[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2007
No. 07-12014 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00140-CV-5-MMP-EMT
MILTON R. MURRAH,
Petitioner-Appellant,
versus
JAMES R. MCDONOUGH,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 29, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Florida prisoner Milton Murrah appeals the denial of his habeas corpus
petition, 28 U.S.C. § 2254. The district court granted a certificate of appealability
(COA) on the issue “of the trustworthiness and effect of the alleged videotaped
witness recantation.” Although somewhat unclear, we construe this COA as being
limited to the issue of whether Murrah has a claim of actual innocence that is
cognizable under federal habeas law and, if so, whether the district court erred in
declining to hold an evidentiary hearing on this claim.
Murrah contends he demonstrated a factual claim of actual innocence
requiring, at a minimum, a federal evidentiary hearing under Schlup v. Delo, 115 S.
Ct. 851 (1995). Murrah also asserts the district court’s refusal to hold an
evidentiary hearing on his actual innocence claim violated Townsend v. Sain, 83 S.
Ct. 745 (1963).1
We review a district court’s denial of a petition for writ of habeas corpus
de novo. Siebert v. Allen, 455 F.3d 1269, 1271 n.2 (11th Cir. 2006), cert. denied,
127 S. Ct. 1823 (2007) (involving a dismissal of a habeas petition). A district
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Murrah asserts he has raised constitutional claims independent of his actual innocence
claim, specifically, that the state court violated his due process and equal protection rights by
failing to hold an evidentiary hearing on his claim of actual innocence based on newly
discovered evidence. We do not address this claim, however, because we conclude the argument
is outside of the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th
Cir. 1998) (holding appellate review is limited to the issue or issues presented in the COA).
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court’s “factual determinations will be reversed only if they are clearly erroneous.”
Id.
The “decision to grant an evidentiary hearing [is] generally left to the sound
discretion of district courts.” Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007).
Nevertheless, a district court should hold an evidentiary hearing if there are
disputed facts with respect to the petitioner’s habeas claim, and the petitioner did
not receive a full and fair hearing before a state court, either at trial or in a
collateral proceeding. Townsend, 83 S. Ct. at 756, overruled in part on other
grounds, Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), superceded by 28
U.S.C. § 2254(e)(2). However, “[w]here a complete record, fully developed in
state court proceedings, is sufficient for proper examination of the claims on
federal collateral review, there is no need for an evidentiary hearing in federal
court.” Tukes v. Dugger, 911 F.2d 508, 516 n.12 (11th Cir. 1990).
The record was adequately developed to demonstrate that Murrah could not
maintain, much less prevail on, a freestanding actual innocence claim, and the
district court was not required to hold an evidentiary hearing. “Claims 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 proceeding.” Herrera v. Collins, 113 S.
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Ct. 853, 860 (1993). Thus, Murrah’s freestanding actual innocence claim is not
cognizable under federal habeas law. Further, as the State correctly argues, Schlup
is inapplicable because Murrah did not assert a cognizable independent
constitutional claim.2 See Schlup, 115 S. Ct. at 861 (quoting Herrera, 113 S. Ct. at
862) (stating where a petitioner asserts an actual innocence claim as well as an
independent constitutional violation, the “claim of innocence is . . . ‘not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim considered on the merits.’” ).
Moreover, even assuming arguendo that Murrah presented a cognizable
actual innocence claim, the state court’s decision was not “contrary to” or an
“unreasonable application of” clearly established federal law. See 28 U.S.C.
§ 2254(d)(1) (stating where a state court has adjudicated the merits of a claim
raised in a § 2254 petition, a petition cannot be granted with respect to that claim
unless the state court’s adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . .”). The state court’s
2
Before the district court, Murrah asserted independent constitutional claims based upon
Giglio v. United States, 92 S. Ct. 763 (1972), and Brady v. Maryland, 83 S. Ct. 1194 (1963).
However, we do not consider the merits of these claims because they are outside of the scope of
the COA, and, in any event, Murrah has abandoned these claims by failing to present any formal
argument on the claims in his liberally construed pro se appellate brief. See Dalrymple v. United
States, 460 F.3d 1318, 1327 n.1 (11th Cir. 2006) (deeming abandoned a claim not raised in an
appellant’s initial brief).
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decision was not “contrary to” clearly established federal law because, even though
the court did not cite to any federal law, it discounted the videotape recantations
after finding the credibility of the recantations to be questionable, and the law of
this Circuit is that recantations should be viewed with “extreme suspicion.” See
United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988). Nor was the state
court’s decision an “unreasonable application of” clearly established federal law,
because the state court reasonably discounted the videotaped recantation as not
credible, in light of the evidence that: (1) the alleged victims were not placed
under oath before recanting their earlier trial testimony; (2) a family friend
conducted the interview; (3) other members of Murrah’s family were present
during the interview; (4) the interview contained very suggestive and leading
questions; (5) the interviewer was very sympathetic to Murrah; and (6) the tape
was stopped during the recording on at least two occasions.
Accordingly, we affirm the denial of Murrah’s § 2254 petition.
AFFIRMED.
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