Paul Gregory House v. Ricky Bell, Warden , 386 F.3d 668 ( 2004 )

NORRIS, J., delivered the opinion of the court, in which BOGGS, C. J., SILER, BATCHELDER, GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. MERRITT, J. (pp. 686-709), delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined. GILMAN, J. (pp. 709-10), also delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner Paul House appeals from the district court’s denial of a writ of habeas corpus, 28 U.S.C. § 2254. A Tennessee jury found House guilty of the murder of a neighbor, Carolyn Muncey, and sentenced him to death.

This court granted a certificate of ap-pealability as to all issues. However, House has limited his brief to a discussion of only two claims: 1) Whether the manner in which the Tennessee courts applied the state law doctrine of waiver during House’s post-conviction proceedings constitutes an adequate and independent state procedural bar to his ineffective assistance of counsel claims; and 2) assuming that the Tennessee courts properly deemed House’s claims to be waived, whether that waiver should be excused on the grounds that House has established his actual innocence under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). After the Tennessee Supreme Court declined a request by an en banc panel of this court to answer certified questions relating to issues of state law, House v. Bell, 311 F.3d 767 (6th Cir.2002), this court is again faced with the same claims.

Having considered the arguments of the parties regarding the two claims that are before us, we affirm the district court’s denial of the writ for the reasons set forth below.

I.

This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). House initiated this habeas action on September 30, 1996; the petition was amended on September 16, 1997. Consequently, this court’s review of the state court’s decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997).

Because factual determinations by state courts are entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), we will describe the factual circumstances surrounding the murder for which House was convicted by quoting from the Tennessee Supreme Court’s opinion denying him relief in his direct appeal:

The victim of the homicide was Mrs. Carolyn Muncey, who lived with her husband and two young children on Rid-gecrest Road in rural Union County, Tennessee. Mrs. Muncey was in her late twenties, and her children were about eight and ten years old at the time of her death on July 13,1985.

In March 1985 appellant Paul Gregory House was released from a prison in Utah and moved to the rural community in which the Muncey family lived. There he resided with his mother and step-father for several weeks, but in June he moved into a trailer occupied by his girl friend, Donna Turner, which was located about two miles from the Mun-cey home. Appellant did not own an automobile; but he was permitted to drive his mother’s car from time to time, and he also drove Ms. Turner’s car on some occasions.

Other than doing occasional farm work for his stepfather, appellant does not appear to have been regularly employed. He did not testify at trial at either the guilt phase or the sentencing hearing. He was shown to have had one prior conviction for aggravated sexual assault, a charge to which he pled guilty on March 16, 1981 in Salt Lake County, Utah. Apparently he was placed on parole in that state, and supervision of his parole was transferred to Tennessee when he returned to this state. He was approximately twenty-three years old at the time of the homicide in this case.

Mrs. Muncey disappeared from her home in the late evening of Saturday, July 13, 1985. Her badly beaten body was found on the following afternoon at about 3 p.m., lying partially concealed in a brush pile about 100 yards from her home. Apparently the husband of the victim was not at home during the early part of the evening of July 13. Mrs. Muncey and her children visited a neighbor and left at about 9:30 p.m. to return to their home. Later the older child, Laura, awoke. She testified that she heard a voice which sounded like her grandfather making inquiry about her father. She also heard someone tell her mother that her father had been in a wreck near the creek. She heard her mother sobbing or crying as she left the house. When her mother did not return, the two children went to look for her at neighboring homes. Not finding her,'they returned home and waited until their father arrived. Discovering that his wife was missing, he took the children back to the home of the neighbor where they had visited earlier in the evening and then called for members of his family to look for his wife.

When the body of Mrs. Muncey was discovered the next afternoon, she was dressed in her nightgown, housecoat and underclothing. Her body was badly bruised, and there were abrasions and blood giving every evidence that she had been in a fierce struggle. Apparently a severe blow to her left forehead had caused her death. It appeared, however, that she had also been partially strangled. A pathologist testified that the blow to her left forehead caused a concussion and hemorrhage to the right side of the brain from which she died, probably' one or two hours after being struck. He testified that she probably would have been unconscious after having been struck. He estimated the time of her death at between 9 p.m. to 11 p.m. bn Saturday, July 13, but emphasized that this was at best a rough estimate.

Appellant never confessed to any part in the homicide, and the testimony linking him to it was circumstantial. There was evidence showing that he knew Mr. and Mrs. Muncey and had been with them socially on a few occasions. Through defense proof there was testimony that Mrs. Muncey and her husband had been having marital difficulties and that she had been contemplating leaving him. There was no evidence to indicate that the appellant was aware of that situation, however, or that there had been any previous romantic or sexual relationship between him and the victim.

On the afternoon of Sunday, July 14, 1985, two witnesses saw the appellant emerge from a creek bank at the side of Ridgecrest Road at the site where Mrs. Muncey’s body was later found concealed in the underbrush. He was wiping his hands with a dark cloth and was walking toward a white Plymouth automobile, parked on the opposite side of the road, belonging to his girl friend Donna Turner. The two witnesses spoke briefly to appellant, all of them discussing the fact that Mrs. Muncey had disappeared. Later the two witnesses became suspicious of what they had observed and returned to the point where they had seen appellant emerge from the embankment. Looking down the bank, they found the partially concealed body of Mrs. Muncey. They promptly notified the sheriff.

