PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-9
IVAN TELEGUZ,
Petitioner-Appellant,
v.
EDDIE L. PEARSON, Warden, Sussex I State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, District
Judge. (7:10-cv-00254-JPJ)
Argued: May 16, 2012 Decided: August 2, 2012
Before MOTZ, DAVIS and WYNN, Circuit Judges.
Vacated in part and remanded by published opinion. Judge Wynn
wrote the opinion in which Judge Motz and Judge Davis concurred.
ARGUED: Matthew Carey Stiegler, Philadelphia, Pennsylvania, for
Appellant. Katherine Baldwin Burnett, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Elizabeth J. Peiffer, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
Kenneth T. Cuccinelli, II, Attorney General of Virginia,
Richmond, Virginia, for Appellee.
WYNN, Circuit Judge:
Ivan Teleguz, convicted of capital murder and
sentenced to death in Virginia, appeals from the district
court’s dismissal of his 28 U.S.C. § 2254 petition for habeas
corpus relief. We granted a certificate of appealability to
determine whether the district court abused its discretion in
denying Teleguz’s request for an evidentiary hearing to develop
his claim of actual innocence, which, under Schlup v. Delo, 513
U.S. 298 (1995), would allow the district court to address
Teleguz’s procedurally defaulted constitutional claims. We hold
that the district court abused its discretion in failing to
conduct a sound and thorough analysis of Teleguz’s Schlup
gateway innocence claim as required by our decision in Wolfe v.
Johnson, 565 F.3d 140, 163 (4th Cir. 2009), and we remand for
further proceedings.
I.
On February 9, 2006, a jury convicted Teleguz of
capital murder for hire after his former girlfriend, Stephanie
Sipe, was found dead in the apartment she shared with Teleguz’s
infant son. Although DNA evidence linked Michael Hetrick to the
murder, Hetrick testified at Teleguz’s trial that Teleguz had
hired him to commit the crime. Hetrick’s allegations were
corroborated by two additional witnesses: Edwin Gilkes and
2
Aleksey Safanov. Gilkes testified that he had been present at a
birthday party where Teleguz hired Hetrick to commit the murder.
Gilkes also testified that he accompanied Hetrick to Sipe’s
apartment and waited outside for Hetrick during the murder.
Gilkes further claimed that he was afraid of Teleguz because he
had heard rumors that Teleguz was a member of the Russian mafia,
as well as a specific account of a murder committed by Teleguz
in Ephrata, Pennsylvania. According to Gilkes, Teleguz had shot
a Russian criminal in the street outside the Ephrata Recreation
Center.
Safanov testified that Teleguz attempted to hire him
to murder Sipe so that Teleguz would no longer be required to
pay child support. Safanov also testified that Teleguz had
spoken to him after the murder, complaining that “the black man”
he had hired to kill Sipe had left blood at the scene, and
offering Safanov money if he would “eliminate [the] killer.”
J.A. 325. Although other evidence was presented at trial, the
Supreme Court of Virginia explained that, “in order to return a
guilty verdict, the jury had to believe the testimony of
Safanov, Gilkes, and Hetrick.” Teleguz v. Commonwealth, 643
S.E.2d 708, 728 (Va. 2007) (“Teleguz I”).
On February 14, 2006, the jury recommended a death
sentence after finding that two statutory aggravating factors
were present: vileness and future dangerousness. Following
3
Teleguz’s appeal, the Supreme Court of Virginia affirmed his
conviction and sentence. Teleguz I, 643 S.E.2d at 732. He then
filed a petition for writ of habeas corpus in state court, which
the Supreme Court of Virginia dismissed. Teleguz v. Warden of
Sussex I State Prison, 688 S.E.2d 865, 879 (Va. 2010). On
November 12, 2010, Teleguz filed a petition for writ of habeas
corpus in the United States District Court for the Western
District of Virginia, asserting various grounds for relief.
Some of Teleguz’s claims had been adjudicated on the merits by
the Supreme Court of Virginia, while others had been
procedurally defaulted. Teleguz argued that, pursuant to the
Supreme Court’s decision in Schlup, 513 U.S. 298, the district
court should consider the merits of his procedurally defaulted
claims because new and reliable evidence established that he was
actually innocent of Sipe’s murder (“Schlup gateway innocence
claim”).
