### The Honorable John B. Jones, United States District Judge 1 

### for the District of South Dakota, sitting by designation. The Honorable Garnett Thomas Eisele, United States District 2 

### Judge for the Eastern District of Arkansas. _____________ No. 95-1852

_____________ Eugene Wallace Perry, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Larry Norris, Director, * Arkansas Department of * Correction, * * Appellee. *

_____________ Submitted: January 13, 1997 Filed: February 27, 1997

_____________ Before BOWMAN and MURPHY, Circuit Judges, and Jones, District Judge

. 1

_____________

MURPHY, Circuit Judge.

Eugene W allace Perry appeals the denial of his second petition fo r habeas corpus. After conducting two evidentiary hearings the distric t court denied his successive petition. We affirm.

2

Perry w as convicted and sentenced to death for the 1980 murders o f Kenneth Staton and Su zanne Ware who were robbed and shot in their jewelry store in Van Buren, Arkansas. After pursuing re lief in state court, Perry filed a petition for habeas corpus in

### 2

federal court in 1983, which was denied. Perry v. Lockhart , 871 F.2d 1384 (8th Cir.), cert. denied , 493 U.S. 959 (1989). In 1990 he filed a second habeas petition in which he claimed he was actually innocent of the murder s and that his Sixth Amendment rights were violate d when the trial court did not compel defense witnesses to testify. Includ ed with that petition were the un sworn statements of Marion Pruett, who is also on death row i n Arka nsas, in which Pruett claims that he committed the murders. Th e district court held a n extensive evidentiary hearing and wrote a thorough opinion that carefull y examined Pruett's statements as well as the entire record and concluded there was "no likelihood of Mr. Perry's being innocen t of the capital murders." Perry v. Norris , 879 F. Supp. 1503, 1582 (E.D. Ark. 1 995). The court also held that the defense witnesses were no t "suffic iently material" to warrant compulsory process under the Sixt h Amendment. Id. at 1514. The district court did not permit Perry to amend his second habeas petition with claims of ineffective assistance of counse l and Brady violations since there was no "procedural gateway" that woul d allow it to consider new claims. Id. at 1582.

After he filed an appeal from the denial of his second petition , Perry submitted two additional documents. One was an affidavit of Mar k Gardener, who is also on death row, which stated that some evidenc e implicating Perry had been fabricated. The seco nd was the sworn statement of Marion Pruett, which contained essentially the same information that ha d been submitted in his earlier unsworn statements. The case was the n remanded to the district court so it could consider whether furthe r proceedings were necessary to examine this material. The district court found the Gardener affidavit contained false sta tements and held a hearing regardi ng Pruett's new statement. At that hearing, Pruett refused t o testify

. The district court then concluded that neither the Gardene r affidavit nor Pruett' s sworn statement would affect its earlier decision.

### At oral argument, Perry's attorney stated that his claim of 3 

### actual innocence was not presented to provide an independent basis for habeas relief. Had Perry made that argument, it would fail since he has not satisfied the lesser burden necessary to provide a gateway through which his habeas petition could be considered. He therefore could not meet the higher standard necessary to support any free-standing claim. See Schlup v. Delo , 115 S. Ct. 851, 861 (1995); Griffin v. Delo , 33 F.3d 895, 908 (8th Cir. 1994).
3 Perry contends that Pruett's statement proves that he is actuall y innocent o f the murders and therefore there is no precedential bar t o consideration of the constitutional violations alleged in his second habea s petition

. Perry also claims he is entitled to amend his second habea s

3 petition.

A p etition for a writ of habeas corpus will be examined even i f otherwise procedurally barred if the petitioner is able to demonstrate tha t
a miscarriage of justice would occur were the petition not considered

. This exception requires the petitioner to presen t new reliable evidence of his innocence and to prove that no reasonable juror would have found him guilty. Sc hlup v. Delo , 115 S. Ct 851, 865, 868 (1995). The factua l findings of the district court will stand absent clear error. McDonald v. Bowersox , 101 F.3d 588, 592 (8th Cir. 1996).

The district court found Pruett's sworn statement and unswor n statements unreliable, and there was much evidence to support this finding

. Pruett, who is on death row in Arkansas for kidnapping and murder, has bee n convicted of murder in two other states and has confessed to other killing s and other violent crimes. Pruett has sought payment for his testimony, an d ther e is evidence that he seeks attention and wealth from his story , including a television appearance and a contract to publish a book about the se murders. Pruett's statement is not credible on its face for i t includes an enormous amount of detail not normally found in statements of past

### For example, Pruett's statement contains detailed 4 

### information on the precise location of a motorcycle parked near the jewelry store where the murders took place, the pattern and condition of the tablecloth that was used to muffle the sound of the gun, the clothes the victims were wearing, the jewelry taken from the victims' persons and the jewelry left on their bodies.
4 experience. The unsworn statements were made nine years after the murders 4 (the sworn statement was made fifteen years after the murders). All of th e detai l contained in the statements was either part of the trial recor d reflected in the transcript or could have been obtained from Perry, who ha d opportunities to discuss the murders with Pruett . Finally, the government
was n ot able to scrutinize the veracity of the sworn statement becaus e Pruett refused to be cross-examined.

Th ere was a large amount of evidence in the record demonstratin g Perry's guilt. Perry's defense was that he was not in Arkansas when the murder s were committed, but there was considerable evidence to th e contrary. Perry was identified as being in the parking lot of the shoppin g cent er where the murders took place on the day of the murders. He wa s identifie d as carrying a gun and rope with him as he left an Arkansa s camp site he had been staying at one or two days before the murders. A wit ness testified that Perry returned to the campsite after the murder s wit h two bags of jewelry. Police investigation of the campsite and a camper that a witness said had been at the camps ite revealed a jewelry tag and other things from the store. A witness testified she had dropped Perr y off at a local hotel on the day of the murders, and the police found a matchbook from that hotel in the searched camper. When arrested, Perry ha d on him two rings that had been taken from the store.

The dist rict court did not err in denying Perry's petition becaus e he failed to demonstrate that no reasonable juro r would find him guilty of the murder of Kenneth Staton and Suzanne Ware.

### Perry did not attempt to show cause and prejudice to excuse 5 

### his failure to raise the claims earlier. They were not raised in his first petition, and he filed the amendments nearly five years after submitting his second petition and over two years after the first evidentiary hearing on that petition.
5 See Schlup v. Delo , 1 15 S. Ct. 851, 868 (1995). Neither did the district court abuse its discretion in denying Perry's motion to amend his petition

. Perry attempted to raise new claims as part of h is second habeas petition. Since he did not demo nstrate his actual innocence, Schlup did not provide
a gatewa y through which his successive claims could be reviewed. 5 Amendment of the petition would therefore have been futile. See Perkins v. Spivey , 911 F.2d 22, 34 (8th Cir. 1990).
The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.