Appellant later admitted that he had been in the area but denied that he had seen the body of Mrs. Muncey or had any knowledge of its presence. The dark rag which he had been using when first seen was never produced. It was the theory of the State, however, that this was a dark “tank top” or jersey which appellant was shown to have been wearing on the previous evening, July 13.

Appellant gave two statements to investigating officers in which he denied being involved in the homicide. In both of these statements he stated that he had been at Ms. Turner’s trailer the entire evening of July 13 and that he had not left until the next afternoon when he went to look for Hubert Mun-cey after learning of the disappearance of the latter’s wife.

On Sunday afternoon various witnesses observed that appellant had numerous scratches and bruises on his arms, hands and body, there being an especially significant bruise on the knuckle of his right ring finger. Appellant explained that these injuries had been sustained innocently earlier during the week, but when Ms. Turner was called as a witness, she said that she had not observed them prior to the evening of July 13. Appellant also told investigators that he was wearing the same clothes on Sunday, July 14 as he had been wearing the previous evening. It was later discovered, however, that a pair of blue jeans which he had been wearing on the night of the murder was concealed in the bottom of the clothes hamper at Ms. Turner’s trailer. These trousers were bloodstained, and scientific evidence revealed that the stains were human blood having characteristics consistent with the blood of Mrs. Mun-cey and inconsistent with appellant’s own blood. Scientific tests also showed that fibers from these trousers were consistent with fibers found on the clothing of the victim. There were also found on her nightgown and underclothing some spots of semen stain from a male secretor of the same general type as appellant.

Some of the most damaging evidence against appellant was given by his girl friend, Ms. Turner. She at first told investigators that he had not left the trailer during the course of the evening of July 13. Later, however, she modified this testimony to state that he had been in the trailer until about 10:45 p.m. at which time he left to take a walk. When he returned an hour or so later, he was panting, hot and exhausted. He was no longer wearing either his blue jersey or his tennis shoes. The shoes were later found in an area different from the place where appellant told her he had lost them.

Appellant told Ms. Turner that he had thrown away the navy blue tank top because it had been torn when he was assaulted by some persons who tried to kill him. It was after the appellant’s return to the trailer that Ms. Turner first noticed the bruises and abrasions on his hands referred to previously.

Appellant’s mother testified that he had not used her automobile on Saturday evening. She testified that during Saturday and Sunday she had been planning to separate from appellant’s stepfather and that appellant had been assisting her in her preparations for moving.

At the sentencing hearing the State proved appellant’s prior conviction for aggravated sexual assault. Appellant’s parents testified that he came from a broken home and had been subjected to stress as a result of that experience. Appellant’s mother also testified that in the interval between the guilt trial and the sentencing hearing appellant had attempted suicide. She read into evidence a letter which he had written to her denying his involvement in the homicide. Apparently he had cut his wrists while in the jail awaiting the sentencing hearing, but the degree and extent of the injuries were not detailed in evidence. They do not appear to have been serious and did not prevent his attending the sentencing hearing.

Although the evidence against appellant was circumstantial, it was quite strong. Particularly incriminating was the testimony that he had emerged from an embankment where the body was found, wiping his hands on a dark cloth, without disclosing to anyone the presence of the body. Damaging also were the discovery of his bloodstained trousers and the testimony of Ms. Turner, which a trier of fact could have found sufficient to demolish his alibi and to demonstrate that he had been in a heavy struggle near the time when the homicide must have occurred.¹ A classic case for determination by a jury was presented, and the evidence clearly is sufficient to support the conviction.

Following the sentencing hearing, the jury imposed the death penalty. In their verdict they found that the State had established three aggravating circumstances, these being: (1) appellant had previously been convicted of a felony, involving the use or threat of violence to the person; (2) the homicide was especially heinous, atrocious, or cruel; and (3) it was committed while appellant was committing or attempting to commit or fleeing from the commission of rape or kidnapping. T.C.A. §§ 39-2-203(i)(2), (5), and (7).

There was ample evidence to support all of these findings and to support the conclusion of the jury that no mitigating circumstances had been established which would outweigh the aggravating circumstances. Certainly the sentence of death was not disproportionate to that imposed in other cases in view of the violent and brutal nature of the homicide shown in this record.

State v. House, 743 S.W.2d 141, 142-44 (Tenn.1987) (footnote in original).

After his conviction and sentence were handed down in February 1986, House took a direct appeal to the Tennessee Supreme Court. The Tennessee Supreme Court affirmed in the opinion just cited. House failed to seek a writ of certiorari in a timely manner.

Post-conviction proceedings began in February 1988 with the filing of a pro se petition for post-conviction relief in the trial court. This petition, amended after appointment of counsel, was denied by the trial court on November 29, 1988. Although claims of ineffective assistance of trial counsel were submitted to the court, they were not argued, nor was trial counsel called as a witness at the hearing. Only a single issue was taken to the Tennessee Court of Criminal Appeals: whether a jury instruction improperly misled jurors into believing that they must unanimously find mitigating circumstances. The Court of Criminal Appeals affirmed the conviction on December 15, 1989. The Tennessee Supreme Court denied leave to appeal and the United States Supreme Court denied certiorari.