In support of his Schlup gateway innocence claim,
Teleguz offered several categories of evidence. First, he
presented affidavits of third-party witnesses who claimed that
Teleguz did not attend the birthday party during which he was
alleged to have hired Hetrick to kill Sipe. Second, he offered
police reports and affidavits to establish that no murder
occurred outside the Ephrata Recreation Center, that no murder
that occurred in Ephrata prior to Teleguz’s trial remains
4
unsolved, and that the only murder involving a Russian victim
occurred at a private residence. Third, Teleguz presented
affidavits in which Gilkes and Safanov recanted the testimony
they offered at Teleguz’s trial. Gilkes now claims that he was
coerced into testifying against Teleguz by the prosecutor, who
“made clear that if [he] did not, [he] would have been the one
on death row today, not Teleguz.” J.A. 1281. Gilkes executed
affidavits in both 2008 and 2010 denying that Teleguz hired
Hetrick to kill Sipe. Safanov currently resides in Kazakhstan,
but was contacted by lawyers from Teleguz’s defense team.
According to their affidavits, Safanov now insists that he never
discussed Sipe’s murder with Teleguz and agreed to testify
during Teleguz’s trial only because he believed that if he
cooperated with the prosecutor, he would be eligible for a visa
allowing him to stay in the United States despite pending
federal gun charges.
On August 1, 2011, the district court issued an
opinion and order denying Teleguz habeas relief. Teleguz v.
Kelly, 824 F. Supp. 2d 672, 723 (W.D. Va. 2011) (“Teleguz II”).
We granted a certificate of appealability to determine whether
the district court abused its discretion in denying Teleguz’s
5
request for an evidentiary hearing pursuant to Schlup v. Delo,
513 U.S. 298. 1
II.
We review a district court’s denial of habeas relief
de novo and its decision not to grant an evidentiary hearing for
abuse of discretion. Wolfe, 565 F.3d at 160. When a court
bases its decision on an error of law, it necessarily abuses its
discretion. Id.
A.
“In disposing of a § 2254 habeas corpus petition”
federal courts are “substantially constrain[ed]” in their review
of state court convictions by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Id. at 159. The AEDPA was
“designed to further the principles of comity, finality, and
federalism” by limiting federal habeas proceedings. Sharpe v.
Bell, 593 F.3d 372, 379 (4th Cir. 2010) (quotation marks
omitted). Accordingly, if a state court adjudicates a
petitioner’s claims on the merits, a federal court may only
1
We also granted a certificate of appealability on
Teleguz’s guilt phase ineffective assistance of counsel claim.
Because this claim may be more fully developed on remand, we
have not addressed that claim and will, accordingly, reserve
judgment.
6
award habeas relief if the resulting state court decision “[i]s
contrary to or involved an unreasonable application of federal
law” or “[i]s based on an unreasonable determination of the
facts in light of the evidence” that was before it. 28 U.S.C. §
2254(d). “A state court’s decision is ‘contrary to’ clearly
established federal law only if it is ‘substantially different’
from the relevant Supreme Court precedent; it is ‘an
unreasonable application of’ clearly established federal law
only if it is ‘objectively unreasonable.’” Wolfe, 565 F.3d at
159 (quoting Williams v. Taylor, 529 U.S. 362, 405, 409 (2000)).
Further, a federal court ordinarily may not consider
claims that a petitioner failed to raise at the time and in the
manner required under state law unless “the prisoner
demonstrates cause for the default and prejudice from the
asserted error.” House v. Bell, 547 U.S. 518, 536 (2006).
However, in Schlup, 513 U.S. 298, the Supreme Court recognized
that in certain exceptional cases, a compelling showing of
actual innocence would enable a federal court to consider the
merits of a petitioner’s otherwise defaulted claims. In these
cases, new evidence “establish[es] sufficient doubt about [a
petitioner’s] guilt to justify the conclusion that his execution
would be a miscarriage of justice unless his conviction was the
product of a fair trial.” Id. at 316 (emphasis in original).
7
Courts have consistently emphasized that actual
innocence for the purposes of Schlup is a procedural mechanism
rather than a substantive claim. See, e.g., Sibley v. Culliver,
377 F.3d 1196, 1207 n.9 (11th Cir. 2004) (distinguishing between
a “substantive claim for relief upon which the petition for
habeas corpus is based” and a Schlup “gateway through which a
habeas petitioner must pass” to have his substantive claims
heard on the merits). 2 In other words, although a petitioner
claims actual innocence for the purposes of asserting a Schlup
claim, this innocence claim “does not by itself provide a basis
for relief. Instead, his claim for relief relies critically on
the validity” of his procedurally defaulted claims. Coleman v.
Hardy, 628 F.3d 314, 318 (7th Cir. 2010) (quotation marks
omitted).
