Submitted April 16, 2014.
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Appeal from United States District Court for the Western District of Arkansas - El Dorado.
For Ray Dansby, Petitioner - Appellant: Scott Braden, Assistant Federal Public Defender, Josh Lee, Assistant Federal Public Defender, Julie Vandiver, Assistant Federal Public, FEDERAL PUBLIC DEFENDER'S OFFICE, Little Rock, AR.
Ray Dansby, Petitioner - Appellant, Pro se, Grady, AR.
For Ray Hobbs, Director, Arkansas Department of Correction, Respondent - Appellee: Christian Harris, Lauren Elizabeth Heil, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Little Rock, AR.
Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
Ray Dansby was convicted by a jury in Arkansas on two counts of capital murder and sentenced to death. The district court denied his application for a writ of habeas corpus. Dansby initially appealed on five claims covered by a certificate of appealability, and asked this panel to expand the certificate with respect to four other claims. After we filed our opinion on that appeal, Dansby petitioned the Supreme Court for a writ of certiorari. The Court granted certiorari, vacated our judgment, and remanded for further consideration in light of Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). See Dansby v. Hobbs, 133 S.Ct. 2767, 186 L.Ed.2d 215 (2013). We expanded the certificate of appealability to include all claims that the district court ruled were procedurally defaulted. We now affirm in part, vacate the dismissal of Claims II and III in Dansby's second amended petition, and remand for further proceedings.
As summarized by the Arkansas Supreme Court, see Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (Ark. 1995), the evidence at trial showed that on the morning of August 24, 1992, Dansby arrived at the residence of Brenda Dansby, his ex-wife, in El Dorado, Arkansas. Justin Dansby, their nine-year-old son, was in the living room with Ronnie Kimble, Brenda's boyfriend. Justin was home with a cold and watching television, while Kimble was asleep on the couch. Brenda had left earlier to buy orange juice for Justin, and when she returned home, she was confronted by Ray as she pulled her car into her driveway. Ray twice ordered her to leave her car, and she eventually complied. Justin testified at trial that he saw Ray hold Brenda " like a shield" before shooting her in the arm and in the neck.
Greg Riggins, a neighbor from across the street, also offered an account of Brenda's death. According to his trial testimony, Riggins went to his front door after hearing gunshots and witnessed Ray and Brenda struggling with a revolver. He then saw Ray knock Brenda down, get the gun from her, and shoot two consecutive rounds into her from two or three feet away. Brenda tried to rise, and Ray fired again, although Riggins believed the shot missed. After pausing for five or six seconds, Ray shot Brenda once more, and her body went flat.
Justin testified that Ray then entered the home and shot Kimble in the chest, at which point Kimble got his own gun from beneath the couch. Kimble positioned
himself behind the couch and attempted to return fire, but his gun only produced " clicking sounds." Ray chased Kimble to the back of the house, and Justin heard about five more shots. When Justin went to investigate, he saw his father standing over Kimble, kicking him twice and then saying something Justin could not remember. Justin accompanied his father outside the house, where he saw his mother, motionless, with " blood all over her neck." Ray and Justin walked down the road, and after they separated, Justin called the police.
El Dorado police officers arrived at Brenda's home to find her body outside. They also found an injured Kimble on the floor of the back bedroom, along with a jammed .38 automatic pistol lying under him. Kimble eventually died of his wounds at a local hospital, but not before telling a police detective that Ray Dansby had shot him.
Later the same day, Officer Mike Stegall came upon Ray Dansby, who said, " I'm Ray Dansby, ya'll are looking for me." Stegall asked Dansby whether he was carrying any guns, and Dansby answered that he had thrown them away. Stegall then took Dansby to the police station, where Lieutenant Mike Hill advised him of his rights. Dansby stated that he had left the scene with two guns, a .32 revolver and a .38 revolver, but had disposed of them where the police would never find them. By Dansby's account of the day's events, he had armed himself before traveling to Brenda's home because he knew both she and Kimble had handguns. Dansby explained that he had entered the front door to Brenda's home to find Kimble holding a handgun in his right hand " pointed down," and Dansby stated that after an argument ensued, " I just pulled my gun and started shooting." After making these statements, Dansby submitted to a gunshot residue test and signed a written rights waiver form, but he declined to provide a tape-recorded statement.
