking him to the crime, and with persuasive evidence indicating the victim’s husband was the perpetrator.

The state argues that since it was not raised in the Sixth Circuit, House’s freestanding actual innocence claim is not properly before the Court. Even if it were, Herrera should not be read to allow habeas relief based only on actual innocence because there is a state avenue available for such a claim – executive clemency. Finally, if Herrera does establish such a right to habeas relief it is not warranted here. The state argues that if a right to relief based on actual innocence exists, it should require the demonstration of innocence beyond a reasonable doubt. Since House has not met the threshold of innocence in Schlup he certainly has not met the higher standard of Herrera.