When a petitioner raises a Schlup gateway actual
innocence claim, it must be supported by “new reliable
2
A petitioner may also raise a freestanding innocence claim
in a federal habeas petition, alleging that, irrespective of any
procedural errors, petitioner is innocent, and that “the
execution of an innocent person would violate the Eighth
Amendment.” Schlup, 513 U.S. at 314. The Supreme Court has not
articulated the standard under which these claims should be
evaluated, but has made clear that the “threshold for any
hypothetical freestanding innocence claim [is] ‘extraordinarily
high.’” House, 547 U.S. at 555 (quoting Herrera v. Collins, 506
U.S. 390, 417 (1993)). A petitioner seeking to address
procedurally defaulted claims under Schlup must meet “a less-
stringent—though nevertheless rigorous” standard than a
petitioner who seeks relief on the basis of innocence alone.
Wolfe, 565 F.3d at 164.
8
evidence.” Schlup, 513 U.S. at 324. However, in its
consideration of a petitioner’s Schlup gateway actual innocence
claim, the district court “must consider ‘all the evidence’ old
and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under ‘rules of
admissibility that would govern at trial.’” House, 547 U.S. at
537 (quoting Schlup, 513 U.S. at 327-28) (emphasis added)
(quotation marks omitted). In light of this evidence, the
district court must determine whether “it is more likely than
not that no reasonable juror would have found [the] petitioner
guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. If
the district court finds that, “more likely than not any
reasonable juror would have reasonable doubt” as to the
petitioner’s guilt, then the petitioner has satisfied the Schlup
standard, and the district court must review the petitioner’s
procedurally defaulted claims. House, 547 U.S. at 538.
B.
Here, Teleguz’s habeas petition asserted a Schlup
gateway innocence claim to allow the district court to consider
the merits of his procedurally defaulted claims. Teleguz argues
that he met the Schlup standard with an extraordinary showing of
actual innocence because “two of the prosecution’s three
critical witnesses hav[e] admitted that their trial testimony
9
was false, [and] it is [therefore] . . . more likely than not
that any reasonable juror presented with all the evidence, old
and new, incriminating and exculpatory, would have a reasonable
doubt about Teleguz’s guilt.” Appellant’s Br. 29 (quotation
marks omitted). Although we appreciate that the district court
“attentively managed complex proceedings” and “carefully
reviewed the extensive record” that was before it in this
case, House, 547 U.S. at 540, we are unable to conclude, based
on the district court’s opinion, that Teleguz’s Schlup gateway
innocence claim was properly analyzed and resolved by the
district court.
The district court correctly set out the Schlup
standard in its explanation of the relevant law. 3 However, as we
explained in Wolfe, “a sound analysis of the Schlup issue
is essential to properly resolve these § 2254 proceedings.” 565
F.3d at 163 (emphasis added). Notwithstanding this requirement,
in addressing Teleguz’s procedurally defaulted claims, the
district court simply stated that “Teleguz has not shown cause
and prejudice or a fundamental miscarriage of justice to excuse
3
There was one error in the district court’s explanation.
Compare Teleguz II, 824 F. Supp. 2d at 685 (“In assessing a
petitioner’s claim of actual innocence, the court may consider
all relevant evidence . . . .” (emphasis added)), with House,
547 U.S. at 538 (“Schlup makes plain that the habeas court must
consider ‘all the evidence.’” (emphasis added) (quotation marks
omitted)).
10
the default.” Teleguz II, 824 F. Supp. 2d at 698; see also id.
at 695 (“Teleguz has failed to show cause for the default and .
. . has not shown a fundamental miscarriage of justice that
would excuse the default.”); id. at 708, 709 (“Teleguz has
failed to show cause and prejudice or a miscarriage of
justice.”); id. at 696 (“[T]here is no fundamental miscarriage
of justice to excuse that default.”). Nowhere in its order does
the district court more thoroughly or directly consider
Teleguz’s Schlup gateway innocence claim. 4 Consequently, this
Court is left with the district court’s conclusory explanations,
which do not provide sufficient analysis to enable us to review
the reasons for, or scope of, the district court’s denial of
Teleguz’s Schlup gateway innocence claim.
Further, that the district court addressed the cause
and prejudice standard and the miscarriage of justice standard
in the same sentences indicates that the district court likely
based its analysis on a mistake of law, by applying its Schlup
analysis to individual procedurally defaulted claims. See,
e.g., Teleguz II, 824 F. Supp. 2d at 698 (“Teleguz has not shown
4
In evaluating Teleguz’s freestanding innocence claim, the
district court laid out the relevant evidence, and determined
whether it was sufficient to meet the “extraordinarily high”
Herrera standard. See Teleguz II, 824 F. Supp. 2d at 713-16.
