Smith v. Baldwin
Roger Paul SMITH, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee
Attorneys
Thomas J. Hester, Office of the Federal Public Defender, Portland, OR, for the petitioner-appellant., Kathleen Cegla, Assistant Attorney General; Erin C. Lagesen, Assistant Attorney General (argued), Salem, OR, for the respondent-appellee.
Full Opinion (html_with_citations)
MILAN D. SMITH, JR., Circuit Judge, delivered the opinion of the court, in which KOZINSKI, Chief Judge, and KLEINFELD, McKEOWN, WARDLAW, TALLMAN, CLIFTON, BYBEE and IKUTA, Circuit Judges, join.
RAYMOND C. FISHER, Circuit Judge, filed a concurring opinion, in which SCHROEDER, W. FLETCHER, and PAEZ, Circuit Judges, join.
STEPHEN REINHARDT, Circuit Judge, filed a dissent, in which THOMAS, Circuit Judge, joins.
SIDNEY R. THOMAS, Circuit Judge, filed a separate dissent.
We took this case en banc to correct a misconstruction of the Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), “actual innocence” “gateway” by a divided panel of this court in Smith v. Baldwin, 466 F.3d 805 (9th Cir.2006), reh’g en banc granted, 482 F.3d 1156 (9th Cir.2007). The panel erroneously held that
While burglarizing the home of Emmett and Elma Konzelman, either Smith or his criminal companion, Jacob Edmonds, bludgeoned eighty-seven-year-old Mr. Konzel-man to death with a three-foot long crowbar. After Edmonds told police that Smith killed Konzelman, the prosecution offered Edmonds a plea deal contingent on his passing a polygraph examination. The results of the polygraph test were inconclusive, but the examiner opined that Ed-monds had answered the questions truthfully and Edmonds entered the plea deal in exchange for his testimony against Smith. Despite Smith’s request, the prosecution did not reveal the results of Ed-monds’s polygraph.
Believing that Edmonds had passed the polygraph examination, and knowing that Edmonds would testify against him, Smith entered a no contest plea to felony murder and first-degree robbery. Edmonds has now changed his story and claims that Smith did not kill Mr. Konzelman. Ed-monds is unwilling to testify on Smith’s behalf, however, because the state has informed him that he will be prosecuted for the capital murder of Mr. Konzelman if he insists on claiming that Smith was not the person who wielded the lethal crowbar. Smith asserts that the state’s actions constitute prosecutorial misconduct, and he argues that his failure to exhaust his state court remedies should be excused because Smith can show actual innocence, as well as cause and prejudice.
Although the resolution of these issues is not essential to our analysis, in order to more clearly demonstrate Smith’s inability to meet his evidentiary burden, we assume without deciding that two of Smith’s arguments have merit: (1) the state committed prosecutorial misconduct by threatening to prosecute Edmonds for capital murder if he testified on Smith’s behalf; and (2) the proper remedy for the prosecutorial misconduct is to compel the state to grant use immunity to Edmonds in an evidentiary hearing where Edmonds would testify that he, not Smith, killed Emmett Konzelman.
I. Facts and Procedural Background
During the early morning hours of April 4, 1989, after snorting methamphetamine, Smith, Edmonds, and Arlen Bouse
After parking Edmonds’s truck near the Konzelmans’ residence, all three men entered the garage. While in the garage, Smith inadvertently caused the door connecting the garage to the house to slam shut. Startled, the group fled from the garage and Bouse was separated from Smith and Edmonds. Bouse took a beer, a hat, and gloves from the garage and returned to the truck to await Edmonds and Smith. Bouse waited at the truck, but Edmonds and Smith did not return for approximately forty-five minutes.
Although accounts of what happened next occasionally conflict, testimony of several witnesses establishes all the factual elements essential to our analysis. Smith and Edmonds returned to the Konzelman residence and burglarized the house. Before entering the house, Smith and Ed-monds spent some time in the garage. While there, they found two hats to wear as disguises. One man wore a baseball cap or a skull cap and the other wore a fedora hat. Smith and Edmonds also tied bandannas over their faces while in the garage. Both Smith and Edmonds wore gloves, though it is unclear what kind and how many. Edmonds stated that he wore white latex gloves while Smith wore a pair of black leather gloves. Smith, however, has stated that he wore either one or two brown work gloves. In the garage, Smith and Edmonds also found a three-foot-long crowbar and a rope.
Edmonds provided extensive testimony about what happened in the Konzelmans’ residence at Smith’s sentencing hearing (Sentencing Hearing) on November 6 and 7, 1989. Smith’s attorney cross-examined Edmonds at the Sentencing Hearing.
Q. Who turned the light on?
A. Mr. Smith.
Q. Where were you when he turned that light on?
A. Standing in the doorway.
Q. Both of you were standing there in the door-way?
A. Right.
Q. Who had the crowbar?
A. Mr. Smith.
Q. What did you have in your hand?
A. A rope.
Q. Why did you take the rope into the bedroom?
A. In case they woke up and tried to call the cops or something.
Q. As the light was turned on, what did you see Mr. Smith do regarding the two people in the room, the other two, Mr. and Mrs. Konzelman?
