The Honorable Harold D. Vietor, U nited States District Judge for the Southern 1 District of Iowa. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-3829

___________ Robert A. Cornell, *
* Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa. Crispus Nix, Warden, ISP, *
* Appellee. *

___________ Submitted: June 13, 1996 Filed: July 16, 1997

___________ Before HANSEN, ROSS, and JOHN R. GIBSON, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Rober t A. Cornell appeals the district court's denial of his Rule 60(b), Fed. R. 1 Civ. P., motion to reopen his petition for habeas corpus filed under 28 U.S.C. § 2254OnApril 24, 1996, after the parties filed briefs in this case, President Clinton 2 signed the Anti-T errorism and Effective Death Penalty Act of 1996, Pub. L. No. 104- 132, sec. 106, 1996 U.S.C.C.A.N. 1214, 1220-21. This Act works changes to section 2254, see Felker v. Turpin , 116 S. Ct. 2333 (1996), b ut has no specified effective date. Since Congress passed th e Act, however, neither party has argued that the Act should be applied here, and we thus c onsider the issue waived. See Johnson v. Baldwin , 114 F.3d 835 , 839 n.2 (9th Cir. 1997); Emerson v. Gramley , 91 F.3d 898, 900 (7th Cir

. 19 96), cert. denied , 117 S. Ct. 1260, 1289 (1997); Davis v. Executive Director , 10 0 F.3d 750, 75 5 n.1 (10th Cir. 1996), cert. denied , 117 S. Ct. 1703 (1997). In Lindh v. Murphy , No. 96-6298, 1997 WL 338568, *8 (U. S. June 23, 1997), the Supreme Court heldthat the "new provisions of chapter 153 generally apply only to cases filed after the Act became effective."

-2- (1994). The petition attacked Cornell's 1976 first-degree murder conviction on tw o

2 grounds: first, that new evidence showed Cornell was actually innocent of the crime,

an d second, that the prosecution unconstitutionally had suppressed exculpator y evi dence. In an en banc decision, we rejected on the merits Cornell's claim based on suppression of evidence. Cornell v. Nix , 976 F.2d 376, 382-84 (8th Cir. 1992) (e n banc), cert. denied , 507 U.S. 1020 (1993). We also held that his claim of actua l innocence was proced

urally defaulted, and that he had not demonstrated cause for his default. Id. at 380-81. Moreover, applying the standard of Sawyer v. Whitley , 50 5 U.S. 333, 350 ( 1992), we held that his procedural default could not be excused under the f undamental miscarriage of justice exception. 976 F.2d at 381-82. Later, th e Supreme Cour

t decided Herrera v. Collins , 506 U.S. 390 (1993), pertaining to claims of actual innocence made as a substantive ground for relief, and Schlup v. Delo , 513 U.S. 298 (1995), pertaining to the standard of proof for claims of actual innocenc e made for procedural purposes. Cornell then brought a R ule 60(b) motion on the theory that Schlup worked a change in the law that would have affected the outcome of his-3-

case, and t

hat this change constituted "extraordinary circumstances" warranting relief from our earlier judgment. Th e district court denied his motion. We affirm the district court's denial of relief.

Cornell was convicte d in Iowa state court of first-degree murder and sentenced to life impr isonment for the 1976 killing of Kenneth Crow. The principal witnes s against Corn ell was his fourteen-year-old half-brother, Glenn Albert Oliver, who was riding in a car with Cornell and Crow before the killing. Albert saw Cornell and Crow leave the car together and go into the woods, and later heard a shot. When Cornel l

re turnedto the car alone, Albert asked Cornell if "he did what I think he did," an d Corn ell answered, "Yes, does it bother you?" Two other witnesses, Eric Lynn Cross and Cornell's half-brother, Bryce Oliver, testified that Cornell told them after the fact not to worry about Crow, that he and Crow had had a fight and Crow had a broke n neck. Cornell 's defense at trial was that Crow had left the car alive after an argument with Cornell and had stolen Cornell's gun; his theory was that Bryce Oli ver actually had committed the killing. See Cornell , 976 F.2d at 378.