At trial, prosecutors presented several pieces of evidence beyond the eyewitness testimony of Justin Dansby and Greg Riggins. The autopsy revealed gunshot wounds near Brenda's left ear and on her upper chest; similar wounds were found on Kimble's chest, right arm, and left upper back, behind his left ear, and superficial wounds were present on his left flank. The jury also heard testimony that Dansby was scheduled to appear in court on charges of second-degree assault and contempt of court at 9:00 a.m. on the day of the murders, and that state prosecutors brought these charges after Brenda had provided them with a signed affidavit alleging that Dansby had assaulted her.
Also testifying for the prosecution was Dansby's jail cellmate Larry McDuffie, the boyfriend of Dansby's half-sister. McDuffie said Dansby admitted in jail that he had murdered Kimble and Brenda. According to McDuffie, Dansby told him he was " just glad" that Brenda was dead. McDuffie also testified that in response to Brenda's pleas for mercy, Dansby answered, " well b__ you done f__- up cause I'm not gonna leave you out here in these streets when I done killed this man inside."
An Arkansas jury convicted Dansby of two counts of capital murder on June 11, 1993, and sentenced him to death by lethal injection on both counts. The Arkansas Supreme Court affirmed the conviction and sentence. Dansby, 893 S.W.2d at 331. Dansby petitioned for postconviction relief under Arkansas Rule of Criminal Procedure 37, claiming ineffective assistance of counsel. The trial court denied the petition, and the Arkansas Supreme Court affirmed. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (Ark. 2002).
Pursuant to 28 U.S.C. § 2254, Dansby filed a petition for a writ of habeas corpus in the district court. The district court denied relief on all claims and dismissed the petition. The court then denied Dansby's motion to alter or amend the judgment. Dansby sought a certificate of appealability, and the district court granted a certificate on three claims: that Dansby is actually innocent of the murders of Brenda and Kimble, that improper testimony at trial about Dansby's postarrest silence violated his constitutional rights, and that the evidence offered at trial was insufficient to establish premeditation and deliberation. An administrative panel of this court expanded the certificate of appealability to include Dansby's claims that the State failed to disclose material, exculpatory evidence concerning witness Larry McDuffie, and that the trial court impermissibly limited impeachment of McDuffie at trial in violation of Dansby's rights under the Confrontation Clause. After the Supreme Court's remand, we expanded the certificate of appealability to encompass all claims the district court had determined to be procedurally defaulted and requested supplemental briefing.
Dansby's broadest claim (Claim I of the second amended petition) is that new evidence discovered after trial shows that he is actually innocent of murder. On that basis, he argues that the conviction and sentence violate his rights under the Eighth Amendment. Dansby says the new evidence--including documents allegedly withheld by the State and a statement in which prosecution witness McDuffie purportedly recants his trial testimony--would allow him to impeach McDuffie's credibility and establish that Dansby acted in lawful self-defense when he killed Brenda and Kimble.
The Supreme Court has not decided whether a persuasive demonstration of actual innocence after trial would render unconstitutional a conviction and sentence that is otherwise free of constitutional error. See House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The Court has established, however, that the threshold for any such claim, if it were recognized, would be " extraordinarily high." Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The threshold, if it exists, would require " more convincing proof" than the " gateway" standard that allows for consideration of otherwise defaulted constitutional claims upon a showing of actual innocence. House, 547 U.S. at 555; see Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Thus, on a freestanding claim of actual innocence, it is not sufficient that a petitioner shows even that it is " more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327. The " extraordinarily high" threshold, if recognized, would be even higher. House, 547 U.S. at 555.