A second petition for post-conviction relief was filed on December 14, 1990. After conducting hearings, the trial court denied relief on the ground urged by the State: that all the issues presented had either been previously determined in the first petition or, if not, had been waived.²

The Court of Criminal Appeals affirmed the trial court’s decision on September 2, 1992. However, the Tennessee Supreme Court remanded for reconsideration in light of one of its recent opinions, which it later withdrew. The Court of Criminal Appeals remanded the matter to the trial court for further consideration of the waiver issue. This remand was averted, however, when the Tennessee Supreme Court re-instated the trial court’s initial denial of the second petition for post-conviction relief. House v. State, 911 S.W.2d 705 (Tenn.1995). Critical for this habeas action is the Court’s holding concerning waiver:

We conclude that a “full and fair hearing” sufficient to support a finding of previous determination occurs if a petitioner is given the opportunity to present proof and argument on the petition for post-conviction relief. We further conclude that the rebuttable presumption of waiver is not overcome by an allegation that the petitioner did not personally and therefore, “knowingly and understandingly,” waive a ground for relief. Instead, waiver is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney. Finally, we conclude that there is no right to effective assistance of counsel in post-conviction proceedings, and therefore, an allegation of ineffective assistance of prior post-conviction counsel does not preclude application of the defenses of waiver and previous determination.

Id. at 714. Because of its holding, the Tennessee Supreme Court re-instated the trial court’s original denial of relief.

House filed a pro se habeas petition on September 30, 1996, which was eventually amended after the district court granted in forma pauperis status and appointed counsel. The district court granted the State’s motion for summary judgment on the majority of claims in an order entered June 25, 1998. In February 1999, it conducted an evidentiary hearing on House’s claim that the procedural default of his ineffective assistance of counsel claims was excused because he could establish his actual innocence. After considering post-hearing briefs of counsel, the district court denied habeas relief. It also denied a certificate of appealability, a denial which was later superseded by this court’s grant of a certificate as to all issues.

Although a certificate of appealability had been granted as to all issues, House has raised only two issues in his briefs to this court: 1) whether the Tennessee state courts applied the state waiver rule in such a way that it constituted an adequate and independent state ground that procedurally defaulted his ineffective assistance of counsel claims; and 2) whether, if his ineffectiveness claims were procedurally defaulted, he had made a sufficient showing of his actual innocence of the crime, permitting him to revive them. On March 11, 2002, a three-judge panel of this court issued an opinión rejecting House’s claims and affirming the district court’s denial of the writ. House v. Bell, 283 F.3d 737 (6th Cir.2002) (withdrawn). That opinion was vacated when a majority of the active judges of the court voted to rehear the case en banc. On November 22, 2002, following oral argument, the en banc court issued an opinion certifying questions of state law to the Tennessee Supreme Court. House v. Bell, 311 F.3d 767 (6th Cir.2002) (en banc), cert. denied, 539 U.S. 937, 123 S.Ct. 2575, 156 L.Ed.2d 622 (2003). The Tennessee Supreme Court declined to answer the questions. House v. Bell, No. M2003-01952-SC-S23-CQ (Tenn. Nov. 24, 2003). Following the issuance of that order, we requested additional briefing and argument from the parties prior to rendering this decision.

II.

The first issue House has raised on appeal involves his contention that both the Tennessee courts and the district court erred when they concluded that his claims of ineffective assistance of counsel were procedurally barred.

Initially, the district court deferred granting summary judgment to the State on the claims of ineffective assistance of counsel because “these claims are intertwined with the petitioner’s claim of actual innocence.” Memorandum Opinion, June 25, 1998, at 41. It went on to provide the following rationale:

[T]he court will be unable to -determine whether the claims should be. barred on the ground of procedural default until the conclusion of the evidentiary hearing. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ ”) Accordingly, in addition to petitioner’s claim of actual innocence, the court will consider [the ineffective assistance of counsel claims].

Id. at 41-42. However, after conducting an evidentiary hearing and determining that House had failed to establish actual innocence, the district court held that House’s ineffective assistance of counsel claims were “barred on the ground of procedural default.” Memorandum Opinion, February 16, 2000, at 46-47.

House concedes that an adequate and independent state-law ground can procedurally bar subsequent habeas claims. This circuit has developed a four-part analysis to determine whether a claim is barred:

Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), this circuit utilizes the following four-part analysis when the state argues that a federal habeas claim has been procedurally defaulted in state court: (1) whether there is a procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to follow the rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.

White v. Schotten, 201 F.3d 743, 749 (6th Cir.2000).

House points to the tortured path that his case took in the courts of Tennessee and argues that no hard and fast rule existed to procedurally bar his pro se ineffective assistance of counsel claims. Specifically, he points to the following paragraph of the opinion of the Tennessee Supreme Court:

Our research has revealed no reported Tennessee case dealing directly with the issue of the appropriate standard to apply when determining whether an issue has been waived. Courts in other states have split on whether to apply a subjective or objective standard and provide us little assistance because their decisions were based largely on the particular state statutory procedure. However, Tennessee cases dealing generally with the concept of waiver in the post-conviction context apply an objective standard and impute the conduct of counsel to their clients. See, e.g., Caruthers v. State, 814 S.W.2d 64, 70 (TenmCrim. App.1991); State v. Bishop, 731 S.W.2d 552 (Tenn.Crim.App.1986).

House, 911 S.W.2d at 713 (emphasis added) (footnotes omitted). In House’s view, this opinion illustrates that no rule had been clearly established.