A. I seen him just, ah, tell 'em to wake up.
Q. You heard that?
A. Yeah.
Q. Did you see them appear to wake up?
A. I seen Mrs. Konzelman appear to wake up, yeah.
Q. Did you-see Mr. Konzelman?
A. He didn’t wake up right away, so Mrs. Konzelman woke him up.
Q. What happened next?
A. He started to get up and Mr. Smith said to lay back down.
Q. Do you remember how he said that?
A. “Lay back down, old man.”
Q. Did Mr. Konzelman lay down?
A. No. I don’t think he heard him.
Q. What did you see Mr. Smith do then?
*1132 A. I seen him make a threatening gesture with the crowbar first.
Q. And then after he made the gesture what did he do?
A. I don’t know. I said, “I’m getting the fuck out of here.”
Q. While you were in the — still in the room, Mr. Edmonds, did you see anybody hit with that crowbar?
A. No.
Q. Did you leave the room or did you stay?
A. I left the room.
Q. How far away did you go?
A. Garage.
A. How long were you gone?
A. Couple minutes, waiting for him to follow me.
Q. Did he follow you out?
A. No.
Q. What did you do then?
A. I went back in to get him.
Q. When you came back in the bedroom, what happened that you could see when you came back in the bedroom?
A. I seen Mr. Konzelman laying on the floor.
Q. Where was Mrs. Konzelman?
A. Laying on the bed.
Q. Did it appear that anything had happened to either one of those people while you were gone?
A. Mrs. Konzelman, I couldn’t tell. Mr. Konzelman, there was blood on the bed.
Q. While you were there in the bedroom did you see Mr. Konzelman move?
A. Yeah, he got back up on the bed.
Q. As he was doing that, what happened?
A. Nothing. He just got back up on the bed and him and he [sic] wife laid together.
Q. Did you see anybody hit after that?
A. No.
Q. When Mr. Konzelman crawled back on the bed did he appear to have been injured?
A. Yeah.
Q. Why?
A. I don’t know. He just had a lot of blood all over him.
Q. Did there appear to be blood more in one place than any other place?
A. Yeah, the head.
Q. When you first went into the room it didn’t appear that either one of those people were hurt or injured when the light first came on?
A. No, they just looked scared.
Q. You saw him gesture toward them, I think was your term? You left the bedroom.
A. Yeah. I said, “Let’s get the fuck out of here.”
Q. Did Mr. Smith say anything; did he reply to your statement, “Let’s get out of here?”
A. No I didn’t give him time. I was gone.
Q. He could have said, “I’m coming.”
A. He didn’t say anything like that.
Q. But you didn’t hear anything?
A. Right.
Q. You said in the garage and coming back, then you noted there was injuries?
A. Yeah.
Q. At least a lot of blood on the bed?
A. Yes.
Q. And blood on Mr. Konzelman?
A. Right.
Q. Was there anybody else in the house besides the two Konzelman’s and you, and Roger Smith?
*1133 A. No.
Mrs. Konzelman testified at the same hearing, confirming many of the details of Edmonds’s testimony.
Q. After he had come to bed what was the next thing you knew that was going on that wasn’t suppose to be happening?
A. That man standing in my bedroom looking at me.
Q. At that time, Mrs. Konzelman, do you remember one man or two men?
A. There were two men.
Q. Where in your bedroom were they, Ma’am?
A. One was in front of the dresser, the other was in the door.
* * * *
Q. Was the light on or off at that time, Ma’am?
A. I can’t tell you that.
Q. At least there was two men. The light must have been on.
A. I can — I could tell — I could see plainly.
Q. When no one answered, did you check to see if your husband was there with you?
A. I did.
Q. Where was he?
A. He was still asleep right beside me.
Q. As far as you can remember — would you tell the Judge what you remember next happening with these two men and with you and your husband?
A. Well, apparently my husband moved as if he were going to — after I awakened him, as if he were going to do something and the guy said, “Lay down old man.” And that’s about my last memory. Until I felt (indicating) a hit across my forehead.
The police later found the crowbar in the kitchen and the rope in the bedroom. After the beating, Elma Konzelman lay motionless in her bed until convinced the burglars had left the house. She climbed out of bed and when she realized that the intruders had disabled her phones she found her cane and slowly made her way to a neighbor’s house to call for help. Paramedics arrived quickly and rushed the Konzelmans to the hospital. Elma Konzel-man required surgery to implant a metal plate in her head, but she survived. Emmett Konzelman died approximately sixteen hours later as a result of his injuries.