In its order denying relief, the district court treated this claim as a challenge to the sufficiency of the evidence. When Dansby argued in a motion to alter or
amend the judgment that the court misconstrued his claim, the court explained that if it had reached a freestanding actual innocence claim on the merits, then the claim would have failed. The court reasoned that the only evidence proffered in support of actual innocence was impeachment evidence regarding prosecution witness McDuffie, and that a jury could have believed McDuffie even with the new evidence. The court also said that the new evidence, at most, might have established reasonable doubt, but it could not show that no reasonable juror would have found Dansby guilty. There was ample other evidence that negated Dansby's claim of self-defense, the court observed, and it would not have been unreasonable for a juror to reject Dansby's defense even without McDuffie's testimony.
We, too, conclude that Dansby's proffered evidence does not meet the extraordinarily high threshold that might support relief based on a showing of actual innocence. As the district court observed, much of the new evidence is designed to undermine the credibility of prosecution witness McDuffie. Latter-day impeachment evidence, however, " will seldom, if ever," make a clear and convincing case that no reasonable jury could believe the core of the witness's account. Sawyer v. Whitley, 505 U.S. 333, 349, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Here, moreover, we agree with the Arkansas Supreme Court that there was substantial evidence apart from McDuffie's testimony that permitted a jury to infer that Dansby killed the victims in a premeditated and deliberate manner. Dansby, 893 S.W.2d at 336. The alleged new evidence cited by Dansby with regard to witnesses other than McDuffie, App. A16-A20, does not compel a conclusion that Dansby acted in lawful self-defense. Some of these facts might be disbelieved or discounted by a reasonable juror; others can be reconciled reasonably with the prosecution's theory of the case. Dansby's submission of new evidence would not meet an extraordinarily high threshold for proof of innocence. The district court thus did not err in rejecting this claim without a hearing.
Dansby also contends that the evidence at trial was insufficient to show that he murdered Brenda and Kimble with premeditation and deliberation. This is Claim XIV of the second amended petition. Dansby raised a challenge to the sufficiency of evidence on direct appeal, and the Arkansas Supreme Court rejected it. The Arkansas court said " [t]he test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict," 893 S.W.2d at 335, and ultimately concluded that the evidence of premeditation and deliberation was " overwhelming." Id. at 336. Where the state court has adjudicated a constitutional claim on the merits, a petitioner must demonstrate that the state court's decision was " contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
Dansby argues for the first time on appeal that § 2254(d) does not apply. He contends that the Arkansas court did not adjudicate his constitutional claim on the merits, but instead resolved the sufficiency-of-evidence contention on state-law grounds only. He points out that the state court applied a " substantial evidence" standard, which this court once said is " arguably different than the due-process standard enunciated" in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Nance v. Norris, 392 F.3d 284, 289 (8th Cir. 2004). Jackson held that the Due Process Clause forbids a conviction when " no rational trier of fact
could have found proof of guilt beyond a reasonable doubt." 443 U.S. at 324.
We believe that Dansby's constitutional claim was adjudicated on the merits, and that the deferential standard of § 2254(d) applies. Unlike Nance v. Norris, where the state court " specifically disclaim[ed] addressing constitutional arguments," 392 F.3d at 289, the Arkansas Supreme Court did no such thing in Dansby's direct appeal. In prior decisions, the Arkansas court has explained its view that the substantial-evidence standard applied in Arkansas cases is consistent with Jackson :
The substantial-evidence standard, while not explicitly reciting the standard from Jackson word for word, requires that evidence supporting a conviction must compel reasonable minds to a conclusion, and force or induce the mind to pass beyond suspicion or conjecture, and, thereby, ensures that the evidence was convincing to a point that any rational fact-finder could have found guilt beyond a reasonable doubt.
Williams v. State, 351 Ark. 215, 91 S.W.3d 54, 61 (Ark. 2002) (emphasis added) (internal citations omitted). There is thus no reason to believe that the Arkansas Supreme Court in Dansby's direct appeal adjudicated only a state-law claim while leaving the constitutional due process claim unaddressed. The court adjudicated the two claims together.
