Carlos Whitby v. Dave Dormire , 2 F. App'x 645 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2379
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Carlos Whitby, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Dave Dormire, * [UNPUBLISHED]
*
Appellee. *
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Submitted: February 12, 2001
Filed: February 16, 2001
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Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Carlos Whitby pled guilty to various charges in state court, including, among
other things, kidnapping and conspiracy to commit murder, and was sentenced to prison
for forty years. His convictions were sustained by the state courts. He appeals from
the denial by the District Court1 of his federal habeas petition. We affirm.
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
Whitby presented the District Court with a free-standing claim of actual
innocence based on newly discovered evidence. The District Court correctly ruled that
such a claim is not cognizable in a federal habeas proceeding. See Herrera v. Collins,
506 U.S. 390, 400 (1993); Meadows v. Delo, 99 F.3d 280, 283 (8th Cir. 1996).
Though Whitby now argues that the District Court erred in analyzing his newly
discovered evidence under the Herrera standard instead of under Schlup v. Delo, 513
U.S. 298, 315 (1995) (holding that a claim of actual innocence is "a gateway through
which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits" (quoting Herrera, 506 U.S. at 404)), the record reveals that
Whitby never asserted a Schlup claim in the District Court. Nor could he successfully
have raised a Schlup claim, inasmuch as none of his claims was procedurally barred
and the District Court dealt with all of them on their merits. Accordingly, any claim
based on Schlup has been waived and, in any event, would have been inapposite.
We discern no error in the well-reasoned opinion of the District Court. Our
disposition of the case makes it unnecessary for us to address the State's alternative
argument that Whitby's proffered newly discovered evidence is not, in fact, "newly
discovered." The decision of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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