We do not write on a clean slate with respect to this issue. See Cone v. Bell, 243 F.3d 961 (6th Cir.2001), rev’d on other grounds, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Coe v. Bell, 161 F.3d 320 (6th Cir.1998). In Cone, this court made clear that the House opinion that House relies upon merely explained existing state law. The petitioner in that case contended that he had not personally waived a challenge to a jury instruction. In rejecting his claim, we explained:

First, we are aware of two cases in which courts have considered whether a petitioner is bound by his attorney’s waiver of a constitutional claim, Coe, 161 F.3d 320, and House v. State, 911 S.W.2d 705 (Tenn.1995). The House court stated that “[wjaiver in the post-conviction context is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney.” House, 911 S.W.2d at 714. House does not appear to announce a new standard, as Cone suggests. Rather, it seems merely to affirm Tennessee’s standard of review.

In Coe, as we explained earlier, this court held that the petitioner had procedurally defaulted his state claim that the trial court failed to give a correct malice instruction. He presented the claim for the first time in his second petition for post-conviction relief rather than his first petition, as a consequence of which the Tennessee Court of Criminal Appeals found it had been procedurally waived. Coe, 161 F.3d at 329-31. This court cited House when determining that Coe had defaulted his claim under an “objective” standard of waiver. However, the petition upon which the court relied in finding the default was filed before House was decided. Thus, concerning defaults that occurred before House was decided, the Tennessee courts have strictly and regularly applied the traditional standard of waiver, whether the waiver is made by counsel or the petitioner personally.

Last, we are not persuaded that Cone is correct in his claim that Tennessee law was in a state of confusion on whether an “objective” or “subjective” standard of waiver is appropriate. It is not clear from the Tennessee cases that procedural default may not be charged to a petitioner who has not himself “knowingly and understanding^” waived timely assertion of a federal constitutional claim when his attorney has done so. We are satisfied that Tennessee follows the traditional rule that a petitioner is chargeable with his attorney’s failure to timely assert a claim and with the consequences of failing to do so.

Cone, 243 F.3d at 974. We find this reasoning dispositive of the issue before us and accordingly conclude that the district court was correct when it determined that House’s ineffective assistance of counsel claims had been procedurally defaulted.

III.

We now turn to House’s other claim. House argues that even if his ineffective assistance of counsel claims have been procedurally defaulted, he has established his actual innocence of the crime for which he was convicted, a showing which, if made, revives his ineffectiveness claims. In Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Supreme Court held that a petitioner must show either cause and prejudice or a miscarriage of justice in order to obtain habeas review of an otherwise procedurally defaulted claim. House seeks to invoke the miscarriage of justice exception here. With respect to a miscarriage of justice, a petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. The Court explained the nature of this exception as follows:

Claims of actual innocence pose less of a threat to scarce judicial resources and to principles of finality and comity than do claims that focus solely on the erroneous imposition of the death penalty. Though challenges to the propriety of imposing a sentence of death are routinely asserted in capital cases, experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or crit- . ical physical evidence — that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. Even under the pre-Sawyer regime, “in virtually every case, the allegation of actual innocence has been summarily rejected.” The threat to judicial resources, finality, and comity posed by claims of actual innocence is thus significantly less than that posed by claims relating only to sentencing.

Of greater importance, the individual interest in avoiding injustice is most compelling in the context of actual innocence. The quintessential miscarriage of justice is the execution of a person who is entirely innocent.

Id., 513 U.S. at 324-25, 115 S.Ct. 851 (footnote and citation omitted). The Court cautioned that this exception is rare and should be applied only in the extraordinary case, concluding that, “[t]o establish the requisite probability [that a petitioner is actually innocent], the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id., 513 U.S. at 327,115 S.Ct. 851.

Because the district court conducted an evidentiary hearing on this issue, there is testimony about events beyond that which was presented during the original trial. House contends that this new evidence is sufficient to establish his actual innocence. We will summarize that evidence and the district court’s response to it before explaining why, in our view, House has failed to show that it is more likely than not that no reasonable juror would have convicted him.

House testified for the first time at the evidentiary hearing. He offered this version of the night of murder: “I went for a walk. I got jumped, ran around, came back.” He went on to explain that the terrain was hilly and that it was dark:

I had only been walking about maybe 20 minutes at the most it seems like. A truck pulled up behind me with, I remember it as being like a 4-wheel drive. It sat up high, you know. Headlights were on. It had lights across the roof of the cab and they were on. I couldn’t see anything other than that about the truck.... I turned around and I kept walking. I believe there were at least two guys in the truck. I know the driver got out on his side, one guy got out on the passenger side. I couldn’t really discern it, but I think there was one other guy in the cab. The driver came up. I can remember he said something, but I don’t even know if I heard him correctly at the time. He grabbed me by the arm.

He started to jerk me around. I turned around and threw him back with my left hand. I hit him. He let go. I started running. I ran kind of diagonally across the road into some trees, bushes, whatever it was. I heard a shot, at least one. There might have been two. I am not sure. I ran around through those woods for a while. I don’t know how long. When I came back out — I believe at one point I ran to the right, once I got into the woods, and started heading back.... I went back across the road up to Donna’s house. When I got, I stepped on something, a sharp rock or something. I knew I stepped on it. When I looked down I only had one shoe. I lost one of them while I was running. I took the other one off and threw it across the road.

