Farrar v. Raemisch

924 F.3d 1126

Charles FARRAR, Petitioner - Appellant,

v.Rick RAEMISCH, Executive Director, Colorado Department of Corrections; Cynthia Coffman, Attorney General, State of Colorado ; James Falk, Warden, Sterling Correctional Facility, Respondents - Appellees.

Scholars of Federal Habeas Corpus, Amicus Curiae.

No. 18-1005

United States Court of Appeals, Tenth Circuit.

FILED May 21, 2019

Gail K. Johnson, Johnson & Klein, PLLC, Boulder, Colorado, for the Petitioner - Appellant.

Ryan A. Crane, Senior Assistant Attorney General, Denver, Colorado (Cynthia H. Coffman, Attorney General, with him on the briefs), for Respondents - Appellees.

Aurora Temple Barnes, Lewis Roca Rothgerber Christie, LLP, Denver, Colorado (Kenneth F. Rossman, IV, Lewis Roca Rothgerber Christie, LLP, Denver, Colorado, with her on the briefs), for Amicus Curiae.

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Charles Farrar, a Colorado state prisoner, appeals the district court’s denial of his petition for habeas relief. In district court, Mr. Farrar claimed

• actual innocence,

• deprivation of due process based on the recantation of a key prosecution witness, and

• deprivation of due process based on a state appellate decision establishing an overly restrictive standard for a new trial.¹

The district court denied relief, and we affirm based on three conclusions:

1. Actual innocence does not supply a freestanding basis for habeas relief.

2. A private citizen’s false testimony does not violate the Constitution unless the government knows that the testimony is false.

3. The alleged error in the Colorado Supreme Court’s decision does not justify habeas relief.

I. Mr. Farrar is convicted and seeks post-conviction relief.

Mr. Farrar’s convictions stemmed from complaints of sexual abuse. The victim was Mr. Farrar’s stepdaughter, who complained of the alleged abuse when she was in the eighth grade. Based on the girl’s account, state officials charged Mr. Farrar with over twenty counts. Mr. Farrar denied the allegations. At the trial, the girl’s testimony supplied the prosecution’s only direct evidence of Mr. Farrar’s guilt. The jury found Mr. Farrar guilty of numerous counts of sexual assault and one count of child abuse, and the state trial court sentenced Mr. Farrar to prison for a minimum of 145 years and a maximum of life.

Mr. Farrar appealed. While the appeal was pending, the girl recanted her trial testimony. Given the recantation, the Colorado Court of Appeals granted a limited remand to the trial court so that Mr. Farrar could move for a new trial. After Mr. Farrar filed that motion, the trial court conducted evidentiary hearings, where the girl testified that she had fabricated her allegations of sexual abuse. Nonetheless, the trial court denied the motion on the ground that the recantation was not credible.² Mr. Farrar appealed again, and the Colorado Court of Appeals affirmed the denial of the motion for a new trial.³

On certiorari, the Colorado Supreme Court affirmed. Farrar v. People , 208 P.3d 702, 709–10 (Colo. 2009). The court deferred to the trial court’s credibility determinations and clarified Colorado’s standard for a new trial:

Rather than merely creating reasonable doubt by demonstrating that the recanting witness has given different and irreconcilable testimony on different occasions, recantation can justify a new trial only if it contains sufficiently significant new evidence, and if it, rather than the witness’s inconsistent trial testimony, will probably be believed.

Id. at 707–08 (internal citations omitted).

Mr. Farrar then unsuccessfully sought post-conviction relief in state court, which led to this habeas case.

II. We engage in de novo review without applying 28 U.S.C. § 2254(d).

In habeas cases, we engage in de novo review of the district court’s legal ruling. Hooks v. Workman , 689 F.3d 1148, 1163 (10th Cir. 2012). When applying de novo review, however, we must consider the applicability of statutory deference under 28 U.S.C. § 2254(d). See id. This provision states that a federal court can grant habeas relief only if the state appeals court acts contrary to a Supreme Court precedent, unreasonably applies that precedent, or unreasonably determines the facts. 28 U.S.C. § 2254(d)(1)–(2). If § 2254(d) applies, Mr. Farrar and the amici argue that it would be unconstitutional.