Viewing the evidence in the light most favorable to the State, the state court reasoned as follows:
Although the testimony is at variance among different witnesses as to the exact sequence of events during the shootings, there was much said as to the weapons used, and as to the nature, extent, and location of Ms. Dansby's and Mr. Kimble's wounds. With reference to the shots fired into Brenda, Dr. Peretti testified that he located gunshot wounds near the left ear and upper chest of her body. Greg Riggins, an eye witness to Brenda's murder, testified as to Ray's hesitation of several seconds before he fired the final shot into Brenda's head. In observance of the wounds to Ronnie's body, Dr. Peretti testified that Ronnie sustained wounds to the left ear, chest, left upper back, and right arm, as well as two superficial wounds to the left flank. Particularly, it was Dr. Peretti's opinion that the wound to Ronnie's back occurred when he was " probably bent over." Ray's son Justin, another eye witness, testified that he watched as his father kicked Ronnie twice, and that he heard his father say something after shooting him. In light of this testimony, the jury could have easily inferred that Dansby fired multiple shots into both victims in a premeditated and deliberated manner.
Dansby, 893 S.W.2d at 336. After considering Larry McDuffie's testimony that Dansby admitted to planning the murders, the court viewed the evidence as " overwhelming." Id.
We conclude that the decision of the Arkansas Supreme Court was not contrary to, or an unreasonable application of, Jackson. It is not necessary for the state court to cite the relevant Supreme Court precedent, see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam), so long as the decision satisfies the criteria of § 2254(d). The Arkansas court concluded that the evidence was " of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture." Dansby, 893 S.W.2d at 336. This was not an unreasonable way for a state court to ensure that a rational trier of fact could have found the requisite elements beyond a reasonable doubt. The evidence here
surpassed the constitutional threshold with room to spare. The district court properly rejected Dansby's due process claim based on sufficiency of the evidence.
Dansby next appeals the district court's denial of relief on his claim (Claim VI) that improper testimony and comment on his postarrest silence violated his right to due process under the Fourteenth Amendment. The claim arises from the following testimony at trial by Lieutenant Mike Hill of the El Dorado Police Department.
COUNSEL FOR STATE: Did [Dansby] appear to understand his rights as you verbally advised . . .
COUNSEL FOR STATE: . . . him of them?
WITNESS: Yes, he did.
COUNSEL FOR STATE: And did you have a conversation with him about these events at all?
WITNESS: Yes, after I informed him, of course, that he had the right to remain silent. Anything he said could be used against him in a court of law, and that, you know, if he wanted a lawyer present during questioning he could have one. And I asked him if he understood that at any time, you know, that he didn't wish to talk any longer he didn't have to.
I said or I asked him it's very important that we find this gun. I said anyone could pick this gun up. What did you do with it? At that point he began to tell me that he left the scene with two guns, a .32 and a .38, both revolvers. And that he threw them away where we would never find 'em and he wasn't worried about anybody finding 'em.
After obtaining the gunshot residue kit, I sat down at my desk and again informed him of his rights. This time I read to him his rights from the standard waiver form that we use which he again acknowledged that he understood and signed the form.
COUNSEL FOR STATE: I'll show you what's been marked previously as State's Exhibit No. 2, and ask you if you can identify this, please [handing to witness].
WITNESS: Yes, this is the form that I read to Ray Dansby that morning. It's noted here at the top 9:00 a.m., at the bottom 9:14 a.m. which would have been the time that I read directly to him from the form and that he signed it.
COUNSEL FOR STATE: Okay. And then at some point did he also decline to talk ?
WITNESS: Yes, at 9 : . . .
COUNSEL FOR DEFENDANT: Objection.
WITNESS: . . . 21 a.m.
COUNSEL FOR DEFENDANT: Objection.
THE COURT: What's your objection?
COUNSEL FOR DEFENDANT: May we approach?
Trial R. 803-04 (emphases added).
At a bench conference, Dansby's counsel objected that it was impermissible for Hill to refer to Dansby's invocation of his right to remain silent. She moved for a mistrial. The trial court did not hear Hill " say anything about anybody invoking anything," and denied the motion for mistrial. Id. at 805. The court directed the prosecution to admonish Hill that he should not " make any reference or comment about any rights being invoked or about the defendant refusing to ...