Shortly after the attack on the Konzel-mans, while the police were interrogating Edmonds about an unrelated offense, Ed-monds mentioned that he had attended a Judas Priest concert. An alert police officer recalled that a ticket stub from the same concert was found in the street near the Konzelman residence on the morning following the burglary. Further investigation revealed that the ticket stub belonged to Edmonds and he confessed to participating in the burglary. Edmonds identified Smith and Bouse as his criminal companions and he stated that Smith entered the Konzelmans’ bedroom and beat them with the crowbar. Based on Edmonds’s description of the events and his apparent credibility,
Because Edmonds provided a statement indicating that Smith beat the Konzel-mans, the state offered him a plea agree
Smith faced prosecution for capital murder and he knew that Edmonds would testify against him. Instead of proceeding to trial, Smith elected to enter a plea agreement whereby he pled no contest to felony murder and one count of robbery. The state agreed to drop the remaining charges against Smith. At Smith’s insistence, the state also dropped charges of hindering prosecution against Jeanne Si-mons, Smith’s girlfriend, whom Edmonds had previously implicated in the crime. Although his attorney indicated that he was on some kind of “mild sedative or tranquilizer” during the plea hearing, when questioned by the judge, Smith replied that he did not feel affected by the medication and that he understood what was going on around him. After thoroughly reviewing the charges and likely sentence with Smith, the court accepted Smith’s plea. The sentencing judge stated that the evidence in the record was sufficient to satisfy him that Smith “caused the assault” and he imposed a life sentence with a minimum term of 30 years in prison.
Smith then filed a petition for post-conviction relief in the Oregon Circuit Court. He claimed (1) ineffective assistance of counsel because his trial lawyer failed to properly advise him of potential defenses and “hounded” Smith into pleading no contest, and (2) a violation of his due process rights both because Edmonds’s plea bargain wrongfully exposed Smith to “greater consequences for his acts than are legally justifiable” and because Smith was on drugs when he entered his plea, thus rendering it unknowing and involuntary, notwithstanding his contemporaneous report that he felt unaffected by the drugs. The Oregon Circuit Court denied Smith’s petition on the merits and also denied his request for appointment of new counsel.
The Oregon Court of Appeals appointed new counsel for Smith. On appeal, however, Smith argued only that the Oregon Circuit Court that heard his post-conviction claims should have appointed new counsel for him; he did not challenge the denial of his substantive post-conviction claims on the merits. The Oregon Court of Appeals affirmed without opinion the Circuit Court’s refusal to appoint new counsel for Smith and the Oregon Supreme Court denied review. Accordingly, Smith never presented his substantive post-conviction claims to the Oregon Supreme Court, and thus they are procedurally defaulted.
Meanwhile, Edmonds completed his sentence for the Konzelman robbery and was released from prison. In 1992, Edmonds was arrested on various charges of rape, sodomy, and kidnapping with a firearm, to which he pleaded no contest and was sentenced to life in prison.
On February 16, 1996, Edmonds signed an affidavit reading, in pertinent part:
On April 4, 1989, myself, Roger Smith and Arlen Bouse were involved in a residential burglary. On the above date mentioned Emmit Konzleman [sic] was*1135 bludgeoned to death at the adress [sic] of 3030 South Shore Drive, Albany, OR.
After all incidents occurred [sic] and I had been apprehended and taken into custody, [sic] I stated in a sworn statement that Roger Smith was my codefen-dent and had in fact bludgeoned Emmit Konzleman [sic] to death.
I would like to, for the record [sic] retract that statement. Roger Smith did not kill Emmit Konzleman. [sic]
I am confessing right now that I committed purgory [sic] with full knowledge of the consequences.
The reason I lied under oath was because my attorney of record at the time Thomas Hill led me to believe that Roger Smith was about to testify and leave me to do a life sentence for a crime I did not commit.
The only way for me to set the record straight is to write this confession now.
Based on Edmonds’s recantation, Smith again sought post-conviction relief in state court claiming that the recantation constituted new exculpatory evidence. Smith also claimed that his due process rights were violated because his trial counsel failed to explain the difference between aggravated murder and felony murder, and, given his below-average intelligence and his use of drugs, the trial court further failed to adequately explain the charges against him. The Oregon Circuit Court granted summary judgment for the state and Smith appealed. While the appeal was pending, Smith filed a motion for voluntary dismissal, apparently because he grew frustrated with his attorney and the delays caused by the court granting extensions of time. The court granted Smith’s motion for voluntary dismissal of his state claims and Smith turned to federal court.
In 1997, Smith filed a petition for writ of habeas corpus in the federal district court. Smith raised four substantive claims in his federal habeas petition: (1) the plea resulting in his conviction was not knowing and voluntary; (2) ineffective assistance of counsel during the investigative and trial preparation stages of his case; (3) ineffective assistance of counsel during the plea negotiation/entry stage; and (4) ineffective assistance of counsel in hearings before the Oregon Circuit Court.
While Smith’s federal habeas petition was pending, he received another affidavit from Edmonds, dated July 24, 2001. That affidavit reads in pertinent part:
1. On April 4, 1989, I participated in a residential burglary at 3030 South-shore Drive in Albany, Oregon, along with Roger Smith and Arlen Bouse.
2. I clearly recall the events relating to the burglary and this affidavit is based entirely on my first hand knowledge of those events.