I didn’t even notice my shirt was gone until I got up to the trailer.

As the factual summary of the Tennessee Supreme Court attests, this version of events is relatively consistent with the one presented by Donna Turner during the trial. When asked why he initially lied to investigators by telling them he had not left the trailer at all, House responded, “I was on parole. I didn’t want to draw attention to myself.”

In short, House’s testimony merely restates a scenario presented to the jury that had convicted him. Moreover, the district court, which had the opportunity to assess House’s demeanor, found his testimony to be less than credible.

During the evidentiary hearing, House devoted considerable time to the trial testimony of Billy Ray Hensley, the witness who saw House near the spot where the body was discovered. Specifically, House introduced maps and photographs in order to show that Hensley could not have seen what he purported to see from the place where he claimed to have been.

At trial, Hensley testified that his wife received a telephone call at about 2 p.m. on July 14 that Mrs. Muncey was missing. He drove to the Muncey trailer and talked to some of the family members. He then “went to check on [his] tobacco.” After visiting his fields, he ended up on Bear Hollow Road, which was near where the Munceys lived.

He then had an encounter with House, which he described in these terms:

[J]ust before I rounded the curve of Ridgecrest, whatever the name of that road is, I saw Mr. House come out from under a bank, wiping his hands on a black rag. And I went on down to Little Hube’s³ driveway. I pulled up in the driveway where I could see up toward Little Hube’s house and I seen Little Hube’s car wasn’t there, and I backed back out in the road, and come back towards to the Dump Road, that is what I call it. And that is when Mr. House flagged me down....

The two men had a short conversation about the fact that Mrs. Muncey was missing. House was driving his girlfriend’s white Plymouth.

After leaving, Hensley became suspicious and, along with his friend Jackie Adkins, returned to the spot where he thought House had emerged: “I said— right along here is where I saw [House], and I got out and was looking off the bank, and [Adkins] got out and walked around the car and he said — oh, my God.”

On cross-examination, Hensley conceded that he could not have seen House while he was actually “down in the embankment.” He would have first seen him at the top of the bank. Defense counsel also tried to bring out some inconsistencies in Hensley’s statements concerning precisely when and where he first saw House. On re-direct, the prosecution attempted to have Hensley clarify:

Q. Let me ask you if this is a true statement — “I traveled about 500 feet on Ridgecrest Road when I saw a ’66 or ’67 white Plymouth sitting on the left-hand side of Ridgecrest Road,” is that true?

A. That’s true.

Q. Is that where you saw the car?

A. Yes, sir.

Q. Is this true? “I saw a man later identified to me as Paul G. House enter the roadway from the right-hand side of the road?”

A. He was walking toward the road, yes.

Q. All right. “And he was coming up over the bank and he had a rag in his hand and he was wiping his hands,” is that true?

A. That’s true.

Q. The estimation [of the distance on the road] that you have given, that you were pressed for, is that an accurate measurement or is that an estimate on your part?

A. That is just an estimate.

The exhibits introduced by House during the evidentiary hearing were designed to show that Hensley could not have seen House coming up the embankment. However, even if we accept House’s contention that Hensley could not have seen him until he emerged onto the road, it is undisputed that House was seen in the general vicinity of the body carrying a black rag. Moreover, trial counsel effectively cross-examined Hensley regarding his inconsistent statements about when and where he saw House. Thus, in our view, House’s attack on Hensley’s testimony advances his cause little, if at all.

In addition to presenting his own version of events while attempting to cast doubt on the accuracy of Hensley’s testimony, House takes aim at the physical evidence that linked him to the crime.

Dr. Alex Carabia performed the autopsy of Mrs. Muncey’s body. He testified at the trial that death was caused by a blow to the left side of her head. Mrs. Muncey died about an hour and a half after she was hit.

At trial, photographs of the bruises on House’s body were entered into evidence and three witnesses testified about his physical condition. Prior to his arrest, House provided various accounts of their origin, attributing them to a mysterious fight on the night of the murder and to tearing down a shed a few days earlier. During closing argument, the prosecution emphasized these inconsistent statements.

Also at trial, FBI Agent Paul Bigbee testified that the blood samples taken from the victim were degraded. Nonetheless, the blood found on the jeans was consistent with that of the victim and not with that of House.

At the evidentiary hearing, House mounted a concerted challenge to this evidence.

Four vials of blood were taken from the victim during the autopsy. These were placed in a styrofoam container, which was sent from the Tennessee Bureau of Investigation (TBI) to the FBI. House referred to two demonstrative exhibits in the district court: photographs of the styrofoam container viewed from above and from the side. The container was sealed with tape by the TBI in both directions for shipping. The photograph of the side view shows that one of the seals was broken and then resealed by a second layer of tape. FBI Agent Bigbee placed his lab number on the second layer. The first layer of tape is incomplete; it only covers the lid of the container. Agent Bigbee conceded that it was possible that the first seal had been cut before the second seal had been placed over it. To support the theory that the container was opened between the time it left the TBI and arrived at the FBI, House points to the fact that the label on the container indicated that it held both blood and vaginal secretions. Yet, Agent Bigbee received the secretions separately in a manila envelope.

