PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-305
In re: EMERSON EUGENE STEVENS,
Movant.
On Motion for Authorization to File a Second or Successive Petition for a Writ of Habeas Corpus, Under 28 U.S.C. § 2244.
Argued: January 29, 2020 Decided: April 15, 2020
Before FLOYD, THACKER, and RICHARDSON, Circuit Judges.
Motion granted by published opinion. Judge Richardson wrote the opinion, in which Judge Floyd and Judge Thacker joined. Judge Thacker wrote a separate concurring opinion.
ARGUED: Jennifer Leigh Givens, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Movant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent. ON BRIEF: Deirdre M. Enright, The Innocence Project, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Movant. Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent. RICHARDSON, Circuit Judge:
Over three decades ago, a Virginia state court tried and convicted Emerson Eugene
Stevens of first-degree murder and abduction with intent to defile. Stevens was paroled in
2017 but continues to challenge his convictions. Many years ago, we rejected Stevens’s
first federal habeas application. But he now seeks to file another federal habeas application
attacking his convictions. According to Stevens, new evidence disclosed by the
Commonwealth of Virginia in 2016 proves his innocence.
Before Stevens can file this successive habeas application, he must obtain
authorization from this court. 28 U.S.C. § 2244(b)(3)(A). And we may authorize that
application only if Stevens makes a prima facie showing that he satisfies § 2244(b)(2)’s
threshold requirements. Id. § 2244(b)(3)(C). Because we conclude that Stevens has
cleared this initial hurdle on the path to habeas relief, we authorize him to file his successive
application in the district court.
I.
On August 23, 1985, a twenty-four-year-old mother of two went missing in
Lancaster County, Virginia. Four days later, police found her body in the Rappahannock
River—strangled and weighed down with a cinderblock. Virginia police tied the murder
to Stevens, a local crabber on that same river. A jury convicted Stevens of first-degree
murder and abduction with intent to defile. The Court of Appeals of Virginia affirmed the
jury’s verdict, and the Supreme Court of Virginia declined to hear Stevens’s appeal.
Having exhausted his options for a direct appeal, Stevens sought state habeas relief
based on the prosecution’s improper closing argument and failure to disclose exculpatory 2 evidence. The state court rejected this application. And the Virginia Court of Appeals
denied Stevens’s appeal as untimely.
Turning next to federal court, Stevens filed his first application for federal habeas
relief. The district court denied his application, and a panel of the Fourth Circuit dismissed
Stevens’s appeal for having no merit. Stevens v. Greene, 991 F.2d 791 (4th Cir. 1993)
(unpublished).
Over twenty years later in 2016, Stevens returned to state court and filed another
application for state habeas relief. Only three days after filing, law enforcement authorities
informed Stevens’s counsel that they had newly discovered a “box of materials.” This box,
not previously disclosed, contains the evidence Stevens claims he has been requesting for
decades. And this evidence, according to Stevens, shows his innocence and undermines
his convictions. Based on these materials, Stevens amended his second state habeas
application.
Not long after the Commonwealth found the box of materials, Stevens was granted
parole. After he was released from prison, Stevens continued to seek habeas relief in state
court. 1 And for a second time, the state court denied Stevens’s application for habeas relief.
Stevens’s appeal of that denial was again rejected by the Supreme Court of Virginia.
1 Although an applicant must be “in custody” to seek federal habeas relief, 28 U.S.C. § 2254(a), the Supreme Court determined that a parolee satisfies this requirement when “the custody and control” of a parole authority “involves significant restraints on a petitioner’s liberty.” Jones v. Cunningham, 371 U.S. 236, 242 (1963); see also Wilson v. Flaherty, 689 F.3d 332, 336 (4th Cir. 2012). As with other potential issues, we leave this question for the district court. 3 Stevens now comes to us, seeking authorization under 28 U.S.C. § 2244 to file a
successive § 2254 application for federal habeas relief. In his proposed application,
Stevens presents three claims:
1. The Commonwealth of Virginia knowingly presented false testimony from Dr. John Boon about how the victim’s body may have moved in the Rappahannock River, and the state suppressed evidence showing the testimony was false.
2. The Commonwealth knowingly presented false testimony from Earl Smith that Stevens was late picking him up to pull crab pots the morning after the murder, and the state suppressed evidence showing the testimony was false.
