Eugene Wallace Perry v. Larry Norris ( 1997 )

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No. 95-1852
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Eugene Wallace Perry, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, *
Arkansas Department of *
Correction, *
*
Appellee. *
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Submitted: January 13, 1997
Filed: February 27, 1997
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Before BOWMAN and MURPHY, Circuit Judges, and Jones,1 District Judge.
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MURPHY, Circuit Judge.
Eugene Wallace Perry appeals the denial of his second petition for
habeas corpus. After conducting two evidentiary hearings the district
2
court denied his successive petition. We affirm.
Perry was convicted and sentenced to death for the 1980 murders of
Kenneth Staton and Suzanne Ware who were robbed and shot in their jewelry
store in Van Buren, Arkansas. After pursuing relief in state court, Perry
filed a petition for habeas corpus in
1
The Honorable John B. Jones, United States District Judge
for the District of South Dakota, sitting by designation.
2
The Honorable Garnett Thomas Eisele, United States District
Judge for the Eastern District of Arkansas.
federal court in 1983, which was denied. Perry v. Lockhart, 871 F.2d 1384
(8th Cir.), cert. denied, 493 U.S. 959 (1989). In 1990 he filed a second
habeas petition in which he claimed he was actually innocent of the murders
and that his Sixth Amendment rights were violated when the trial court did
not compel defense witnesses to testify. Included with that petition were
the unsworn statements of Marion Pruett, who is also on death row in
Arkansas, in which Pruett claims that he committed the murders. The
district court held an extensive evidentiary hearing and wrote a thorough
opinion that carefully examined Pruett's statements as well as the entire
record and concluded there was "no likelihood of Mr. Perry's being innocent
of the capital murders." Perry v. Norris, 879 F. Supp. 1503, 1582 (E.D.
Ark. 1995). The court also held that the defense witnesses were not
"sufficiently material" to warrant compulsory process under the Sixth
Amendment. Id. at 1514. The district court did not permit Perry to amend
his second habeas petition with claims of ineffective assistance of counsel
and Brady violations since there was no "procedural gateway" that would
allow it to consider new claims. Id. at 1582.
After he filed an appeal from the denial of his second petition,
Perry submitted two additional documents. One was an affidavit of Mark
Gardener, who is also on death row, which stated that some evidence
implicating Perry had been fabricated. The second was the sworn statement
of Marion Pruett, which contained essentially the same information that had
been submitted in his earlier unsworn statements. The case was then
remanded to the district court so it could consider whether further
proceedings were necessary to examine this material. The district court
found the Gardener affidavit contained false statements and held a hearing
regarding Pruett's new statement. At that hearing, Pruett refused to
testify. The district court then concluded that neither the Gardener
affidavit nor Pruett's sworn statement would affect its earlier decision.
2
Perry contends that Pruett's statement proves that he is actually
innocent of the murders and therefore there is no precedential bar to
consideration of the constitutional violations alleged in his second habeas
petition.3 Perry also claims he is entitled to amend his second habeas
petition.
A petition for a writ of habeas corpus will be examined even if
otherwise procedurally barred if the petitioner is able to demonstrate that
a miscarriage of justice would occur were the petition not considered.
This exception requires the petitioner to present new reliable evidence of
his innocence and to prove that no reasonable juror would have found him
guilty. Schlup v. Delo, 115 S. Ct 851, 865, 868 (1995). The factual
findings of the district court will stand absent clear error. McDonald v.
Bowersox, 101 F.3d 588, 592 (8th Cir. 1996).
The district court found Pruett's sworn statement and unsworn
statements unreliable, and there was much evidence to support this finding.
Pruett, who is on death row in Arkansas for kidnapping and murder, has been
convicted of murder in two other states and has confessed to other killings
and other violent crimes. Pruett has sought payment for his testimony, and
there is evidence that he seeks attention and wealth from his story,
including a television appearance and a contract to publish a book about
these murders. Pruett's statement is not credible on its face for it
includes an enormous amount of detail not normally found in statements of
past
3
At oral argument, Perry's attorney stated that his claim of
actual innocence was not presented to provide an independent
basis for habeas relief. Had Perry made that argument, it would
fail since he has not satisfied the lesser burden necessary to
provide a gateway through which his habeas petition could be
considered. He therefore could not meet the higher standard
necessary to support any free-standing claim. See Schlup v.
Delo, 115 S. Ct. 851, 861 (1995); Griffin v. Delo, 33 F.3d 895,
908 (8th Cir. 1994).
3
experience.4 The unsworn statements were made nine years after the murders
(the sworn statement was made fifteen years after the murders). All of the
detail contained in the statements was either part of the trial record
reflected in the transcript or could have been obtained from Perry, who had
opportunities to discuss the murders with Pruett. Finally, the government
was not able to scrutinize the veracity of the sworn statement because
Pruett refused to be cross-examined.
There was a large amount of evidence in the record demonstrating
Perry's guilt. Perry's defense was that he was not in Arkansas when the
murders were committed, but there was considerable evidence to the
contrary. Perry was identified as being in the parking lot of the shopping
center where the murders took place on the day of the murders. He was
identified as carrying a gun and rope with him as he left an Arkansas
campsite he had been staying at one or two days before the murders. A
witness testified that Perry returned to the campsite after the murders
with two bags of jewelry. Police investigation of the campsite and a
camper that a witness said had been at the campsite revealed a jewelry tag
and other things from the store. A witness testified she had dropped Perry
off at a local hotel on the day of the murders, and the police found a
matchbook from that hotel in the searched camper. When arrested, Perry had
on him two rings that had been taken from the store.
The district court did not err in denying Perry's petition because
he failed to demonstrate that no reasonable juror would find him guilty of
the murder of Kenneth Staton and Suzanne Ware.
4
For example, Pruett's statement contains detailed
information on the precise location of a motorcycle parked near
the jewelry store where the murders took place, the pattern and
condition of the tablecloth that was used to muffle the sound of
the gun, the clothes the victims were wearing, the jewelry taken
from the victims' persons and the jewelry left on their bodies.
4
See Schlup v. Delo, 115 S. Ct. 851, 868 (1995). Neither did the district
court abuse its discretion in denying Perry's motion to amend his petition.
Perry attempted to raise new claims as part of his second habeas petition.
Since he did not demonstrate his actual innocence, Schlup did not provide
a gateway through which his successive claims could be reviewed.5
Amendment of the petition would therefore have been futile. See Perkins
v. Spivey, 911 F.2d 22, 34 (8th Cir. 1990).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
Perry did not attempt to show cause and prejudice to excuse
his failure to raise the claims earlier. They were not raised in
his first petition, and he filed the amendments nearly five years
after submitting his second petition and over two years after the
first evidentiary hearing on that petition.
5