Fourth Circuit Grants ‘SOS’ § 2254 Petition Attacking Three-Decade-Old Murder Conviction Based on New Evidence
The U.S. Court of Appeals for the Fourth Circuit granted permission for a state prisoner to file a second or successive (“SOS”) habeas corpus petition in the federal court to attack a three-decade-old murder conviction based on newly discovered evidence.
On August 23, 1985, a mother of two went missing in Lancaster County, Virginia. Four days later, police found her body tied to a cinderblock in the Rappahannock River. She had been strangled. Emerson Stevens, a local crabber, was implicated in her murder. He was tried and convicted for first-degree murder. After his appeals went nowhere, he filed postconviction challenges in state and federal courts, all without any success.
Over 30 years later, Stevens filed an application in 2019 seeking permission from the Fourth Circuit to file a SOS § 2254 petition in federal district court attacking his conviction based on a “box of materials” finally turned over to him by the Virginia State Police. He said he had been requesting this box for decades.
Stevens then pursued federal postconviction relief, again, even though by this time he had been paroled two years earlier by the State. He raised three claims in his application to the Fourth Circuit: the prosecution (1) presented false testimony and suppressed evidence that would have showed that testimony was false, (2) suppressed evidence showing a witness’ testimony about Stevens’ whereabouts on the day of the murder was false, and (3) withheld evidence that proved his innocence. He alleged that previously undisclosed FBI and police reports in the box supported his claims.
Represented by Jennifer Leigh Givens and Deirdre M. Enright of the Innocence Project at the University of Virginia School of Law, the Fourth Circuit found after oral argument that the box turned over all these years later indeed contained evidence enough to make a “prima facie showing” of Stevens’ innocence to allow another habeas petition.
To make this prima facie showing, Stevens had to show that his application, “on its face,” meets the following criteria: (1) “the factual predicate of the claim could not have been discovered previously through the exercise of due diligence,” and (2) “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 the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
While the Court found that Stevens met the low threshold to make this showing, it left any analysis of the claims in the first instance to the district court. However, Judge Thacker filed a concurring opinion “to explain in more detail” why Stevens met the strict standard to allow a SOS § 2254 petition, and why, in the judge’s opinion, “no reasonable jury would have convicted Stevens.”
For Stevens’ first claim, a prosecution expert testified that a weighed down body could have traveled 10 miles upstream over the four days in question. This testimony was critical because Stevens’ boat was seen docked 10 miles downriver from the body’s location the morning the victim was supposedly put in the water. But an FBI report in the box turned over to Stevens stated that the body “was dropped within 500 to 600 yards of where it was eventually located.” This contradicted the expert’s testimony. In Napue v. Illinois, 360 U.S. 264 (1959), the U.S. Supreme Court held that “knowingly using false evidence, including false testimony, to obtain a tainted conviction is a due process violation.” Judge Thacker said the prosecution should have known about this evidence.
Stevens’ second claim was that one of his coworkers, who had testified that he was late for work the day of the murder, was wrong. The FBI report in the box stated that the witness said Stevens “picked him up [on the day of the murder] … to go crabbing at the usual time of 5:20 - 6:00 am.” Under Napue, “it is a constitutional violation to allow false testimony to go uncorrected,” Judge Thacker wrote.
And for Stevens’ third claim, Judge Thacker focused on three facts. First, the medical examiner “curiously” changed the findings of death after talking to law enforcement, adding “cutting wounds” as a second cause of death. But the medical examiner then filed a sworn affidavit that the wounds were caused by a boat propeller after death. The prosecution had said Stevens made those cuts with a knife found in his truck. Second, only one piece of evidence was used to tie Stevens to the crime – a hair found on his coat. Relying on microscopic hair analysis, an expert testified that the hair was a match. “But microscopic hair comparison analysis is now considered scientifically invalid and unreliable,” Judge Thacker wrote. Virginia recognized as much back in 2012. And third, a witness who had testified that Stevens’ truck was near the victim’s house at the time of the murder has since pleaded guilty to obstruction of justice for providing false testimony in the case.
“I simply cannot see how any reasonable factfinder could convict in this case,” Judge Thacker concluded in support of the Court granting Stevens’ permission to file another habeas petition in the district court.
Related legal case
In re Stevens
|Cite||956 F.3d 229 (4th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|