The Iowa Supreme Court affirmed Cornell's conviction and sentence on direct appeal. State v. Cornell , 266 N.W.2d 15 (Iowa), cert. denied , 439 U.S. 947 (1978). He filed a habeas petition, which was denied. Cornell v. Iowa , 628 F.2d 1044 (8th Cir. 1980), cert . denied , 449 U.S. 1126 (1981). He also applied for post-conviction relief in the I owa courts. One of his grounds for relief was that Eric Lynn Cross had sent a letter to the state recanting his trial testimony. At the time of the state post-conviction proc eedings, Cross was not available as a witness, and so the letter came in only t o show that the state had received such a letter. The state offered into the record th e statement of Robert

Pontious, a state investigator, who said he had interviewed Cross about the letter, and that Cross said he signed it because Cornell had threatened him. The Iowa Court of Appeals ordere d a new trial on the ground that the prosecution had suppressed evidence, Cornell v. Sta te , No. 87-69 (Iowa Ct. App. Apr. 20, 1988). The-4-

Iowa Supreme Court reversed the Court of Appeals, holding that the suppresse d evidence was not material. Cornell v. State , 430 N.W. 2d 384, 386-87 (Iowa 1988).

Corn ell filed a second habeas petition in 1988, raising the suppression o f exculpa tory evidence claim. Cornell later sought to supplement the record to include

a1989 affidavit from Cross, recanting Cross's trial testimony and denying that Cross had b een interviewed by Pontious after writing the 1977 letter. The district court denied the motion to supplement the record with the 1989 affidavit, but we reversed, ordering an evidentiary hearing on whether the recantation was newly discovere d evidence that woul d "probably produce an acquittal on retrial," warranting a new trial under our (pre- Herrera ) case of Mastrian v. McManus , 554 F.2d 813, 823 (8th Cir.), cert. denied , 433 U.S. 913 (197 7). Cornell v. Nix , 921 F.2d 769, 771 (8th Cir. 1990). After an evidentiary hearing, the district court con cluded that the new evidence and the suppressed evidence toget

her did warrant a new trial. However, our en banc decision reversed the district court's decision and denied Co rnell's application for writ of habeas corpus. 976 F.2d at 380-84.

In our en banc decision, we held that Cornell had committed procedural default by failing to raise the matters covered in the 1989 Cross affidavit in state court and that he had not demo nstrated cause for this default. Id. at 380-81. We then reasoned that his procedural default could be excused only if he demonstrated that a fundamenta l miscarriage of justice

would result from our refusal to hear his claim and that to do so he must show t hat he was "actually innocent." Id. at 381. We held that the prope r gauge of "actual innocence" in this context was the test stated in Sawyer v. Whitley , 50 5 U.S. at 350. This test would require Cornell to show by clear and convincin g evidence that, but for a constitutio nal error, no reasonable juror would have found him guilty. 967 F.2d at 381. Reviewing the evidence de novo, we held that Cornell did not esta blish"by clear and convincing evidence that but for the alleged errors, n o reasonable juror would have convicted him." Id. at 382. Therefore, Cornell's clai m based on the 1989 affidavit was barred from review.-5-

Cornell's other claim, that the prosecution suppressed exculpatory evidence, was not procedurally barred. We rev iewed that claim on the merits and concluded that the allegedly suppressed evidence was not material. Id. at 384.

Three years after our en banc decision, the Supreme Court decided Schlup v

. Delo , 513 U.S. 298, a case that came to the Supreme Court on certiorari from thi s circuit. In Schlup , the prisoner had filed a second petition, claiming ineffectiv e assistance of counsel. He could not show cause and prejudice for failing to include the claim in his first petition, but he claimed that he was excused from doing so since newly discovered e vidence showed he was innocent of the murder for which he had bee n
con victed. This court had held that Schlup could not overcome the procedural bar to consideration of his claim on the me rits because he did not meet the applicable burden of es tablishing by "clear and convincing evidence" (the Sawyer standard) that n o reasonable juror would have convicted him in light of the n ew evidence, and we denied Schlup relief. Schlup v. Delo , 11 F.3d 738, 743 (8th Cir. 1993), rev'd , 513 U.S. 298 (1995).

