In re Dailey

949 F.3d 553

IN RE: James DAILEY, Petitioner.

No. 19-15145-P

United States Court of Appeals, Eleventh Circuit.

Filed: January 30, 2020

Carol Wright, Assistant Federal Public, Federal Public Defender's Office, Tampa, FL, for Petitioner.

Ashley Moody, Attorney General's Office, Criminal Division, Tampa, FL, for Successive Habeas Respondent.

Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b)

Before ED CARNES, Chief Judge, WILSON, and WILLIAM PRYOR, Circuit Judges.

ED CARNES, Chief Judge:

In 1987 James Dailey was convicted of murdering 14-year-old Shelly Boggio and sentenced to death. In the 33 years since Dailey’s trial, he has filed a direct appeal, four state postconviction motions, two state habeas petitions, two federal habeas petitions, one Rule 60(b) motion, and one Rule 60(d) motion.¹ In none of them did he succeed in convincing a court to vacate his conviction. Now with his execution drawing near,² Dailey asks this Court for authorization to file yet another federal habeas petition so that he can raise an actual innocence claim, a Brady claim, and an ineffective assistance of counsel claim. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.").

Our authority to grant Dailey’s application is restricted by the AEDPA, which limits the filing of second or successive petitions in several ways. First, any claim a state prisoner raises in a second or successive petition must be new, meaning it cannot have been presented in an earlier petition. 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed."). Second, even a new claim brought in a second or successive petition shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for 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.

28 U.S.C. § 2244(b)(2)(A)–(B). We may authorize the filing of a second or successive petition only if we determine that the applicant has made "a prima facie showing" that his claims are new and fall within one of those exceptions. Id. § 2244(b)(3)(C) ; see also In re Holladay, 331 F.3d 1169, 1173–74 (11th Cir. 2003) (holding that an applicant satisfies the prima facie standard only if "in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition").

Dailey contends that all three of his claims are new and fall within the exception set out in § 2244(b)(2)(B) because they depend on newly discovered evidence: (1) an Indian Rocks Beach police report summarizing a recorded interview with Oza Shaw, a man who was with Dailey and Shelly Boggio on the night of the murder; (2) audio recordings of interviews, including Shaw’s, conducted by law enforcement; (3) criminal and incarceration records of three jailhouse informants who testified at Dailey’s trial, as well as letters that they sent to the prosecutor in Dailey’s case; (4) fact and expert opinion affidavits and records about the "unduly suggestive interrogation techniques" that were used in Dailey’s case "to interrogate witnesses and to manufacture jailhouse informant testimony"; (5) fact affidavits casting doubt on Dailey’s confession to a jailhouse informant that he committed the murder; and (6) affidavits signed in 2017 and 2019 by Jack Pearcy, another man who was with Dailey and Shelly Boggio on the night of the murder, in which Pearcy states that he alone killed Boggio.

I. ACTUAL INNOCENCE CLAIM

Dailey contends that the newly discovered evidence proves he is actually innocent of murdering Shelly Boggio and that, as a result, it would be unconstitutional to execute him. See Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ("assum[ing], for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional"). As a preliminary matter, it is "not settled whether a freestanding actual innocence claim is viable in a capital case on federal habeas corpus review." Johnson v. Warden, Ga. Diagnostic & Classification Prison, 805 F.3d 1317, 1324 (11th Cir. 2015). The Herrera Court merely assumed, without deciding, that such a claim would be viable. Herrera, 506 U.S. at 417, 113 S.Ct. 853. But even if we also assume that such a claim is viable, Dailey cannot raise an actual innocence claim in his successive petition for three independently adequate reasons.

A. Dailey Has Already Raised an Actual Innocence Claim

First, § 2244(b)(1) provides that a "claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." That means this Court may not grant a federal habeas petitioner authorization to file a second or successive petition that only recycles an already-raised claim.

In re Williams, 898 F.3d 1098, 1099 (11th Cir. 2018) ("For applications requesting authorization to file a second or successive petition pursuant to § 2254, this Court has consistently applied § 2244(b)(1) to prohibit the filing of a claim that is the same as a claim presented in a petitioner’s initial habeas petition before the district court."); In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016) (applying the same rule "where a prisoner seeks leave to file a second or successive habeas motion based on a claim we rejected in a previous application seeking such leave").

That rule bars Dailey’s actual innocence claim. In 2007, when Dailey filed his first federal habeas petition, he claimed that he was entitled to a new trial because he had newly discovered evidence proving that Pearcy murdered Shelly Boggio while Dailey was at home in his bedroom. Doc. 1 at 53–54.³ The district court dismissed that claim, concluding both that "actual innocence is not itself a constitutional claim," and that even if it was, Dailey could not meet the "extraordinarily high" threshold the Court contemplated in Herrera. Dailey v. Sec’y Fla. Dep’t of Corr., No. 8:07-cv-1897, 2008 WL 4470016, at *3 (M.D. Fla. Sep. 30, 2008) (quotation marks omitted) (granting in part the government’s motion to dismiss petitioner’s habeas petition).⁴ In his current application, Dailey again contends that he has newly discovered evidence that will prove that Pearcy murdered Shelly Boggio while Dailey was at home in his bedroom.

The only difference between this claim and the one he made in 2007 is some of the evidence each claim relies on. In 2007, Dailey pointed to Shaw’s testimony from the state post-conviction proceedings and to Pearcy’s 1993 deposition. Doc. 1 at 53–56. Here, Dailey also points to, among other things, the Indian Rocks Beach police report, audiotaped interviews of Shaw and Bailey, records and affidavits relating to his jailhouse confessions, and Pearcy’s 2017 and 2019 affidavits.

As we have repeatedly held, however, new evidence does not a new claim make, not for purposes of § 2244(b)(1). See In re Hill, 715 F.3d 284, 292 (11th Cir. 2013) (holding that a petitioner cannot "convert his previously asserted claim into a wholly new claim merely by coming forward with new supporting evidence or even new legal arguments") (quotation marks omitted); In re Mills, 101 F.3d 1369, 1371 (11th Cir. 1996) (denying an application to file a second or successive petition with claims supported by new affidavits because the claims had been "presented in a prior petition").

Instead, what matters for purposes of § 2244(b)(1) is whether "the basic thrust or gravamen" of the petitioner’s legal argument is the same. See In re Williams, 898 F.3d at 1099. And in this case, it is. At bottom, Dailey is asserting the same thing he asserted in 2007: that he is and always has been innocent of murdering Shelly Boggio, so the Constitution requires that the judgment against him be set aside. Any new evidence he is submitting is merely supportive of that same claim; it is not the basis of a new one. See In re Hill, 715 F.3d at 293. As a result, Dailey has not made a prima facie showing that his claim survives § 2244(b)(1) ’s new claim requirement.

B. Dailey Has Not Identified a "But For" Constitutional Violation

Second, even if Dailey’s actual innocence claim were new, he would still have to make a prima facie showing that he can meet the requirements set out in § 2244(b)(2)(B) before we could permit him to file that claim in a successive petition. He has not, and he cannot do so.

Section 2244(b)(2)(B)(ii) requires that when an applicant seeks to file a claim based on newly discovered evidence, as Dailey does here, he must show "clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense." We have explained that this provision requires two showings: (1) "clear and convincing evidence of actual innocence," and (2) another, separate "constitutional violation." In re Davis, 565 F.3d 810, 823 (11th Cir. 2009).

And that "separate constitutional violation" cannot be an actual innocence claim. See Johnson, 805 F.3d at 1324 (describing this as an "actual innocence plus...