However, this analysis is insufficient to dispose of Teleguz’s
Schlup gateway innocence claim due to the difference in the
governing legal standards. See supra note 2.
11
cause and prejudice or a fundamental miscarriage of justice to
excuse the default.”). While both the cause and prejudice
standard and Schlup’s fundamental miscarriage of justice
standard excuse a procedural default and allow a federal court
to review defaulted claims on the merits, a petitioner must meet
the cause and prejudice standard with respect to each
claim. McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.
1996) (“Claims are reviewed individually for purposes of
determining whether they overcome a procedural default; each
claim must meet the cause and prejudice test.”).
By contrast, a petitioner’s satisfaction of the Schlup
standard does not require a showing that a fundamental
miscarriage of justice caused or underlies each procedurally
defaulted claim. Rather, to satisfy the Schlup standard, a
petitioner must instead demonstrate that the totality of the
evidence would prevent any reasonable juror from finding him
guilty beyond a reasonable doubt, such that his incarceration is
a miscarriage of justice. See Schlup, 513 U.S. at 327. If a
petitioner passes through the Schlup gateway by satisfying this
standard, the district court then considers, and reaches the
merits of, all of the petitioner’s procedurally defaulted
claims.
Other portions of the district court’s opinion also
support our determination that the district court erroneously
12
applied its Schlup analysis individually to each procedurally
defaulted claim rather than to the totality of the
evidence. See, e.g., Teleguz II, 824 F. Supp. 2d at 711-12
(examining a procedurally defaulted claim on the merits and
concluding, “I do not find this issue significant enough to
excuse Teleguz’s procedural default”). The Commonwealth
similarly mischaracterizes the Schlup inquiry in its brief,
arguing that the court need not engage in Schlup analysis
because Teleguz “never identified or discussed how any
particular defaulted claim would qualify under the gateway
standard[ ] of Schlup,” and claiming instead that Teleguz
“simply contended that he was innocent, that he had defaulted
claims, and that he therefore was entitled to relief.”
Appellee’s Br. 25. We reject the Commonwealth’s contention that
“federal habeas courts may not entertain any argument of
[a Schlup gateway] innocence [claim] that is not causally
connected to a defaulted claim of constitutional error.”
Appellee’s Br. 21. We find no jurisprudential support for a
requirement that a causal relationship exist between a
petitioner’s evidence of actual innocence and a petitioner’s
procedurally defaulted claims. In House, for example, a
petitioner convicted of capital murder claimed that DNA evidence
proved he had not committed the crime, and that his counsel’s
ineffectiveness had resulted in his conviction. 547 U.S. at
13
533, 540. The Supreme Court examined the DNA evidence and
witness testimony that House offered in support of his actual
innocence of the crime, and held that he had met the Schlup
gateway innocence standard without any discussion of his
counsel’s performance at trial. See id. at 555 (“House has
satisfied the gateway standard set forth in Schlup and may
proceed on remand with procedurally defaulted constitutional
claims.”). 5
Thus, a district court’s inquiry into a Schlup gateway
innocence claim requires an examination of all of the evidence
and a threshold determination about the petitioner’s claim of
innocence that is separate from its inquiry into the fairness of
his trial. See Schlup, 513 U.S. at 327 (noting that the
“standard is intended to focus the inquiry on actual
innocence”). The district court must make a holistic
5
Further, the Commonwealth’s reliance on Calderon v.
Thompson, 523 U.S. 538 (1998), is misplaced. In Calderon, a
petitioner offered new evidence that merely undermined the
credibility of the witnesses who testified against him by
showing that they were generally dishonest and had more prior
convictions than they had admitted to at trial. The Supreme
Court characterized this evidence as “a step removed from
evidence pertaining to the crime itself.” Id. at 563.
Critically, the petitioner in Calderon made “no appreciable
effort to assert his innocence of [the] murder.” Id. at 560.
Here, by contrast, Teleguz has presented evidence of two of his
three accusers’ recantations, calling into question the only
direct evidence linking him to Sipe’s murder. And this new
evidence is closely linked to Teleguz’s assertion of actual
innocence.
14
determination of how a reasonable juror would perceive all of
the evidence in the record. Only if the district court
determines that a reasonable juror would more than likely have a
reasonable doubt does it then consider the petitioner’s
procedurally defaulted claims. Because we are unable to
conclude that the district court engaged in the rigorous Schlup
analysis required by Wolfe, we vacate and remand on this issue.
III.