3. During the course of the burglary, an elderly resident of the home, Mr. Emmit Konzleman [sic], was bludgeoned to death.
4. In the underlying prosecution of Mr. Smith and myself, I falsely stated, under oath, that Mr. Smith had bludgeoned Mr. Konzleman [sic], when in fact I knew that he had not.
5. I recognize that my false sworn statement was an act of perjury, and I acknowledged this when I sent a sworn recantation to the Linn County District Attorney in 1996.
6. I know that Mr. Smith did not bludgeon or otherwise strike Mr. Konzle-man [sic] and I know that Mr. Smith never entered the Konzleman’s bedroom, where the killing occurred.
7. I was motivated to falsely implicate Mr. Smith because my trial attorney and others counseled that, by doing so, I could avoid prosecution for murder or aggravated murder.
*1136 8. As a part of my plea agreement in the underlying case, I was required to take a polygraph concerning the murder and I was told that I neither passed or failed that test but that the results were inconclusive.
After receiving the new affidavit from Edmonds, Smith amended his federal ha-beas petition to include two additional claims: (1) Smith’s conviction was unconstitutional because he was actually innocent of felony murder; and (2) Smith’s due process rights were violated under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when the prosecution made a deal with the actual killer and failed to produce the results of Edmonds’s polygraph test when requested.
After receiving a copy of Edmonds’s second affidavit, a state prosecutor met with Edmonds and his newly appointed counsel. The prosecutor informed Edmonds that if he insisted on testifying in accordance with his recantations, the state would seek to set aside his plea agreement in this ease, subjecting Edmonds to capital murder charges for killing Emmett Konzelman. If, however, Edmonds reaffirmed his original testimony identifying Smith as the killer, the state would agree not to pursue perjury charges based on the contents of the affidavits. Edmonds conferred with counsel and decided to invoke his Fifth Amendment rights and refused to testify.
Smith argued that the state’s actions constituted prosecutorial misconduct intended to distort the fact-finding process and he requested that the federal district court order an evidentiary hearing and compel the state to grant use immunity
A majority of a three-judge panel of this court held that “because prosecutorial misconduct in connection with his federal ha-beas proceedings seriously interfered with Smith’s ability to make the necessary showing under Schlup, and because the resultant harm cannot be effectively remedied by less intrusive means, the exculpatory testimony withheld from the court as a result of the state’s actions must be presumed to be true.” Smith, 466 F.3d at 806-07. As a result, the panel majority concluded that “Smith satisfies the Schlup ‘actual innocence’ standard for overcoming a procedural default of his claims insofar as they relate to his felony murder conviction ... and thus Smith is entitled to proceed with his constitutional claims.” Id. at 807. The dissenting judge argued that, even assuming prosecutorial misconduct, “the evidence in this case is still insufficient to qualify Smith for Schlup v. Delo’s actual innocence gateway.” Id. at 829 (Bybee, J., dissenting). We agreed to rehear this case en banc. We focus our analysis primarily on whether Smith can overcome his procedural default either by demonstrating actual innocence under
II. Standard of Review and Jurisdiction
Smith’s federal habeas petition was filed after April 24, 1996, and is thus governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Woodford v. Garceau, 538 U.S. 202, 204, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). We review de novo the district court’s decision to dismiss the federal ha-beas petition for procedural default. Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir.2000). The district court’s denial of an evidentiary hearing pursuant to AEDPA is reviewed for abuse of discretion. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). We review the district court’s relevant factual findings for clear error. Barajas v. Wise, 481 F.3d 734, 738 (9th Cir.2007).
We have appellate jurisdiction over the district court’s denial of the petition under 28 U.S.C. § 2253.
III. Analysis
Smith’s amended federal habeas petition raised six claims: (1) lack of a knowing and voluntary plea; (2) ineffective assistance of counsel during the investigative and trial preparation stages of this case; (3) ineffective assistance of counsel during the plea negotiation/entry stage of this case; (4) ineffective assistance of counsel in hearings before the Oregon Circuit Court; (5) actual innocence of felony murder, rendering Smith’s conviction unconstitutional; and (6) violation of Smith’s due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when the prosecution made a deal with the actual killer and failed to comply with Smith’s request to produce the results of Edmonds’s polygraph test. The district court declined to address these claims on the merits because it determined that they were procedurally defaulted. The district court also denied Smith’s request for an evidentiary hearing and found that the state did not commit prosecutorial misconduct leading to Edmonds’s decision not to testify on behalf of Smith.
On appeal, Smith argues that (1) his federal habeas claims are not procedurally defaulted, (2) even if they are defaulted, such default is excused because of actual innocence as well as cause and prejudice, (3) Smith is at least entitled to an eviden-tiary hearing, and (4) the state committed prosecutorial misconduct.
