United States Court of Appeals
For the First Circuit
No. 07-1650
DONOVAN WALKER,
Petitioner, Appellant,
v.
LOIS RUSSO, SUPERINTENDENT,
SOUZA-BARANOWSKI CORRECTIONAL CENTER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Leslie W. O'Brien for petitioner.
Eva M. Badway, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for respondent.
October 19, 2007
LYNCH, Circuit Judge. This is an appeal from a denial of
a habeas corpus petition, under 28 U.S.C. § 2254, by Donovan
Walker. Walker was convicted of first degree murder in
Massachusetts state court and is serving a sentence of life
imprisonment.
There is no doubt Walker killed Tyrone Davis outside a
bar in November 1999 by stabbing him in the head. The only
question at trial was whether the defendant was guilty of first
degree murder or a lesser offense; that depended on whether the
murder was premeditated.
On January 6, 2005, the Massachusetts Supreme Judicial
Court ("SJC") affirmed on appeal Walker's conviction and the denial
of his motion for a new trial. Commonwealth v. Walker, 820 N.E.2d
195, 198 (Mass. 2005). The court rejected his attack on the self-
defense instruction given to the jury and his claim of ineffective
assistance of counsel.
Later, on January 27, 2006, Walker filed a second motion
for a new trial in state court that raised a different argument as
to how his trial counsel had been constitutionally ineffective.
Walker claimed, inter alia, that trial counsel had failed to elicit
specific testimony from the bartender that Walker had been leaving
the bar before there was an altercation between Walker and Davis
outside. After the superior court denied the motion, Walker filed
an application for leave to appeal to the SJC. On July 11, 2006,
-2-
a single justice of the SJC found that Walker had failed to raise
new or substantial claims, as Massachusetts requires in order to
grant appellate review to a defendant convicted of first degree
murder who makes a motion after the conclusion of his direct
appeal. See Mass. Gen. Laws ch. 278 § 33E.
Walker then filed for federal habeas relief in the
District of Massachusetts, in part on the basis of the new argument
regarding ineffective assistance of counsel. The district court
rejected all of his claims. His appeal to this court is based only
on his most recent claim of ineffective assistance of counsel.
Normally, the fact that a claim is procedurally defaulted
in state court is an adequate and independent state ground
precluding federal habeas relief. See, e.g., Coleman v. Thompson,
501 U.S. 722, 729-30 (1991) (when a state court declines to address
federal claims because defendant fails to meet a state procedural
requirement, the judgment rests on independent and adequate state
grounds); Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002)
(because the SJC "regularly enforces the rule that a claim not
raised is waived," procedural default in Massachusetts courts
constitutes an independent and adequate state ground); Burks v.
Dubois, 55 F.3d 712, 716 (1st Cir. 1995) ("[A] state court decision
resting upon a finding of procedural default . . . forecloses
federal habeas review . . . .").
-3-
Walker does not argue he should be excused from his
default because he can show cause and prejudice. See Wainwright v.
Sykes, 433 U.S. 72, 84-85, 87 (1977) (a habeas petitioner's state
procedural default can be excused if petitioner can show both cause
for and prejudice resulting from the default). Given that Walker's
ineffective assistance argument was not based on anything new, this
was a reasonable assessment.
Rather, Walker argues he should be excused from his
procedural default because he is actually innocent. In addition to
cause and prejudice, a second ground for bypassing state procedural
default is available if a petitioner can demonstrate actual
innocence. See Murray v. Carrier, 477 U.S. 478, 496 (1986)
("[W]here a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court
may grant the writ even in the absence of a showing of cause for
the procedural default."). The Supreme Court has emphasized that
the actual innocence exception is very narrow, reserved for truly
exceptional cases. See, e.g., id. (noting the actual innocence
exception is reserved for the "extraordinary" case).
The district court, in a well-reasoned opinion, found
that Walker had not come close to showing actual innocence. The
district court used the standard from Schlup v. Delo, 513 U.S. 298
(1995), repeated by this court in Gunter: to establish actual
innocence, "petitioner must show that it is more likely than not
-4-
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt." Gunter, 291 F.3d at 83 (quoting Schlup, 513
U.S. at 327) (internal quotation marks omitted). We affirm the
denial and rely on the district court's opinion, and also add a few
words.
Walker's actual innocence claim rests on his assertion
that trial counsel did not elicit specific testimony from the
bartender that Walker was leaving the premises before Davis was
killed.1 If this evidence were added into the mix, Walker's theory
goes, a jury would have acquitted because if Walker was leaving the
premises he could not have planned to stab Davis and so the murder
was not premeditated.
The gaps in the argument are too large for Walker to meet
the actual innocence standard. Walker first argues that the
district court evaluated his claim using the wrong standard.
Walker argues that the district court used a sufficiency of the
evidence standard instead of combining the new evidence with what
1
This is the actual innocence claim that Walker presented
to the district court and on which the district court based its
decision. In his brief to this court, Walker argues that other
alleged errors of counsel -- not eliciting specific testimony that
Davis's friends at the scene were armed with bottles, not seeking
to introduce these friends' criminal histories, and not calling the
bartender's brother to corroborate the bartender's testimony --
also provide new evidence that supports his actual innocence claim.
Since this argument was not made to the district court, we review
it only for plain error. United States v. Leahy, 473 F.3d 401,
409-10 (1st Cir. 2007). There was no error; Walker is very distant
from making the showing necessary for actual innocence.
-5-
the jury heard and then determining whether a reasonable jury could
have convicted on the basis of the combined evidence. In fact, the
record demonstrates that the district court used exactly the
standard Walker advocates.
As the district court held, it is likely that a jury
could have found Walker guilty beyond a reasonable doubt even if
the bartender had testified that Walker was leaving. Whether
Walker had a premeditated intent to kill Davis before he left the
bar to go outside was not the issue. There was ample opportunity
in the time before and during the altercation that followed for
Walker to have formed the intent for a premeditated murder. Under
Massachusetts law, "no particular length of time is required in
order to show deliberate premeditation. It may be a matter of
days, hours, or even seconds. 'It is not so much a matter of time
as of logical sequence.'" Commonwealth v. Coren, 774 N.E.2d 623,
629 (Mass. 2002) (citations omitted) (quoting Commonwealth v.
Palmariello, 466 N.E.2d 805, 816 (Mass. 1984)).
We add another reason: the purported statement by the
bartender was, at best, cumulative. The jury heard that prior to
the altercation, the bartender escorted Walker to the parking lot.
The jury also heard evidence that Walker stated, while arguing with
Davis in the parking lot, "I want to get to my car. No one is
pushing me there." Adding the bartender's statement that before
-6-
the altercation Walker was leaving adds little, if anything, of
value.
This case presents no reason to discuss whatever
refinements of the actual innocence test have been added by House
v. Bell, 126 S. Ct. 2064 (2006). However, we do note that Walker's
suggestion that the evidence underlying the actual innocence claim
in House is comparable to the evidence here is completely
unsupportable. See House, 126 S. Ct. at 2078-86 (cataloging new
evidence in support of petitioner's actual innocence, including new
DNA test results and an alleged confession by the victim's
husband).
The judgment of the district court is affirmed.
-7-