As mentioned above, four vials of blood were sent to the FBI. According to Agent Bigbee, he would have used one fourth of a vial in testing. House’s trial serology expert, Howard Bragdon, took a photograph when he received the styrofoam container from the FBI. In House’s view, the photograph shows that one of the vials was only one-half full and another was nearly empty. Furthermore, despite Agent Bigbee’s testimony to the contrary, it appeared that some of the blood had spilled, although there is no evidence indicating that the spillage had occurred before the FBI received the blood.

At the evidentiary hearing before the district court, Dr. Cleland Blake, Assistant Chief Medical Examiner for the State, examined the results of the FBI tests of the blood found on the blue jeans and also the blood taken from Mrs. Muncey’s body at the autopsy. He theorized, based upon the degree of the enzymatic degradation, that the blood on the blue jeans came from known samples, such as the blood contained in the vials, and not from Mrs. Muncey’s body. When confronted with this conclusion, Agent Bigbee was doubtful, noting that the extent of enzymatic degradation could vary greatly from specimen to specimen taken from the same source depending upon the manner in which the specimens were handled after being extracted from the source, and upon other individual circumstances. To bolster Blake’s conclusion, House asserted that the locations of the blood stains on the jeans were unlikely to have been caused by a struggle between House and the victim. The five stains were found on the outside left leg, on the inside left thigh, on the inside right pocket, outside the right pocket, and on the right cuff, respectively.

An expert on blood spatter analysis, Paulette Sutton, also testified at the evi-dentiary hearing. She testified, contradicting House’s assertion, that the pattern of some of the blood spots on House’s jeans was consistent with transfer stains resulting from blood being wiped onto them, that some of the stain patterns demarcated folds, and that the rest of the stains were consistent with spatter. She also noted, however, that some of the blood stains on the jeans were mixed with mud, although the photographs of the crime scene showed no mud present. Furthermore, National Weather Service records show that it had not rained for three days prior to the murder. Finally, there was no mud on the victim’s nightgown.

Finally, House notes that no blood was found on the tennis shoes that he was wearing on the night of the murder. Charles Burks, House’s trial attorney, also testified at the evidentiary hearing. The district court summarized his testimony on the issue of the tennis shoes as follows:

During the evidentiary hearing, Mr. Burks reviewed a report from the Forensic Services Department of the TBI, which referred to Mr. House’s tennis shoes and indicated the absence of blood on the tennis shoes. Mr. Burks did not recall having seen that report before. That would have been relevant to Mr. Burks because, although there was blood on Mr. House’s jeans near the cuff, there was no blood on the shoes he was wearing at the time of the offense. The shoes were found in the general area of Ms. Turner’s trailer long after the murder.

Memorandum Opinion, February 16, 2000 at 25.

The court recounted the discovery of the blue jeans in these terms:

TBI Agent Charles Scott testified that he became involved in the investigation of Mrs. Muncey’s murder, at the request of another agent, on the second day of the investigation. He took a statement from Mr. House and obtained consent to search from Ms. Turner. He went to Ms. Turner’s home and seized a pair of blue jeans from the clothes hamper in the bathroom. The jeans had “reddish brown” stains that he suspected was [sic] blood on the upper part of the jeans and near the cuff; there was also some light colored mud that was not completely dry.

Mr. Scott did not thoroughly examine the jeans at that time but rather folded them and put them in a paper bag. Mr. Scott did not recall ever seeing the jeans in a plastic bag.

Memorandum Opinion, February 16, 2000, at 23.

The court then summarized the testimony of House’s expert witnesses. Larry Johnson testified as an expert in crime scene investigation and opined that “the packaging of materials in the case did not meet professional standards” because items were not wrapped separately. DNA expert Lisa Calandro eliminated House as the donor of the semen found on Mrs. Muncey’s underwear and nightgown.

Howard Bragdon testified for House as well. Bragdon was the manager of laboratory operations for DCI Laboratory in Nashville. This laboratory had performed the blood analysis for House at trial. Bragdon noted that he took possession of the blue jeans, the victim’s clothes and fingernail scrapings, as well as blood from both the victim and House, on October 29, 1985. The next day, after transporting them to Nashville, he took pictures that showed dried blood around the upper left corner of the box in which the items had been contained. According to the district court, “Mr. Bragdon admitted that it was his custom to inspect the condition of sero-logical evidence when he took possession and that there was no notation on the receipt of spillage. Mr. Bragdon also admitted that he had no way of knowing the condition of the blood samples at the time of the FBI’s serological testing.” Memorandum Opinion, February 16, 2000, at 35.

The court characterized Dr. Blake’s testimony as follows:

Dr. Blake testified that there was no total chain of custody. Also, according to Dr. Blake, Dr. Carabia [the coroner] failed to refrigerate and preserve the blood in the tubes, failed to seal the tubes of blood, which could result in spillage, and failed to package the items individually.

Dr. Blake’s testimony was based upon his review of photographs of the physical evidence, and was relevant to Dr. Blake’s opinion that the blood on petitioner’s blue jeans resulted from spillage of Mrs. Muncey’s blood in the laboratory tubes ...

Dr. Blake testified that if fresh blood had spilled on the blue jeans while Mrs. Muncey was alive, and then dried, the enzymes on the jeans would not have deteriorated to the same extent as the enzymes in the blood taken from Mrs. Muncey. From this, Dr. Blake concluded the blood was not spilled on the jeans but rather came from the spillage of the test tubes.