Given our holding in this case and because it highlights the weakness of Smith’s case, we assume, arguendo, that Smith is entitled to an evidentiary hearing and that the state committed prosecutorial misconduct. As noted, however, we do not presume Edmonds’s affidavits to be “credible, for purposes of resolving the question whether Smith’s procedural default should bar him from presenting his habeas claims on the merits,” as required by the panel majority. Smith, 466 F.3d at 828. Even if we assume that the state committed prosecutorial misconduct by threatening to seek the death penalty against Edmonds if he testified on behalf of Smith, and that the state should be forced to grant use immunity to Edmonds at an evidentiary hearing at which he would testify that he, rather than Smith, killed Mr. Konzelman, Smith still cannot overcome his procedural default because he cannot show either actual innocence of felony murder or cause and prejudice from the default.
A. Smith’s federal habeas claims are procedurally defaulted.
Before a federal court may consider the merits of a state prisoner’s petition for a writ of habeas corpus, the prisoner
Smith raises several constitutional claims in his federal habeas petition, none of which he properly exhausted in state court. In his first round of state post-conviction proceedings, Smith abandoned all substantive claims and challenged on appeal only the denial of his motion for new counsel by the state trial court on post-conviction review. Smith abandoned all federal claims raised in his second post-conviction action when the court granted his motion to voluntarily dismiss the appeal.
Smith presents two arguments on appeal to excuse his failure to raise his claims before the Oregon courts, neither of which help him. Smith notes that, despite a petitioner’s failure to exhaust his state remedies, a federal court will consider the merits of a federal habeas petition when “circumstances exist that render [the state post-conviction] process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). First, Smith argues that Oregon’s post-conviction process was ineffective because, with respect to his first petition, the original post-conviction court denied his request for new counsel and, on appeal, the state court denied Smith’s request to depose his trial counsel and the prosecutor. Second, Smith argues that Oregon’s post-conviction process was ineffective because the post-conviction trial court denied his second petition by holding that it could not allow relief based on newly-discovered evidence of actual innocence under Or.Rev.Stat. § 138.530(1) (2005).
B. Smith cannot overcome his procedural default.
On federal habeas review under AEDPA, generally “[w]e may not reach the merits of proeedurally defaulted claims.” Williams v. Stewart, 441 F.3d 1030, 1061 (9th Cir.2006) (per curiam). However, a petitioner can overcome procedural default and obtain federal review of the merits of his claim in one of two ways. First, a petitioner overcomes procedural default if he presents sufficient evidence to “demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To make this showing, a petitioner’s case must fall within the “narrow class of cases ... [involving] extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Second, a petitioner may overcome procedural default by making “an adequate showing of cause and prejudice” for his failure to exhaust his state court remedies. Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Because we conclude that Smith has demonstrated neither actual innocence nor cause and prejudice, we cannot consider the merits of Smith’s proeedurally defaulted federal ha-beas petition.
1. Actual Innocence
We will excuse Smith’s procedural default if he can make the requisite showing of actual innocence of his conviction for felony murder. See Schlup, 513 U.S. at 315-16, 115 S.Ct. 851.
In this case, Smith pled no contest to felony murder, an offense with which he was charged because Emmett Konzelman was killed in the course of the burglary committed by Smith and Edmonds. Smith does not dispute his involvement in the burglary, but instead rests his actual innocence claim on Oregon’s affirmative defense to felony murder, which has five statutory elements. See Or.Rev.Stat. § 163.115(3) (2005). Had Smith gone to trial on the felony murder charge, he would have had the burden of proving all five elements of the affirmative defense by a preponderance of the evidence. Id. § 161.055(2). Accordingly, to pass through the Schlup actual innocence gateway, Smith must prove that it is more likely than not that no reasonable juror would have found that he failed to establish any of the five elements of the affirmative defense by a preponderance of the evidence. See Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir.2003); Griffin v. Johnson, 350 F.3d 956, 963-64 (9th Cir.2003).
Oregon’s statutory affirmative defense to felony murder requires Smith to prove that he:
(a) Was not the only participant in the underlying crime;
(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof;
(c) Was not armed with a dangerous or deadly weapon;
(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and
(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death.
Or.Rev.Stat. § 163.115(3). Because Smith and Edmonds both participated in the burglary of the Konzelman residence, the state does not dispute that Smith has established element (a). Each of the remaining four elements is contested. Even though we assume, arguendo, that the state engaged in prosecutorial misconduct and that Edmonds would testify at that hearing that he, not Smith, was the true killer, we hold that Smith cannot meet his high burden of establishing actual innocence of felony murder under Schlup because he cannot meet the requisite eviden-tiary burden for all five elements of his
(b) “Did not commit the homicidal act”
The second element of the affirmative defense requires Smith to prove, by a preponderance of the evidence, that he was not Mr. Konzelman’s actual killer. Or. Rev.Stat. § 163.115(3)(b). We have assumed for purposes of this analysis that, granted use immunity, Edmonds would testify to this effect. We do not assume, however, that every reasonable juror would believe him.
