State Ex Rel. Amrine v. Roper

DUANE BENTON, Judge,

dissenting.

I would appoint a master to hold a hearing.

Joseph Amrine alleges clear and convincing evidence of actual innocence. Allegations, however, do not prove themselves. See State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991); Newman v. State, 669 S.W.2d 617, 619 (Mo.App.1984). Habeas corpus is an original action, and Amrine *551has the burden to prove he is entitled to relief. See State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). Based on allegations alone, this Court should not free a person convicted after a trial, which was affirmed on appeal; a post-conviction hearing, also affirmed by this Court; and several reviews by the federal courts. See State v. Amrine, 741 S.W.2d 665 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988); Amrine v. State, 785 S.W.2d 531 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 181 (1990); Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. banc 1997), cert. denied, 523 U.S. 1123, 118 S.Ct. 1807, 140 L.Ed.2d 946 (1998); Amrine v. Bowersox, 238 F.3d 1023 (8th Cir.), cert. denied, 534 U.S. 963, 122 S.Ct. 372, 151 L.Ed.2d 283 (2001).

Clearly, “the state relied primarily on three witnesses at trial.” Amrine v. Bowersox, 128 F.3d at 1223. These were inmates Randy Ferguson, Terry Russell, and Jerry Poe. Id.

A state trial judge, at a post-conviction hearing, found that Randy Ferguson’s recantation was not credible, because his “testimony about threats was ‘unworthy of belief and designed merely to help a fellow inmate.” Id. at 1224. The state post-conviction judge also found that Terry Russell’s recantation was not credible, because it was “motivated by the desire to gain the good will of Amrine so that he could be released from protective custody.” Id.

In Amrine’s federal habeas corpus case, the Eighth Circuit remanded for a hearing to evaluate the testimony of the third witness, Jerry Poe. See Amrine v. Bowersox, 128 F.3d at 1230. The district court “found that Poe was not a credible witness and that his recantation could not be relied upon.” Amrine v. Bowersox, 238 F.3d at 1028, 1029. The Eighth Circuit agreed, stating: “This is a credibility determination which is entitled to great deference, and we see no reason to overturn it.” Id.

Every court, until today, has found that the recantations were not credible. Credibility is the key to this case. A hearing is appropriate. Rules 91.15, 91.17; section 532.310 RSMo 2000; see State ex rel. Haley v. Groose, 873 S.W.2d 221, 222 (Mo. banc 1994). Because I would appoint a master, I dissent.