The Supr eme Court reversed, explaining that we should have judged Schlup' s claim under the standard from Murray v. Carrier , 477 U.S. 478, 492 (1986), tha t required a petitioner to show that the constitutional error "probably" resulted in th e convicti onof one who was actually innocent, rather than the Sawyer standard. Se e Schlu p , 513 U.S. at 323-32. To establish the requisite probability under Carrier , the petitioner must show that "it is more likely than not that no reasonable juror would have convicted him i n the light of the new evidence." Id. at 327. The Court explained this was the correct test to app ly when considering whether a petitioner has shown "actual innocence" where the claim of innocence does not by itself provide a basis for relief, bu t instead provides "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 31 5 (quotation omitted).-6-

Af ter the Supreme Court decided Schlup , pointing out the Eighth Circuit' s misunderstanding of the level of proof necessary to establish innocence to excus e procedu ral default, Cornell filed a Rule 60(b) motion, seeking to have his habea s proceedings reopened on the basis of "extraordinary circumstances." Th e extraordinary circumstance he alleged was the change in this circuit's law wrought by Schlup . The district court denied th e Rule 60(b) motion because the court did not consider itself to have the po wer to enter an order contrary to what we had instructed it to do in our en banc decision.

On appeal , Cornell argues that under Schlup we must evaluate his newl y discov ered evidence claim under the less demanding "more likely than not" standard, and that if we do so, we will conclude that his procedural default should be excused. Ru le 60(b) allows a court to grant relief from a final judgment or order. Se e Mohammed v. Sullivan , 866 F.2d 258, 260 (8th Cir. 1989) (habeas co rpus proceeding). "[Rule 60(b)] is properly invoked where there are extraordinary circumstances, o r where the judgment may work an extre me and undue hardship, and should be liberally

con struedwhen substantial justice will thus be served." Id. (quotation omitted). " A post -judgment

change in the law having retroactive application may, in specia l circumstances, constitute an extraordinary circumstance warranting vacation of a judgment." Id. (quoting Matarese v. LeFevre , 801 F.2d 98, 106 (2d Cir. 1986) (habeas

cor pus proceeding), cert. denied , 480 U.S. 908 (1987)); see also Ritter v. Smith , 811 F.2d 1398 , 1401 (11th Cir.), cert. denied , 483 U.S. 1010 (1987). "We think i t particul arly appropriate for the district court to entertain a Rule 60(b)(6) motion o n grounds of a retroactive change in the law in the context of a habeas cor pus proceeding, in whi ch 'conventional notions of finality of litigation have no place.'" Matarese , 801 F.2d at 106 ( quoting Sanders v. United States , 373 U.S. 1, 8 (1963)). Cornell i s serving a life sentence. In discussing equitable considerations, we cannot ignore the fact that lifetime imprisonment under a mistaken legal ruling is a "quintessential-7-

miscarr iage of justice." See Schlup , 513 U.S. at 324 (referring to execution of a n innocent person).

Here, Co rnell argues that Schlup is a material change in the law previousl y applied by this court in his case. We thus analyze Schlup to determine if it is a change in the law constituting sufficient extraordinary circumstances to warrant relief from a judgment under Rule 60(b).

Cornell's claim for relief is that the new evidence of Cross's recantation shows tha t he is actually innocent of the crime. When this court heard Cornell's appeal i n 1990, we ordered an evidentiary h earing on both the newly discovered evidence claim andthe suppression of evidence claim. 921 F.2d at 771. When the case reappeared before us en banc after the evidentiary hearing, we dis posed of the Brady claims on the merits, holding that the suppressed evidence wa s immaterial. 976 F.2d at 382-84. We also held that Cornell's new evidence did not meet the Sawyer standard that required Cornell to show by "clear and convincing" evidence that no reasonable juror woul d have convicted him in the light of new evidence and thus concluded that his procedural default could not be excused. Id. at 381-82.

Because this court has disposed of the Brady claims on the merits, only th e newly discovere d evidence claim could be resurrected by reopening the case to apply Schlup

. This remaining claim is a Herrera -type free standing claim of innocence , unconnected to any other constitutional violation. Whether Cornel l's procedural default woul d be excused under Schlup is irrelevant because his substantive Herrera clai m requires a strong er showing of innocence than Schlup demands. Cornell's reliance on Schlup in his 60(b) motion is thus misplaced.
Schlupexplained that a petitioner's request for relief beca use of actual innocence

can be ba sed on different grounds and that the level of proof required to establis h "actual innocence" depends upon the type of ground the petitioner bases his or herJustice White, concurring separately, stated that the standard for a Herrera claim 3 ought "at the very least" to be as stringent as the Jackson v. Virginia , 443 U.S. 307, 324 (1979), standard (i.e. no rational trier of fact c ould find the petitioner guilty). 506 U.S. at 4 29. Schlup specifically stated that the Jackson standard is higher even than th e Sawyer standard we applied in our en banc decision in Cornell's case. 513 U.S. at 323 n.38.

