On second try, defendant may file for habeas based on new evidence

Evidence disclosed by the Commonwealth of Virginia in October 2016 that could not have been previously discovered through due diligence supported the defendant’s arguments that, but for a constitutional error, no reasonable factfinder would have found him guilty of first-degree murder and abduction. He was granted authorization to file a second habeas petition.

Background

Over three decades ago, a Virginia state court tried and convicted Emerson Eugene Stevens of first-degree murder and abduction with intent to defile. Stevens was paroled in 2017 but continues to challenge his convictions. Many years ago, we rejected Stevens’s first federal habeas application. But he now seeks to file another federal habeas application attacking his convictions. According to Stevens, new evidence disclosed by Virginia in 2016 proves his innocence.

Before Stevens can file this successive habeas application, he must obtain authorization from this court.

Analysis

A successive applicant must “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” The court of appeals may grant this authorization only if the applicant has made a prima facie showing that his claim (1) was not presented in a prior federal habeas application and (2) falls within one of the two narrow paths set forth in § 2244(b)(2) to challenge his conviction.

The first path, provided in § 2244(b)(2)(A), requires that a claim rely on a new and retroactive constitutional rule that was previously unavailable. The second path, set forth in § 2244(b)(2)(B), demands that “(i) the factual predicate of the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

Stevens relies on new factual predicates to satisfy § 2244(b)(2)(B). At this stage, he need not convince us that he will ultimately satisfy this provision’s strict dictates. All he must do is make a prima facie showing that he can do so. To make this prima facie showing, Stevens relies on the “box of materials” first disclosed to him in October 2016. He contends that he could not have discovered the evidence in the box through the exercise of due diligence. And he contends that this evidence provides the factual predicate for the three claims he now seeks to raise.

First, Stevens argues that new evidence in an undisclosed FBI report shows that the commonwealth presented false testimony from Dr. Boone about how the victim’s body may have moved in the Rappahannock River and that it suppressed the exculpatory FBI evidence that undermines that testimony. Second, Stevens argues that new police records addressing Earl Smith’s statements reveal that the commonwealth presented false testimony from Smith about Stevens’s routine the morning after the murder and that it suppressed the exculpatory information from Smith that undermines that testimony as well. And third, Stevens alleges that the commonwealth suppressed at least seven pieces of exculpatory evidence found in the “box of materials.”

Based on the record and arguments before us, we hold that Stevens has made a prima facie showing that his application satisfies § 2244(b)(2)(B)’s requirements. We therefore grant him authorization to file a successive habeas application in the district court.

Motion granted.

Concurring opinion

Thacker, J., concurring:

I agree entirely with the majority view that Stevens has made a prima facie showing that the contents of the October 2016 box of documents, which form the basis of his three claims, were not previously available to him. However, given the facts of this case, I find it important to fully address the second and third requirements — constitutional error and establishing that, in light of the “evidence as a whole,” no reasonable factfinder would have found Stevens guilty.

In re: Emerson Eugene Stevens, No. 19-305, April 15, 2020. 4th Cir. (Richardson). Jennifer Leigh Givens for Movant, Matthew P. Dullaghan for Respondent. VLW 020-2-095. 17 pp.