Section 2254(d) does not apply. This section applies only when a state appellate court has adjudicated the merits of a constitutional claim. Byrd v. Workman , 645 F.3d 1159, 1164 n.7 (10th Cir. 2011) ; Hooks v. Ward , 184 F.3d 1206, 1223 (10th Cir. 1999). But the Colorado Supreme Court didn’t adjudicate the merits of Mr. Farrar’s constitutional claims. Instead, the court simply held that based on Colorado’s standard for granting a new trial, the denial of Mr. Farrar’s motion had fallen within the trial court’s discretion. Farrar v. People , 208 P.3d 702, 706–10 (Colo. 2009). Because the Colorado Supreme Court didn’t adjudicate the merits of the constitutional claims, we do not apply § 2254(d).⁴ Hooks , 184 F.3d at 1223.

III. Habeas relief cannot be based on actual innocence, a private citizen’s false testimony, or the Colorado Supreme Court’s definition of the state-law test for granting a new trial.

Mr. Farrar argues that

• he is actually innocent,

• the girl’s false testimony violated his right to due process, and

• the Colorado Supreme Court committed a due-process violation by establishing an overly restrictive standard for the grant of a new trial.

We reject these arguments.

A. Actual innocence and false testimony by a private citizen do not entitle Mr. Farrar to habeas relief.

Mr. Farrar alleges that he is actually innocent and his conviction was based on false testimony. But even if these allegations are true, they would not entitle Mr. Farrar to habeas relief.

1. Our precedents disallow habeas relief based on freestanding claims of actual innocence.

A distinction exists between claims of actual innocence used as a gateway and as a freestanding basis for habeas relief. As a gateway, a claim of actual innocence "enable[s] habeas petitioners to overcome a procedural bar" in order to assert distinct claims for constitutional violations. McQuiggin v. Perkins , 569 U.S. 383, 386, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013).⁵ Because gateway claims are "procedural, rather than substantive," they do not "provide a basis for relief." Schlup v. Delo , 513 U.S. 298, 314–15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). By contrast, a freestanding claim asserts actual innocence as a basis for habeas relief. See House v. Bell , 547 U.S. 518, 554, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) ; Dist. Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).

The Supreme Court has repeatedly sanctioned gateway actual innocence claims, but the Court has never recognized freestanding actual innocence claims as a basis for federal habeas relief. To the contrary, the Court has repeatedly rejected such claims, noting instead that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings." Herrera v. Collins , 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In rejecting such claims, the Court has observed that "[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence." Id. at 401, 113 S.Ct. 853.⁶

We have thus held that actual innocence does not constitute a freestanding basis for habeas relief. See Vreeland v. Zupan , 906 F.3d 866, 883 n.6 (10th Cir. 2018) (denying a certificate of appealability because freestanding assertions of actual innocence cannot support habeas relief); LaFevers v. Gibson , 238 F.3d 1263, 1265 n.4 (10th Cir. 2001) ("[A]n assertion of actual innocence ... does not, standing alone, support the granting of the writ of habeas corpus."); Sellers v. Ward , 135 F.3d 1333, 1339 (10th Cir. 1998) ("[T]he claim of innocence ... itself is not a basis for federal habeas corpus no matter how convincing the evidence."). So Mr. Farrar’s freestanding claim of actual innocence does not entitle him to habeas relief.

2. The due-process claim (based on the girl’s false testimony) fails because Mr. Farrar does not allege that the government knew that the testimony was false.

For habeas relief, Mr. Farrar must show a constitutional violation in his conviction or sentence. 28 U.S.C. § 2241(c)(3). Here, he alleges a denial of due process when he was convicted based on the girl’s false testimony.

The Fourteenth Amendment’s Due Process Clause prevents the government from knowingly using perjured or false testimony at trial. See Giglio v. United States , 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Napue v. People of State of Ill. , 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But here, Mr. Farrar does not allege that the government knowingly elicited any false trial testimony. According to Mr. Farrar, the Second and Ninth Circuits have authorized habeas relief even when the government unwittingly elicits false testimony. See, e.g. , Hall v. Dir. of Corr. , 343 F.3d 976, 981–85 (9th Cir. 2003). Mr. Farrar asks us to do the same.

But we have rejected that approach. In our circuit, federal habeas relief cannot be based on perjured testimony unless the government knew that the testimony was false.⁷ For example, when a witness testified that the defendant had participated in a murder but the witness later recanted, we rejected the viability of a constitutional claim, reasoning that the defendant had "failed to assert any evidence indicating prosecutors knew [the witness’s] testimony was false."⁸

Our circuit’s approach precludes habeas relief based on Mr. Farrar’s allegations. He alleges that the girl’s testimony was false, but he...