Edmonds, taking the stand in Smith’s defense, would be confronted with the numerous inconsistent statements he has made under oath and to his cellmate in prison. He would have his contradictory statements to the police read into the record to impeach his credibility. He would be forced to refute his prior testimony at Smith’s Sentencing Hearing, where he recounted, in detail, seeing Smith with the crowbar in his hand and threatening Mr. Konzelman, leaving, and returning to find Mr. Konzelman battered on the floor and a pool of blood on the bed where he had been lying. See Fed.R.Evid. 801(d)(1) (admitting prior statements to prove the truth of the matter asserted therein where de-clarant testified under oath and was subject to cross examination). This refutation would be no less difficult for the fact that his prior testimony is substantially corroborated by that of Mrs. Konzelman, the only surviving victim of what occurred in the Konzelmans’ bedroom. Edmonds’s prior testimony that Smith woke the Kon-zelmans by turning on the lights and that he was standing behind Smith in the doorway when Smith entered the room, his description of the confrontation between Mr. Konzelman and Smith, and his statement that he left the doorway shortly before the beating occurred, all correspond to Mrs. Konzelman’s description of the same events, given in the same proceeding. The fact that the police found the rope (which Edmonds admitted to carrying) in the bedroom is further evidence that he was there.
Even Edmonds’s wholesale disavowal of parts of his previous testimony would not exculpate Smith. Edmonds would, for example, have to reconcile the inconsistencies in the two affidavits. In his February 1996 affidavit, Edmonds wrote both that “Roger Smith did not kill Emmit Konzle-man [sic]” and that Edmonds lied because “Roger Smith was about to testify and leave [Edmonds] to do a life sentence for a crime [Edmonds] did not commit.” It is undisputed, however, that one of them was the killer. His second, 2001 affidavit, on the other hand, states merely that he committed perjury to avoid being sent to prison. This would be consistent with the first statement of his 1996 affidavit, but in tension with the second. That second affidavit, which states categorically that “Mr. Smith never entered the Konzleman’s [sic] bedroom, where the killing occurred,” also contradicts Mrs. Konzelman’s testimony that both burglars were in the room at one point, as well as what Edmonds told the police under oath, and what he told his cellmate while he was in prison.
Edmonds would also have to convince the jurors that they should believe him now, with no corroborating evidence, when the statute of limitations on perjury has expired,
Edmonds’s recantation changes little. A reasonable juror would still have sufficient evidence to believe that Smith was more likely than not the real killer, and Smith certainly cannot meet his burden by a preponderance of the evidence.
The third element of the affirmative defense requires Smith to prove, by a preponderance of the evidence, that he “[w]as not armed with a dangerous or deadly weapon.” Or.Rev.Stat. § 163.115(3)(c). We note that the retraction in both of Ed-monds’s affidavits is limited to his “sworn statement” but makes no reference to his testimony at Smith’s Sentencing Hearing or what he told his cellmate. Moreover, while some of the statements in the affidavit flatly contradict parts of his Sentencing Hearing testimony (for example, that “Mr. Smith did not bludgeon or otherwise strike Mr. Konzleman[sie] and ... that Mr. Smith never entered the KonzIeman’s[sic] bedroom, where the killing occurred”), it is completely silent about the rest of his statements. If a reasonable juror could somehow manage to believe every word in both Edmonds’s affidavits, he or she could still find much to believe in Edmonds’s Sentencing Hearing testimony that is not mentioned or contradicted in either affidavit.
For example, at the Sentencing Hearing, Edmonds testified that he found Smith holding the crowbar in the Konzelmans’ bedroom, and that he shortly thereafter threatened Mr. Konzelman with it. Wdiile he has disavowed his statement that Smith was in the Konzelmans’ bedroom, he has not changed his story that Smith was holding the crowbar. A reasonable juror could still credit this part of Edmonds’s Sentencing Hearing testimony, and find that Smith, at some point in the evening, held the crowbar. A reasonable juror who found it as likely as not that Smith held the crowbar at some point in the evening would be compelled to find that Smith had failed to establish the third element of his affirmative defense, and find Smith guilty.
(d) “Had no reasonable ground to believe that [Edmonds] was armed with a dangerous or deadly weapon”
The fourth element of the affirmative defense requires Smith to show that he “[h]ad no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon.” Or.Rev. Stat. § 163.115(3)(d). Even assuming that a reasonable juror really believed the core of Edmonds’s new story — that he, not Smith, was the true killer — the record demonstrates that such a juror would still conclude that Smith had reason to believe that Edmonds was armed with a dangerous weapon, and thus that Smith’s affirmative defense to felony murder fails.
It is undisputed that Emmett Konzel-man died as a result of being beaten with a three-foot-long crowbar at the hands of either Smith or Edmonds. Assuming that Edmonds was the killer, we do not believe that all reasonable jurors would find by a preponderance of the evidence that Ed-monds successfully concealed such a large, curve-ended weapon from Smith’s sight (three feet being almost the length of an average baseball bat) during the forty-five minutes that Edmonds and Smith were in the garage and burglarizing the home.