Dr. Blake also testified with respect to the age of Mr. House’s bruises, based upon photographs taken from the state court record. Dr. Blake estimated some bruises at one to two days old; others at five to six days old. Also, in Dr. Blake’s opinion, the bruising on Mr. House’s right ring finger was an injury from being mashed; it was not consistent with striking someone.

Memorandum Opinion, February 16, 2000, at 37-38.

The district court also summarized the testimony of the blood spatter expert, Ms. Sutton, and noted that her testimony contradicted the theory that blood had spilled from the vials onto the blue jeans “because the blood and mud [with which it had mixed] would have had to have spilled at the same time.” Memorandum Opinion, February 16, 2000, at 42.

With respect to the blood, the court determined:

Without question, one or more tubes of Mrs. Muncey’s blood spilled at some time. It is likely the spillage occurred prior to the receipt of the evidence by [the] laboratory hired by Mr. House’s trial attorney. Based upon the evidence introduced during the evidentiary hearing, however, the court concludes that the spillage occurred after the FBI crime laboratory received and tested the evidence.

... [T]he enzyme deterioration, as well as Mr. Muncey’s alleged confession and the blood spillage, does not negate the fact that Agent Scott saw what appeared to be bloodstains on Mr. House’s blue jeans when the jeans were removed from the laundry hamper at Ms. Turner’s trailer and that the blood was in fact from Mrs. Muncey.

Memorandum Opinion, February 16, 2000, at 45-46.

As indicated in the passage above, House not only presented evidence to the district court that undermined the case against him, he also offered an alternative theory of the crime: that Mr. Muncey killed his wife.

At the evidentiary hearing, House produced witnesses who testified about Mr. Muncey’s alcoholism and also his physical abuse of his wife. One acquaintance, Kathy Parker, testified that “[Mrs. Muncey] was constantly with black eyes and busted mouth.” A friend, Hazel Miller, testified that Mr. Muncey told her that he was going to get rid of his wife a few months before her death. In the district court, Mr. Muncey acknowledged that he “smacked” his wife at least once.

As for the day of the murder, Mr. Mun-cey was supposed to have helped to dig a grave. He had gone over to his father’s place, helped to work on some cars, and then dug the grave. However, rather than go home, he decided to attend the weekly dance at the C & C Recreation Center, where, according to his testimony, he stayed until midnight. When he arrived home, he found his wife missing.

Kathy Parker told the district court that Mr. Muncey visited her on a Friday in 1985 after the murder. Friends were sitting around drinking when Mr. Muncey “started crying and going on and rambling off.” According to Parker, he was “[t]alk-ing about what happened to his wife and how it happened and he didn’t mean to do it, but I don’t know exactly what all was said.” She went on, “[H]e said they had been into an argument and he slapped her and she fell and hit her head and it killed her and he didn’t mean for it to happen.” According to Parker, Mr. Muncey was drunk when he made this confession. After hearing it, Parker claimed, “I freaked out and run him off.” The next day Parker’s mother took her to the courthouse to tell someone about the confession. However, she “never did really get to talk to anybody.” When the district court asked her about the motivation behind her testimony in the evidentiary hearing, she replied, “An innocent man is in jail.”

On cross-examination, Parker testified that she had tried to come forward but no one seemed interested. She had had seven or eight beers on the night of the confession.

Parker’s sister, Penny Letner, also testified to having heard such a confession from Little Hube. Once again, she recalled that he was “pretty well blistered.” According to Letner, Mr. Muncey confessed to killing his wife when he returned home:

He said he didn’t mean to do it. That she was “bitching him out” because he didn’t take her fishing that night, that he went to the dance instead. He said when he come home that she was still on him pretty heavily “bitching him out” again and that he smacked her and that she fell and hit her head. He said I didn’t mean to do it, but I had to get rid of her, because I didn’t want to be charged with murder.

Letner had not been drinking. She was frightened by the talk and left the party. As a young mother of 19, she testified that she had been too scared to report the confession.

Based upon the statements of Letner and Parker, House posits the following scenario:

When Mr. Muncey got home, he and his wife resumed their fight. He hit her at least once and she fell. When he checked, he found that he had killed her. He took her body down by a creek running near their home and hid it with some brush and branches.

Whether Mr. Muncey ever went back to the dance is uncertain. Constable Wallace, who was providing security at the dance, testified that he never saw Mr. Muncey return after he left around 10:30 p.m. Mr. Muncey claimed during the hearing that he never left the dance until it broke up some two or more hours later.

Petitioner’s Brief at 33-34. House also points out that Dennis Wallace⁴ did not think that Mr. Muncey seemed upset when he reported his wife’s disappearance or when the body was recovered. Also, the morning after the murder, Mr. Muncey asked a neighbor, Artie Lawson, to tell people that he was at the dance. Since she had not attended it herself, Ms. Lawson declined. Her daughter, Mary Atkins, testified that she not only saw Little Hube at the dance, but that she saw him hit his wife.

The district court discounted the testimony of Letner and Parker, finding their testimony lacking in credibility:

The court is not impressed with the allegations of individuals who wait over ten years to come forward with their evidence. This is especially true when there was no physical evidence in the Munceys’ kitchen to corroborate his alleged confession that he killed her there.