Because we remand for further analysis of
Teleguz’s Schlup gateway innocence claim, the district court
will again be faced with the issue of whether to conduct an
evidentiary hearing to allow Teleguz to develop this innocence
claim. We therefore turn next to this issue.
In its detailed opinion, the district court did not
explain its decision not to conduct an evidentiary hearing on
Teleguz’s Schlup gateway innocence claim. On remand, the
district court should address whether Teleguz should be granted
an evidentiary hearing. 6 The district court should consider the
6
Our sister circuits considering whether the limitation on
evidentiary hearings in § 2254(e)(2) applies to Schlup claims
have overwhelmingly found that it does not. See Cristin v.
Brennan, 281 F.3d 404, 417 (3d Cir. 2002) (holding that Congress
did not intend § 2254(e)(2) restrictions on evidentiary hearings
to apply to “hearings on excuses to procedural defaults”);
accord Sibley, 377 F.3d at 1207 n.9; McSwain v. Davis, 287 F.
(Continued)
15
particular facts raised by the petitioner in support of his
actual innocence claim in determining whether an evidentiary
hearing is warranted. Compare Cristin v. Brennan, 281 F.3d 404,
417 (3d Cir. 2002) (affirming the district court’s decision to
hold an evidentiary hearing to determine if petitioner met the
threshold of actual innocence), with Thomas v. Taylor, 170 F.3d
466, 475 (4th Cir. 1999) (affirming the district court’s denial
of evidentiary hearing on actual innocence when petitioner’s
requested discovery could not establish his actual innocence).
This Court has counseled that, when a witness
providing the “only direct evidence implicating [a petitioner]
in the murder-for-hire scheme” recants his testimony, this
recantation “strongly suggests that an evidentiary hearing may
be warranted.” Wolfe, 565 F.3d at 170. We explained that an
evidentiary hearing may be necessary to assess whether
recantations are credible, or whether “‘the circumstances
surrounding the recantation[s] suggest [that they are] the
App’x 450, 462 (6th Cir. 2008) (unpublished); Vineyard v.
Dretke, 125 F. App’x 551, 554 (5th Cir. 2005) (unpublished); see
also Schlup, 513 U.S. at 861 (explaining that a Schlup “claim of
actual innocence is not itself a constitutional claim but
instead a gateway” to the review of other constitutional
claims). Cf. Coleman, 628 F.3d at 319-20 n.2 (holding that not
§ 2254(e)(2)(A), but rather § 2254(e)(2)(B) applies); Williams
v. Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996) (distinguishing
an evidentiary hearing “to present new evidence to support
[petitioner’s] primary claim” and “an evidentiary hearing for
purposes of establishing cause and prejudice”).
16
result of coercion, bribery or misdealing.’” Id. at 169
(quoting United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir.
1973)). This type of credibility determination, required
for Schlup analysis, may be more difficult on a cold
record. Cf. Coleman, 628 F.3d at 320-21 (remanding for an
evidentiary hearing to “evaluate the reliability” of the
recantation of a codefendant whose “reputation for honesty is
weak”). The district court should also consider the “heightened
need for fairness in the administration of death[,] . . . born
of the appreciation that death truly is different from all other
punishments a society inflicts upon its citizens.” Callins v.
Collins, 510 U.S. 1141, 1149 (1994) (Blackmun, J., dissenting
from denial of certiorari).
The Commonwealth correctly notes in its brief that a
district court’s ability to make factual determinations is
constrained by 28 U.S.C. § 2254(e)(1), which provides that any
“determination of a factual issue made by a State court shall be
presumed to be correct.” Thus, when a state court has made a
factual determination bearing on the resolution of a Schlup
issue, the petitioner bears the burden of rebutting this
presumption by “clear and convincing evidence.” Sharpe, 593
F.3d at 378.
Here, however, the Supreme Court of Virginia has not
assessed the credibility of Teleguz’s recantations. It is well
17
established that the district court is permitted under Schlup to
“make some credibility assessments” when, as here, a state court
has not evaluated the reliability of a petitioner’s “newly
presented evidence [that] may indeed call into question the
credibility of the witnesses presented at trial.” Schlup, 513
U.S. at 330. Accordingly, the district court may make
determinations about “the probative force of relevant evidence
that was either excluded or unavailable at trial,” id. at 327-
28, and “assess how reasonable jurors would react to the
overall, newly supplemented record,” House, 547 U.S. at 538, but
the district court may not reject the factual findings of a
state court absent clear error. Sharpe, 593 F.3d at 379.
IV.
For the foregoing reasons, we vacate the district
court’s decision in part and remand for further proceedings.
VACATED IN PART
AND REMANDED
18