3. The Commonwealth withheld evidence that supports Stevens’s innocence.
We ordered oral argument on the motion and now authorize Stevens’s application.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214, defines federal courts’ limited authority to review state court
convictions. We may grant a writ of habeas corpus and release a prisoner from state
custody only in exceptional circumstances. See 28 U.S.C. § 2254; Richardson v. Branker,
668 F.3d 128, 138 (4th Cir. 2012).
This authority entitles every state prisoner to one federal habeas challenge. 28
U.S.C. § 2254(a). But not more than one. For any successive federal habeas application,
AEDPA requires a prisoner to meet strict procedural and substantive gate-keeping
requirements before federal courts can reach the merits of that successive application.
Panetti v. Quarterman, 551 U.S. 930, 942–47 (2007).
4 The first gate-keeping provision for successive applications is § 2244(b)(3)’s pre-
filing authorization requirement: A successive applicant must “move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” 28
U.S.C. § 2244(b)(3)(A); see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
The court of appeals may grant this authorization only if the applicant has made a prima
facie showing that his claim (1) was not presented in a prior federal habeas application and
(2) falls within one of the two narrow paths set forth in § 2244(b)(2) to challenge his
conviction. 28 U.S.C. §§ 2244(b)(2), (b)(3).
The first path, provided in § 2244(b)(2)(A), requires that a claim rely on a new and
retroactive constitutional rule that was previously unavailable. The second path, set forth
in § 2244(b)(2)(B), demands that “(i) the factual predicate of 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.”
Stevens chose the second path. To obtain authorization, Stevens relies on new
factual predicates to satisfy § 2244(b)(2)(B). At this stage, he need not convince us that he
will ultimately satisfy this provision’s strict dictates. All he must do is make a prima facie
5 showing that he can do so. See In re Hubbard, 825 F.3d 225, 229, 231 (4th Cir. 2016); In
re Williams, 330 F.3d 277, 281–82 (4th Cir. 2003). 2
To make this prima facie showing, Stevens relies on the “box of materials” first
disclosed to him in October 2016. He contends that he could not have discovered the
evidence in the box through the exercise of due diligence. And he contends that this
evidence provides the factual predicate for the three claims he now seeks to raise. First,
Stevens argues that new evidence in an undisclosed FBI report shows that the
Commonwealth presented false testimony from Dr. Boone about how the victim’s body
may have moved in the Rappahannock River, see Napue v. Illinois, 360 U.S. 264 (1959),
and that it suppressed the exculpatory FBI evidence that undermines that testimony, see
Brady v. Maryland, 373 U.S. 83 (1963). Second, Stevens argues that new police records
addressing Earl Smith’s statements reveal that the Commonwealth presented false
testimony from Smith about Stevens’s routine the morning after the murder, see Napue,
360 U.S. 264, and that it suppressed the exculpatory information from Smith that
undermines that testimony as well, see Brady, 373 U.S. 83. And third, Stevens alleges that
the Commonwealth suppressed at least seven pieces of exculpatory evidence found in the
“box of materials.” See id.
2 Clearing this threshold is only Stevens’s first step on a narrow path to relief. Before the district court may review the merits of a successive application, it must determine that the applicant actually “satisfies the requirements of” § 2244(b). 28 U.S.C. § 2244(b)(4); see also Winestock, 340 F.3d at 205 (“When the application is thereafter submitted to the district court, that court must examine each claim and dismiss those that are barred under § 2244(b) or § 2255.”). 6 Based on the record and arguments before us, we hold that Stevens has made a prima
facie showing that his application satisfies § 2244(b)(2)(B)’s requirements. We therefore
grant him authorization to file a successive habeas application in the district court. At this
stage in the proceedings, we may not plod along any further. See In re Williams, 330 F.3d
277, 281−82 (4th Cir. 2003); cf. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (noting
that the threshold decision to grant a certificate of appealability under 28 U.S.C. § 2253(c)
forbids full consideration of the factual or legal bases adduced in support of the claims).
* * *
In AEDPA, Congress enacted rigorous substantive and procedural limitations that
prevent the federal courts from unduly disrupting state convictions. And for successive
habeas applications, Congress erected even higher hurdles. We have often explained that
these limits ensure the proper “respect due to state courts in our federal system.” Miller-
El, 537 U.S. at 340.