-8- petition for relief. Of particular relevance to this cas e, Schlup described the difference between Sc hlup's procedural claim of actual innocence and the substantive claim o f actual in nocence raised in Herrera v. Collins , 506 U.S. 390 (1993). In Herrera , th e petitioner asserted that because he was actual ly innocent of the crime for which he had been conv icted, his execution would constitute cruel and unusual punishment i n violation of the Eighth Amendment and violate the Fourteenth Amendment's Du e Process Clause. See id. at 398. Herrera assumed, without deciding, that "in a capital

case a t ruly persuasive demonstration of 'actual innocence' made after trial woul d render the execution of a defendant unconstitutional." Id. at 417. Herrera , however, didnot establish the exact level of proof that would hypothetically be required for a substantiv e claim based on actual innocence because Herrera did not come close t o meeti ng this standard. The Court, however, stated that the standard would b e "extraordinarily high." Id. ; accord id. at 426 (O'Connor, J., concurring). 3

In contrast, Schlup' s constitutional claims were not based on his innocence, but inst ead on his argument that the ineffectiveness of his counsel under Strickland v

. Washing ton , 466 U.S. 668 (1984), and the prosecutor's withholding of evidence i n violat ionof Brady v. Maryland , 373 U.S. 83 (1963), denied him constitutiona l protec tions. See Schlup , 513 U.S. at 314. Schlup, however, faced procedura l obs tacles to these claims. In cases where the petitioner has filed a successive o r abusive writ, or where he or she has committed a procedural default, if the petitioner cannot establ ish cause and prejudice, he or she can obtain review of his or he r constitutional claims only by showing that he or she falls wit hin a narrow class of cases implicating a fundamental m iscarriage of justice. Proving "actual innocence" is a way-9-

t o demonstrate that one's case falls within that narrow class. See id. at 314-15. This type of "actual innocence" is not a substantive claim in itself, but is a "gateway " through which a petitioner

must pass to obtain review of defaulted substantive claims. In Schlup , the petitio ner's claim of innocence was not a basis for his relief; instead his actua lrelief would be based on the validity of his Stricklandand Brady claims

. Schlup's innocence claim thus was "'not itself a constitutional claim, but instead a gateway th rough which a habeas petitioner must pass to have his otherwise barre d constitutional claim considered on the merits.'" Id. at 315 (quoting Herrera , 506 U.S. at 404).
Because Schlup's claim of ac tual innocence was accompanied with an assertion of constit utional error at trial, the court held that Schlup's procedural default could be excused only if he could show that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup , 513 U.S. at 327. The Court explained that Schlup's claim of innocence need not meet as high a standard as that imposed on Herrera's substantive claim of innocence.

Sc hlup's evidence of innocence need carry less of a burden [than a Herrera claimant]. . . . . . . If there were no question about the fairness of the criminal trial,
a Herrera -type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup' s innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup's guilt t o undermine confidence in the result of the trial without assurance that that trial was untainted by constitutional error, Schlup's threshold showing of inn ocence would justify a review of the merits of the constitutiona l claims.

Id . at 316-17.-10-

While t he Supreme Court did not clearly articulate the quantum of proo f necessary for a claim based solely on actual i nnocence when it drew the distinction we quote above, it is evident that such claims require that the court be "convinced tha t th ose new facts unquestionably establish [the defendant's] innocence." Id. Cornell , however, argues that we should apply to his claim t he Schlup -gateway standard, which only req uires that the new facts raise sufficient doubt about his guilt to undermin e confiden ce in the result of the trial. This argument, however, provides no relief t o Cornell, because regardless of whether he can sati sfy the Schlup -gateway standard, his substantive claim must still meet the Herrera standard, which requires him to show new evidence that "unquestionably establishes" his innocence.