Memorandum Opinion, February 16, 2000, at 45. Instead, the court credited the testimony of Laura Muncey Tharp, the victim’s daughter, who testified at both the trial and evidentiary hearing:

While in bed, she heard a deep voice saying her dad had been involved in a wreck next to the creek. Sometime later she and her brother got up and went looking for their mother. They went to the neighbors and looked up and down the driveway. She did not see anything out of the ordinary in the house; nothing was out of place and there was no sign of a struggle.

According to Ms. Tharp, her parents got along fine. They argued, but she did not recall any physical pushing or hitting. If they argued, she could hear them if she was in her bedroom. The family did not have air conditioning in the home. She did not hear any arguments that night.

The court found Ms. Tharp a very credible witness. She had no reason to lie. Her testimony during the evidentia-ry hearing was consistent with her trial testimony.

Memorandum Opinion, February 16, 2000, at 12-13.

As the preceding recitation makes clear, House has mounted a concerted attack on his conviction. Indeed, it is fair to say that he has presented a colorable claim of actual innocence. However, as the Supreme Court has made clear, that is not the standard that we are bound to apply. To prevail, House must do more than raise questions about the reliability of portions of trial testimony or the manner in which physical evidence was handled or analyzed; he must show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. Moreover, in weighing the new evidence we review the factual findings of the district court for clear error. Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir.2001).

The following facts that implicate House are undisputed: he lied to investigators about his whereabouts on the night of the murder; he gave inconsistent versions of the origins of the scratches and bruises on his hands and arms; he was seen near where the body was discovered on the day after the murder; he lied about what he was wearing on the night of the murder; blue jeans belonging to House, spattered with blood mixed with mud, were found at the bottom of Ms. Turner’s laundry hamper; House has a deep voice and Laura Muncey testified that the man who came to the trailer on the night of the murder had a deep voice; and, according to Ms. Sutton, the blood and mud found together on House’s blue jeans had been mixed together, which “certainly eliminates the possibility of any stains being created by contamination in an evidence container.” We note that the fact that mud may not have been present at the crime scene, and may have been scarce in the surrounding area, cannot be taken as proof that there was no mud anywhere on the route between Ms. Turner’s trailer and the scene of the crime.

With respect to House’s theory that Mr. Muncey committed the murder, we defer to the finding of the district court that Ms. Letner and Ms. Parker, who allegedly heard Mr. Muncey’s confession, were not credible. Furthermore, the content of Ms. Letner’s testimony, indicating that Mr. Muncey killed his wife upon returning to the trailer, is belied by the presence of the children in the trailer, who heard no such confrontation, and the lack of any signs of a struggle. House’s theory that a deep laceration cutting across Mrs. Muncey’s head was caused when she fell and hit her head is inconsistent with the testimony of Dr. Carabia, who indicated that the laceration could only have resulted from a violent blow. The fact that Mr. Muncey may have asked his neighbor to say that she saw him at the dance during the time of the murder is insufficient to tip the balance in favor of House’s theory.

Regarding House’s attacks on the scientific evidence that incriminated him, he has succeeded in showing that the semen attributed to him during the trial was that of Mr. Muncey and that, at some point, the blood evidence appears to have been mishandled, resulting in spillage. However, the fact that the semen found on the victim’s clothing came from her husband and not from House does not contradict the evidence that tends to demonstrate that he killed her after journeying to her home and luring her from her trailer, nor does the lack of any physical evidence of sexual contact contradict the notion that the murderer lured Mrs. Muncey from her home with a sexual motive. As for the mishandling of the blood evidence, the theory that the blood on House’s jeans came from the vials of blood gathered at Mrs. Muncey’s autopsy is based upon a speculative theory regarding enzyme degradation that was contradicted by other testimony in the record, and an analysis of the blood stain pattern does not demonstrate that the stains could not have resulted from Mrs. Muncey’s murder. The lack of any blood spatter on House’s shoes is inconclusive as well, because it is not clear when House took his shoes off. Finally, the district court’s conclusion that “the spillage occurred after the FBI crime laboratory received and tested the evidence” cannot be characterized as clearly erroneous. The only unchallenged blood evidence, the testimony indicating that the blood and mud on the jeans were mixed, tends to support the conclusion that House committed the murder.

Despite his best efforts, the case against House remains strong. We therefore conclude that he has fallen short of showing, as he must, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.

IV.

All of the issues before us having been decided, the judgment of the district court is affirmed.

1 . After returning from his "walk,” appellant suggested marriage to Ms. Turner for the first time in their relationship. It was at least arguable that he thought by this means her testimony could be rendered inadmissible by the husband-wife privilege.

2 . We note that throughout the proceedings in this case, the Tennessee courts have consistently used the term "waiver” to include the inadvertent loss of a right or privilege. As indicated in opinions by the United States Supreme Court, the term "waiver” ordinarily refers to a specific species of loss of right or privilege, namely, an intentional relinquishment or abandonment of a known right or privilege. Inadvertent, unintentional losses are normally covered under the broader term "forfeiture.” See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J. concurring)). Although forfeiture is the customary term for the kind of loss of right or privilege ascribed to House in the Tennessee courts, because we are describing state law, and the state courts claimed to be applying a "waiver” doctrine, we have labeled House’s loss of right or privilege a "waiver” as well.

3 . "Little Hube” was the nickname of the victim’s husband, Hubert Muncey.

4 . Dennis Wallace was the Chief of Police of Luttrell, the nearesttbwn.