Tuesday, April 19, 2011

Petitioner may amend successive 2255 motion; Court must consider all evidence

United States v. MacDonald, No. 08-8525 (4th Cir. Apr. 19, 2011):

The facts.

After petitioner was convicted of murder, a U.S. Marshall ("Britt") came forward with exculpatory evidence (the "Britt claim").  The Fourth Circuit granted petitioner permission to file a successive § 2255 motion on the Britt claim.  While the § 2255 motion was pending before the district court, DNA results became available.  Petitioner moved the district court---without seeking or obtaining further prefiling authorization from the Fourth Circuit---to add a second claim to the § 2255 motion.

Petitioner sought to add the DNA evidence for two purposes.  First, petitioner sought to add the DNA evidence for the purpose of raising a freestanding actual innocence claim.  Second, petitioner sought to add the DNA evidence as part of the "evidence as a whole" in assessing the Britt claim under § 2255.  See 28 U.S.C. § 2255(h)(1) (providing that successive § 2255 motion must contain "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense").

The district court denied the DNA motion on the ground that the court lacked jurisdiction because petitioner failed to secure additional prefiling authorization from the Fourth Circuit.  The Fourth Circuit holds that the district court erred in assessing the Britt claim by taking an overly restrictive view of what constitutes the "evidence as a whole," and further erred in renouncing jurisdiction over the DNA claim.

Which standard applies?

The district court erred in assessing the Britt claim by applying the standard of 28 U.S.C. § 2244(b)(2)(B)(ii), rather than § 2255(h)(1). As the Fourth Circuit explained in United States v. Winestock, § 2244(b)(2) sets forth the controlling standard for state prisoners, and § 2255(h) spells out the standard applicable to those in federal custody. Nonetheless, the standards of § 2244(b)(2)(B)(ii) and § 2255(h)(1) are quite similar. Because of the similarities between § 2244(b)(2)(B)(ii) and § 2255(h)(1), the district court's error in identifying the controlling standard was probably harmless. Nevertheless, the district court committed prejudicial error by taking an overly restrictive view of what constitutes the "evidence as a whole" for purposes of either § 2244(b)(2)(B)(ii) or § 2255(h)(1). Thus, the Fourth Circuit remanded for a proper § 2255(h)(1) assessment of the Britt claim.

What constitutes the "evidence as a whole"?

The district court erred by prohibiting expansion of the record to include evidence received after trial and after the filing of petitioner's § 2255 motion. Simply put, the "evidence as a whole" is exactly that: all the evidence put before the court at the time of its § 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation. A court must such evidence without regard for its admissibility under the rules of admissibility that would govern at trial. That being said, a court must give due regard to any unreliability of the evidence, and the court may have to make some credibility assessments.

Accordingly, even in the absence of the Fourth Circuit's further prefiling authorization for additional evidence, a court must consider (1) evidence obtained following the Fourth Circuit's grant of prefiling authorization for the successive § 2255, (2) evidence that had been submitted with prior unsuccessful postconviction motions, and (3) evidence obtained since the filing of prior postconviction motions. Consideration of such evidence does not improperly relitigate earlier claims and does not constitute redundant evidence.

The court should not confuse a petitioner's proffered evidence with a petitioner's claim for relief. In this case, petitioner's submitted the evidence both as freestanding claims as well as supporting evidence for the Britt claim. To the extent that it supported the Britt claim, the district court should have considered it.

Furthermore, a district court can consider the freestanding claims to the extent that the approved successive § 2255 is appropriately amended to include the new claims.

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