But AEDPA also highlights the central role of the state executive. By limiting the
power of the federal courts, AEDPA shifts the focus to those actors who possess the
ultimate discretion to prosecute, pardon, and preserve convictions. And, consistent with
this great power, we expect executive actors to wield their authority in a manner consistent
with our finest values and traditions. See Robert H. Jackson, The Federal Prosecutor,
Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940);
Merritt v. Commonwealth, 820 S.E.2d 379, 383 n.6 (Va. Ct. App. 2018) (quoting Berger
v. United States, 295 U.S. 78, 88 (1935)).
7 Although we often think of that responsibility in connection with an active
prosecution, it applies with just as much force when addressing contested convictions.
Since the beginning of our Republic, “in most, if not all, of the states, the executives have
by their respective constitutions, the right of pardoning.” V DEBATES ON THE ADOPTION
OF THE FEDERAL CONSTITUTION 208 (J. Elliot ed., 2d ed., 1881) (remarks of Madison, June
19, 1787). Concentrating post-conviction powers in the executive reflects the hope that
“the sense of responsibility is always strongest, in proportion as it is undivided.” THE
FEDERALIST No. 74, at 446 (Hamilton) (C. Rossiter ed., 1961); id. (“[t]he reflection that
the fate of a fellow-creature depended on [the executive’s] sole fiat, would naturally inspire
scrupulousness and caution”). And so, the executive’s power and responsibility both
before and after conviction remain fundamental in our system of divided powers.
Still, AEDPA does create a limited role for us to review state convictions. And, at
this stage, we find that Stevens has made the prima facie showing required to clear
AEDPA’s first hurdle. So we authorize him to file his successive habeas application in the
district court. What happens next is for the district court—and the state executive—to
determine.
MOTION GRANTED
8 THACKER, Circuit Judge, concurring:
Though I concur in the majority opinion, I write separately to explain in more detail
why, in my view, Emerson Stevens satisfies the prima facie standard set forth in 28 U.S.C.
§ 2244 to obtain authorization to file his successive § 2254 application.
As the majority explains, Stevens makes three claims based on newly discovered
evidence:
1. The [prosecution] knowingly presented false testimony from Dr. John Boon about how the victim’s body may have moved in the Rappahannock River, and the state suppressed evidence showing the testimony was false.
2. The [prosecution] knowingly presented false testimony from Earl Smith that Stevens was late picking him up to pull crab pots the morning after the murder, and the state suppressed evidence showing the testimony was false.
3. The [prosecution] withheld evidence that supports Stevens’s innocence.
Maj. Op. at 4.
Though Stevens will ultimately have to satisfy all of the requirements in § 2244 and
§ 2254 in order to succeed on his successive habeas, our review for purposes of granting
authorization only requires Stevens to make a prima facie showing of the “three essential
components” of § 2244(b)(2)(B).
First, the claim must rely on a ‘factual predicate [that] could not have been discovered previously through the exercise of due diligence.’ 28 U.S.C.A. § 2244(b)(2)(B)(i). Second, the claim must describe constitutional error. See id. § 2244(b)(2)(B)(ii). Third, the newly discovered facts upon which the claim is based, when viewed in conjunction with ‘the
9 evidence as a whole,’ 1 must ‘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.’ Id.
In re Williams, 330 F.3d 277, 282 (4th Cir. 2003) (alteration in original).
I agree entirely with the majority view that Stevens has made a prima facie showing
that the contents of the October 2016 box of documents, which form the basis of his three
claims, were not previously available to him. However, given the facts of this case, I find
it important to fully address the second and third requirements -- constitutional error and
establishing that, in light of the “evidence as a whole,” no reasonable factfinder would have
found Stevens guilty.
A.
In his first claim of constitutional error, Stevens argues the prosecution knowingly
presented false testimony from Dr. John Boon about how the victim’s body may have
moved in the Rappahannock River. Dr. John Boon, a marine scientist, testified for the
prosecution that it was possible for a weighed down body to travel ten miles upstream in
four days in the Rappahannock River system. Though Dr. Boon did not testify that this
was possible on the specific days in question, his testimony was essential to the
1 As we explained in In re Williams, “[a]lthough § 2244(b)(2)(B)(ii) requires us to consider ‘the evidence as a whole,’ we will rarely have the full trial record before us. . . . In most cases, therefore, we will be constrained to rely on the description of the trial record provided by the [authorization] motion.” 330 F.3d at 282 n.2 (citing In re Boshears, 110 F.3d 1538, 1541 & n. 1 (11th Cir. 1997) (stating that factual allegations in the authorization motion should be accepted as true unless “conclusively foreclose[d]” by the record)).
