Rhodes v. Smith

Background

The Eighth Circuit authorized Thomas Daniel Rhodes to file a second habeas petition in the district court on July 6, 2017. Rhodes filed the petition on August 29, 2017. After a hearing, Magistrate Judge Becky R. Thorson recommended denying the petition but granting Rhodes a certificate of appealability, which is a court authorization to seek appellate review of specified issues. Rhodes and the State each objected to the recommendation.

Rhodes’s objections

Rhodes argued that the court’s analysis under 28 U.S.C. § 2244(b)(2)(B)(ii) should be limited to the evidence presented at trial and the new evidence he offered. He objected to consideration of a 2014 affidavit from Dr. Michael McGee, who reaffirmed the opinions and conclusions from his trial and postconviction testimony.

The court rejected that argument. It held that the statute did not limit the court to evidence offered by the habeas petitioner and that the court could consider the entire evidentiary record. The court also concluded that Dr. McGee’s affidavit was connected to the alleged constitutional errors at trial and could be considered in deciding whether the court had authority to consider the second petition.

Rhodes also argued that the court could not weigh equivocal language or weaknesses in his new expert reports until a new trial or evidentiary hearing. The court disagreed, explaining that although the facts supporting the claim are treated as proven for the statutory analysis, the court may consider weaknesses and inconsistencies when deciding whether clear and convincing evidence shows that no reasonable factfinder would have convicted him. The court also rejected Rhodes’s objection that the new evidence was insufficient to undermine the conviction because that objection repeated arguments already addressed in the recommendation.

The State’s objections

The State argued that Rhodes’s new scientific evidence did not distinguish his current due-process claim from a claim presented in his first federal habeas petition. The court overruled that objection, explaining that the successive-petition bar applies to a claim previously presented but does not require dismissal of a claim based on different facts. The court concluded that the new scientific evidence concerning drowning forensics gave Rhodes’s current claim a different factual basis.

The State also objected to granting a certificate of appealability. The court held that reasonable judges could disagree about both the new-evidence analysis and whether Rhodes had shown a constitutional violation. It therefore granted a certificate of appealability as to the analysis under § 2244(b)(2)(B)(ii).

Ruling

The court stated that it did not need to decide the petition’s additional timing and procedural-default issues. It reasoned that, if Rhodes satisfied the clear-and-convincing-evidence requirement in § 2244(b)(2)(B)(ii), that showing could allow consideration of claims otherwise barred by procedural default or the filing deadline. The court adopted the report and recommendation in full, denied Rhodes’s petition for a writ of habeas corpus, and granted a certificate of appealability consistent with the recommendation. Judge Joan N. Ericksen entered judgment accordingly.

Classification

This is a procedural order because the ruling concerned the statutory requirements for pursuing a second habeas petition and did not decide the underlying due-process claim on its merits.