It is undisputed that the crowbar came from the Konzelmans’ garage. Smith and Edmonds were in the garage together planning their criminal enterprise for some time before entering the house. Although the garage was dark, the record suggests that Edmonds may have had a lighter and Smith a flashlight. Whatever the light source, the record indicates that Smith and Edmonds must have had sufficient light to identify various objects within the garage, since they found and removed from the garage, among other things, the hats they wore to disguise themselves, the rope, and the crowbar. If Edmonds located and removed the crowbar in the garage before
A reasonable juror could find that Smith and Edmonds entered the house at or around the same time. In one account, Edmonds told police that he and Smith “masked ourselves with bandanas and ... we went in the house.” In another statement, Edmonds stated that he and Smith were together in the living room immediately after entering the house. At Smith’s Sentencing Hearing, Edmonds testified that he entered the house first and Smith followed right behind him.
The record also contains evidence that Smith had reason to know that Edmonds was armed with the crowbar when he was in the Konzelmans’ bedroom. Mrs. Kon-zelman testified that when she awoke, she saw the attacker standing next to the dresser in the bedroom while the other burglar briefly stood in the bedroom doorway, before proceeding down the hallway. Mrs. Konzelman also testified that the attacker picked up the crowbar from the ground before he began striking Mr. Kon-zelman. Assuming Edmonds was the killer, a reasonable juror could conclude that Smith saw the crowbar in the bedroom, even if Edmonds was not holding it in his hand when Smith briefly stopped at the bedroom door before the attack. Furthermore, it is entirely plausible that Smith returned to the bedroom doorway when he heard the beating, or that he moved to a vantage point in the hallway from which he was not visible to Mrs. Konzelman but could still see the attack. None of these scenarios is contradicted by the evidence, including Edmonds’s two recantation affidavits. Based on this evidence, a reasonable juror could find that Smith had reason to know that Edmonds was armed when in the bedroom where he initiated the fatal attack.
In addition, Smith admitted that he took a rope from the garage and brought it into the Konzelman residence. The rope was later found on the bedroom floor and the crowbar was discovered in the kitchen. Accordingly, even assuming that Edmonds carried the crowbar and Smith the rope, the ultimate placement of the objects permits the reasonable inference that Smith and Edmonds crossed paths while Ed-monds had the crowbar and Smith the rope, or that Edmonds took the rope from Smith at some point before the beating.
Smith also entered a plea of no contest to the robbery charge, which alleged that “the said defendant(s) ... did use a dangerous weapon, to-wit: a crowbar.... ” It makes no difference whether Smith’s plea meant that Edmonds used the crowbar (as opposed to Smith); it constituted an admission that he knew the crowbar was used.
Judge Reinhardt’s dissent criticizes us for “relying almost entirely on Edmonds’s
But, as Judge Reinhardt’s dissent notes, Edmonds would not be alone — Smith himself could testify about the circumstances of the crime. His 1992 deposition testimony in his initial post-conviction proceeding, however, would undermine any current claim that he was unaware that Edmonds had a crowbar with him in the house. One of Smith’s habeas claims was that trial counsel had failed to properly pursue and advise him about possible defenses. At the outset of the deposition, counsel for the State Attorney General explained to Smith that “[t]his is my opportunity to clarify what you are complaining about in your petition.” When asked “what defenses do you think that you had to this crime,” Smith stated that trial counsel should have “raised the evidence” that “Edmonds did it and not me.” When Smith was asked whether there were any other defenses, Smith said he was not “legally adapted” to respond. State counsel then offered to let Smith consult with his lawyer:
Well, do you need to talk to your attorney to get some idea of some other legal defenses that you think he should have raised because this is the only chance you’re going to get to tell me what you....
The parties went off the record and Smith consulted with his attorney. After noting for the record that Smith had consulted with his counsel, the State attorney asked again, “What other defenses do you think trial counsel should have raised on your behalf?” Smith responded:
A. He should have raised the defense that what happened that night was not intended to happen.
Q. You mean Mr. Edmonds didn’t intend to kill those people?
A. Yeah.
Smith’s counsel clarified, “I think what he means is that he [Smith] didn’t intend to kill anybody.” State counsel then interjected, “But he told me earlier that Mr. Edmonds did the killing, not him;” whereupon Smith further explained, “Well, like I didn’t know that he was going to do it.” Smith was given additional opportunities to raise other defenses his trial attorney should have raised, but not once during this deposition did he state that he had no reason to believe that Edmonds had the crowbar.
If Smith was unaware that Edmonds had the crowbar — as opposed to being unaware Edmonds had the intent to use the crowbar to kill — he likely would have said so. That he did not say so when given ample opportunity leads to the conclusion either that he knew that Edmonds had a crowbar or that Smith himself went into the bedroom with the crowbar. Throughout the plea colloquy, two-day Sentencing Hearing, and his 1992 deposition, Smith never made the simple statement that he did not know and had no reason to believe a crowbar had been brought into the Kon-zelmans’ bedroom. The reason for this is obvious.