10 prosecution’s theory of the case because on the morning the victim’s body must have been
put into the water, Stevens’s boat had been seen docked ten miles downstream from where
the body was ultimately found.
Critically, when Stevens discovered the FBI report in the October 2016 box of
materials, he learned that the FBI had considered how far it was possible for the body to
have traveled on the relevant dates. The FBI Report concluded that on those days,
“[b]ecause of the tidal action and currents. . . it is currently estimated that the body . . . was
dumped within 500 to 600 yards of where it was eventually located.” J.A. 260. This
conclusion is at odds with the testimony of Dr. Boon.
The Supreme Court has held “knowingly us[ing] false evidence, including false
testimony, to obtain a tainted conviction” is a due process violation. Naupe v. People of
State of Ill., 360 U.S. 264, 269 (1959); see also United States v. Basham, 789 F.3d 358,
376 (4th Cir. 2015) (“[T]he Due Process Clause obliges the government not [to] use false
evidence, including false testimony.” (internal quotation marks omitted)). And we have
held “[e]vidence may be false either because it is perjured, or, though not itself factually
inaccurate, because it creates a false impression of facts which are known not to be true.”
Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967). Here, Stevens asserts that Dr. Boon’s
testimony, though perhaps accurate on a macro level, was used by the prosecution to create
the false impression that the victim’s body could have traveled ten miles upstream on the
four days in question. And, because the FBI report had been turned over in full to the
Virginia State Police, the prosecution was responsible for being aware of its contents. In
11 my view, these allegations are more than sufficient to make a prima facie showing of
constitutional error.
B.
Stevens’s second claim is that the prosecution knowingly presented false testimony
from Earl Smith. Smith was working with Stevens the week the victim disappeared and
testified that Stevens always picked him up for work around 6:00 a.m. However, Smith
testified that on the morning after the victim went missing, Stevens was an hour late. The
prosecution theorized that Stevens was late because he was disposing of the victim’s body
in the Rappahannock River. But on cross examination, Smith admitted that he could be
mistaken about which day Stevens was late. In fact, Stevens presented evidence that he
had been late a different morning that week because he had a doctor’s appointment.
Though Smith’s testimony was impeached, the prosecution relied heavily on his
direct testimony during its closing argument, suggesting that Stevens was late because he
was disposing of the victim’s body. Yet again, based on evidence found in the October
2016 box, Stevens now claims the prosecution knew Smith’s initial testimony was false,
failed to correct it, and used it to “create[] a false impression of facts which are known not
to be true.” See Hamric, 386 F.2d at 394. Specifically, the FBI report, which was included
in the October 2016 box, contains the investigation notes of the lead detective, Virginia
State Police Special Agent David Riley, when he interviewed Smith in September 1985.
Detective Riley reported then that Smith stated Stevens “picked him up the next morning
(Friday, 8/23/85) to go crabbing at the usual time of 5:30 - 6:00 a.m.” J.A. 281.
12 Because it is a constitutional violation to allow false testimony to go uncorrected,
Naupe, 360 U.S. at 269, and to knowingly use the testimony to create a false impression of
a material fact, Hamric, 386 F.2d at 394, Stevens’s claims create at least a prima facie
showing of constitutional error here as well.
C.
Finally, Stevens’s third claim is that the prosecution committed numerous violations
of Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence. Based
on the FBI report and other documents contained in the October 2016 box, Stevens claims
there are at least seven instances of facts that are exculpatory because they identify other
viable suspects, would have provided impeachment evidence, and/or provided alternative
theories that undermine the Commonwealth’s theory. None of these materials were
disclosed to Stevens prior to the disclosure of the October 2016 box.
Pursuant to Brady, “the suppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material either to guilt or to
punishment.” 373 U.S. at 87. Brady extends to impeachment evidence, United States v.
Bagley, 473 U.S. 667, 676 (1985), and to the failure to disclose favorable evidence that is
only known to the police, see Kyles v. Whitley, 514 U.S. 419, 437–38 (1995).