In our en ba nc decision we held that Cornell had not established by clear an d convincing evidence that no reasona ble juror would have convicted him. Even though late r Schlup establishes that this was the wrong standard to apply in the procedura l defau lt context, our holding nevertheless establishes that Cornell cannot meet th e Herrera standard of proof. In Allen v. Nix , 55 F.3d 414 (8th Cir.), cert. denied , 116 S. Ct. 574 (1995), we reiterated the Sup reme Court's description of the Herrera standard: "a Herrera -type claim would have to fail unless

. . . new facts unquestionably establish the petitioner's innocence ." Id. at 417. Thus our task is to consider how the clear and convin cing evidence standard compares to Herrera 's "unquestionably establish " standard. The Supreme Court has considered the meaning of the clear and convincin g evidence st andard in civil contexts other than habeas corpus. In Colorado v. Ne w Mexico the Supreme Court stated that the clear and convincing evidence standar d "place[s ] in the ultimate factfinder an abiding conviction that the truth of its factua l contentions are highly probable." 467 U.S. 310, 316 (1984) (quotation omitted). I n Cruzan v. Director, Missouri Department of Health , 497 U.S. 261 (1990), the Supreme Court labeled the clear and convincing evidence standard as an "intermedi ate standard,"

see id. at 282, and observed that in the termination of life context the New JerseyCf. Bowman v. Gammon , 85 F.3d 1339, 1342 (8th Cir.), cert. denied , 117 S. 4 Ct. 1273 (1996).
In Carrige r v. Stewart , 95 F.3d 755, 757 (9th Cir. 1997), the Ninth Circui t 5 interpreted the "unquestionably establ ish innocence" phrase to require the petitioner to "prove actual innocence . . . by clear and c onvincing proof." In other words, the Ninth

-11- Supreme Court had defined clear and convincing evidence as "evidence whic h 'produces in the mind of the trier of fact a firm be lief or conviction as to the truth of the allegatio ns sought to be established, evidence so clear, direct and weighty an d convincing as to enable the factfinder to c ome to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" Id. at 285 n.11 (quoting In re Jobes , 52 9 A.2d 434, 441 (N.J. 1987))

. See also Travelhost, Inc. v. Blandford , 68 F.3d 958, 961 (5th Cir. 1995) (applying the New Jersey Supreme Court's definition discussed i n Cr uzan and observing that the clear and convincing evidence standard is higher tha n th e preponderance of the evidence standard, but not as high as beyond a reasonabl e doubt standard); In re Medrano , 956 F.2d 101, 102 (5th Cir. 1992) (applying the New Jersey Supreme Court's de finition discussed in Cruzan ); Buildex Inc. v. Kason Indus., Inc ., 849 F.2d 1461, 1463 (Fed. Cir. 1988) (clear and convincing evidence standard lies betwe en "beyond a reasonable doubt" and "preponderance of the evidence" an d applying Colorado 's definition of clear and convincing evidence).
Though not susceptible to precise definition, see id. at 1463, Cruzan refers to the clear an d convincing evidence as an "intermediate standard" and Colorado indicate s that itis an even more exacting standard. We believe that the Herrera burden w e reitera ted in Allen v. Nix as requiring the petitioner to show "new facts tha t unquestionably establish the petitioner's innocence," 55 F.3d at 417, is at least a s 4 exacting as the clear and convincing evidence standard, and possibly more so

. Accor dingly, our en banc holding that Cornell had not met the clear and convincin g evi dence standard is sufficient to bar a holding that Cornell has unquestionabl y established his innocence. 5Circuit interpreted Herrera to require exactly the quantum of proof that we earlier held Cornell failed to produce. The Ninth Circuit, however, granted rehearing of the case
en banc. 106 F.3d 1415 (9th Cir. 1997). The case was argued March 27, 1997. An
en banc op inion has not been filed as of the date of the filing of this opinion. Se e generally Barry Friedman, Failed Enterp rise: The Supreme Court's Habeas Reform , 83 Cal. L. Rev. 485, 503-12 (1996).

-12- Since Cornell's only remaining substantive claim requires a showing of inn ocence at least e qual to the clear and convincing evidence Sawyer standard, and we hav e alre ady held en banc that Cornell did not meet this standard, he cannot prevail on the merits of his petition. Therefore, it would be in vain to reopen the cas e, even if Cornell made a sufficient showing to excuse his procedural default. Because our earlier denial of Cornell' s claim for relief will not be changed in light of Schlup , Rule 60(b) relief is inappropriate here.
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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