Randall S. Whitmore v. David Avery, Superintendent, Community Corrections Center , 63 F.3d 688 ( 1995 )

LOKEN, Circuit Judge.

The district court granted Nebraska inmate Randall Whitmore a writ of habeas corpus on the ground that his trial counsel provided ineffective assistance due to a conflict of interest. Whitmore v. Avery, 1992 WL 357771 (D.Neb.1992). The State appealed, and we reversed, over Judge Heaney’s dissent, on the ground that Whitmore’s claims are proeedurally barred. Whitmore v. Avery, 26 F.3d 1426 (8th Cir.1994). Because the issue of procedural bar required us to apply the actual innocence exception to that doctrine, the Supreme Court vacated our judgment and remanded “for further consideration in light of Schlup v. Delo, 513 U.S. [-], 115 S.Ct. 851 [130 L.Ed.2d 808] (1995).” Whitmore v. Avery, — U.S. —, 115 S.Ct. 1086, 130 L.Ed.2d 1056 (1995). For the following reasons, we reinstate our prior decision.

Our initial decision applied the legal standard for actual innocence adopted by the Supreme Court in Sawyer v. Whitley, 505 U.S. 333, 335-39, 112 S.Ct. 2514, 2517-18, 120 L.Ed.2d 269 (1992): whether the habeas petitioner has “demonstrate[d] by clear and convincing evidence that, but for the alleged constitutional error, no reasonable juror would have found the petitioner guilty of the crime of which he was convicted.” In Sawyer, the petitioner claimed he was actually innocent of, that is, ineligible for the death penalty. This is not a death ease; to avoid his procedural defaults, Whitmore argues that he is actually innocent of the crime. However, our court had applied the Sawyer standard to this type of actual innocence claim in Wallace v. Lockhart, 12 F.3d 823, 827 (8th Cir.1994), and our panel of course followed that controlling precedent.

In Schlwp, the Supreme Court clarified the actual innocence standard to be applied in this type of case. The Court held, first, that a claim of actual innocence of the crime “requires petitioner to support his allegations of constitutional error with new reliable evidence ... that was not presented at trial.” — U.S. at —, 115 S.Ct. at 865.¹ Second, if the petitioner satisfies this demanding burden, the merits of his actual innocence claim will be governed by a less rigorous standard than that of Sawyer: whether petitioner has demonstrated “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” — U.S. at-, 115 S.Ct. at 867. The Schlu-p standard governs this case. Whitmore argues that we must therefore affirm the grant of habeas corpus relief or, at a minimum, remand to the district court for application of this standard. We disagree.

The district court did not base its grant of habeas relief on Whitmore’s likely innocence. Rather, the court concluded, erroneously in our view, that there is a fundamental-miscarriage-of-justiee exception to procedural bar that requires no showing of actual innocence for ineffective assistance claims based upon counsel’s alleged conflict of interest. The district court based this conclusion on the presumption of prejudice that is applied in considering the merits of such a claim. However, as Schlup has now confirmed, the requisite showing of actual innocence is not related to the merits of the habeas claim; rather, it is “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” — U.S. at —, 115 S.Ct. at 861 (emphasis added), quoting Herrera v. Collins, — U.S. —, —, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). Thus, we must again examine the actual innocence question, this time applying the standard as articulated in Schlup.

Whitmore’s federal habeas petition raises two procedurally defaulted claims. He first contends that his trial judge failed to conduct a pretrial inquiry into whether Whit-more’s trial attorney could represent him at trial despite an apparent conflict of interest. This claim is irrelevant to the actual innocence inquiry under Schlup. As we explained in our initial opinion, Whitmore failed to establish that such an inquiry would have led to removal of his trial counsel. See 26 F.3d at 1430-31. Since the curing of this alleged constitutional error would not have affected Whitmore’s trial in any way, the claim is not supported by “new reliable evidence that was not presented at trial,” and the actual innocence exception under Schlup is unavailable.

Second, Whitmore argues that his Sixth Amendment right to counsel was violated because his attorney labored under an actual conflict of interest at trial. This claim includes an allegation that an unconflieted attorney would have presented additional evidence at trial, principally the testimony of defendant Whitmore and counsel’s other client, John White. These allegations of additional evidence place this defaulted claim within the purview of Schlup. However, as we noted in our initial decision, ‘Whitmore failed to show that White was willing to testify and did not explain why the testimony of either would have changed the outcome of the trial.” 26 F.3d at 1431. Therefore, as to this claim, Whitmore failed to establish “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” Schlup’s legal standard of actual innocence. — U.S. at-, 115 S.Ct. at 867.

Whitmore failed to prove that his case would have reached the trial jury in a significantly different evidentiary posture had the constitutional errors alleged in his two procedurally defaulted claims not occurred. In these circumstances, the claims are procedurally barred, and his petition for a writ of habeas corpus must be denied.

1 . The Court explained: “Without any new evidence of innocence, even the existence of a con-cededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” -U.S. at -, 115 S.Ct. at 861.