Evidence is material if it would reasonably “put the whole case in such a different
light as to undermine confidence in the verdict,” id. at 435, and materiality must be assessed
collectively, see id. at 436 n.10. The exculpatory facts Stevens identifies are both favorable
to him and may be used collectively to undermine confidence in the verdict. Though the
district court will need to determine if the effect of these facts is significant enough, at this 13 stage Stevens has made a prima facie showing that his claim describes a constitutional
violation.
Pursuant to 28 U.S.C. § 2244(b)(2)(B)(ii), the third “essential component” of
Stevens’s claim is a prima facie showing that “the newly discovered facts . . . when viewed
in conjunction with ‘the evidence as a whole,’” are “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.” In re Williams, 330 F.3d 277, 282
(4th Cir. 2003).
The evidence as a whole is important here because it is “all the evidence put before
the court at the time of its § 2244(b)(2)(B)(ii) . . . evaluation.” United States v. MacDonald,
641 F.3d 596, 610 (4th Cir. 2011). The Court must make “its § 2244(b)(2)(B)(ii) . . .
determination—unbounded ‘by the rules of admissibility that would govern at trial’—
based on ‘all the evidence, including that alleged to have been illegally admitted [and that]
tenably claimed to have been wrongly excluded or to have become available only after the
trial.’” Id. at 612 (alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 327–28
(1995)). In other words, “the court must consider all the evidence, old and new,
incriminating and exculpatory, without regard to whether it would necessarily be admitted
under [evidentiary rules].” Id. (internal quotation marks omitted) (alteration in original).
14 Thus, the ‘evidence as a whole’ includes all new developments in Stevens’s case,
regardless of whether those developments are part of his § 2254 claims.
From my vantage point, the evidence as a whole overwhelmingly supports a
conclusion that no reasonable jury would have convicted Stevens. In addition to the new
facts discussed above, there have been developments in several other key respects.
First, when the victim’s body was discovered, there were several wounds on her
back. A local Medical Examiner (“ME”) initially determined the cause of death was
asphyxiation and that the wounds were caused by the body scraping material in the water
after death. The Chief ME initially signed off on these conclusions. But, curiously, after
speaking with law enforcement about the case, the Chief ME changed course and
determined that the wounds were caused by a cutting instrument. See id. The Chief ME
then added “cutting wounds” as a second cause of death.
Then, during the trial, the prosecution presented a theory that the wounds could have
been caused by a Wildcat Skinner knife. A crime scene technician testified that he had
found a knife sheath in Stevens’s truck that was of the type that could have contained a
Wildcat Skinner. Interestingly, however, this sheath was not collected as evidence or
presented at trial. The Chief ME testified that a Wildcat Skinner could have caused the
wounds, and a friend of Stevens’s testified that Stevens owned a similar knife.
Significantly, however, the Chief ME has since reviewed her own findings and has
admitted in a sworn affidavit that the wounds are not consistent with knife or cutting
wounds but are instead consistent with a “post-mortem encounter with a boat propeller.”
J.A. 230–32. 15 Next, the prosecution presented only one piece of physical evidence at trial to
connect Stevens to the murder -- a single hair found on Stevens’s jacket. The hair was
compared to the victim’s hair using microscopic hair comparison analysis, and an expert
for the prosecution testified that the two were microscopically alike in all identifiable
characteristics. But microscopic hair comparison analysis is now considered scientifically
invalid and unreliable. Virginia recognized this in 2012 when it granted an order to retest
the hair in evidence using modern science. However, the hair was too old to be retested.
Finally, Clyde Dunaway, a witness who testified against Stevens and placed his
truck in the vicinity of the victim’s house, has since pled guilty to obstruction of justice for
providing false testimony during the trial. Specifically, during his testimony Dunaway
denied having asked the prosecution about potential reward money for supplying
information in the case. In fact, Dunaway had inquired about reward money on numerous
occasions.
Based on each of these new developments -- combined with the new facts Stevens
discovered in the October 2016 box -- I simply cannot see how any reasonable factfinder
could convict in this case. There is now no reliable physical evidence, the prosecution’s
theory that Stevens’s knife caused the back wounds is no longer viable, the jury could
seriously question at least one prosecution witnesses credibility based on his false
testimony, and the FBI report at least makes the prosecution’s theory that the body traveled
ten miles much more difficult to believe.
At a minimum, Stevens has made a prima facie showing that, based on the evidence
as a whole, no reasonable jury would have convicted him of this crime. 16 III.
Though I would go farther than the majority by way of explanation, I concur for all
of the foregoing reasons.