2. Cause and Prejudice
Although Smith has failed to show actual innocence under Schlup, he can still overcome his procedural default if he makes “an adequate showing of cause and prejudice” relating to his failure to exhaust his state court remedies. Strickler, 527 U.S. at 282, 119 S.Ct. 1936. To make this showing, Smith must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Smith argues that his procedural default is excused based on cause and prejudice because (1) his state post-conviction counsel was ineffective, and (2) the prosecution committed Brady error by wrongfully withholding Edmonds’s polygraph results. Both arguments fail.
Smith argues that cause exists to excuse his procedural default because his first post-conviction counsel abandoned his role as Smith’s legal representative by failing to depose Smith’s trial counsel, the trial prosecutor, and the jail doctor. At the first post-conviction trial proceedings, the state introduced affidavits from Smith’s trial counsel and the trial prosecutor, and Smith argues that his post-conviction counsel’s decision not to question these witnesses in a prior deposition constituted ineffective assistance. In response to the court’s questioning, Smith’s post-conviction counsel explained that he did not depose these witnesses because they would not provide any assistance to Smith’s case. He stated that “it would be to Mr. Smith’s detriment to question these people further because, in my opinion, they would only further damage his case rather than help.” Smith argues that his counsel’s inaction prevented Smith from properly presenting his substantive post-conviction claims in state court,
In order to establish cause for a procedural default, a petitioner must demonstrate that the default is due to an external objective factor that “ ‘cannot fairly be attributed to him.’ ” Manning, 224 F.3d at 1133 (quoting Coleman, 501 U.S. at 753, 111 S.Ct. 2546). Because “[t]here is no constitutional right to an attorney in state post-conviction proceedings,” Coleman, 501 U.S. at 752, 111 S.Ct. 2546, attorney inef
Smith seeks to avoid this rule by arguing that his post-conviction counsel’s failure to depose the relevant witnesses resulted in counsel abandoning Smith, which qualifies as an external objective factor that caused Smith’s failure to exhaust his state remedies. See id. at 754, 111 S.Ct. 2546. Although Smith voiced his disapproval of his post-conviction counsel’s strategic decisions, he has failed to show that those decisions rose to the level of an external objective factor causing the procedural default. The alleged errors of his attorney in the first state post-conviction trial proceedings did not prevent Smith from thereafter raising his substantive post-conviction claims with the Oregon Court of Appeals and the Oregon Supreme Court. See Custer v. Hill, 378 F.3d 968, 974-75 (9th Cir.2004) (holding that a federal habeas petitioner could not rely on state post-conviction attorney errors to overcome procedural default when the petitioner did not preserve the substantive claims by presenting them pro se to the Oregon Supreme Court).
Next, while Smith procedurally defaulted on his Brady claim by raising it for the first time in his federal habeas petition, he argues that there is cause and prejudice to excuse the default because the state wrongfully withheld the results of Ed-monds’s polygraph examination. The results of that examination, in which Ed-monds stated that Smith killed Emmett Konzelman, were inconclusive. The polygraph examiner nevertheless gave his opinion that Edmonds had answered the questions truthfully and the state followed through with its plea offer to Edmonds. Smith requested a copy of the results immediately, but the state refused to divulge them. Smith claims that he assumed that Edmonds passed the polygraph because it was an express condition of the plea deal offered to Edmonds. When Edmonds’s second recantation affidavit revealed that the results of the polygraph examination were inconclusive, Smith again requested the results, and the state finally gave a copy to Smith while his federal habeas petition was pending in the district court. Smith contends that the state’s withholding of the polygraph results for so long constitutes cause and prejudice to excuse the procedural default of his Brady claim.
Prejudice ensues if the evidence that is withheld is considered “material.” Id. Evidence is material under Brady if there is a “reasonable probability” that the outcome would have been different if the prosecution had not withheld the evidence. Jernigan, 492 F.3d at 1053 (citing Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Generally, the test of materiality is whether the evidence “undermines confidence in the outcome of the trial.” United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (emphasis added). When the accused enters a plea rather than proceeding to trial, however, materiality is determined by “whether there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial.” Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir.1995).
Under these standards, the results of Edmonds’s polygraph examination were not material, and thus the state’s delay in revealing them was not prejudicial to Smith. In the Oregon Circuit Court, where Smith entered his no contest plea, the results of polygraph examinations are inadmissible because they are “inherently prejudicial.” State v. Terry, 333 Or. 163, 37 P.3d 157, 165 (2001); see also State v. Lyon, 304 Or. 221, 744 P.2d 231, 232 (1987) (holding that polygraph test results are inadmissible in Oregon courts even if the parties stipulate as to their admissibility). Because they are inadmissible in Oregon courts, the results of Edmonds’s polygraph examination do not qualify as “evidence” for Brady purposes, let alone “material evidence.” Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (per curiam). Thus, it is not reasonably probable that the immediate disclosure of the polygraph results would have influenced Smith’s decision to plead no contest rather than proceed to trial because Smith “could have made no mention of them either during argument or while questioning witnesses” or at any other point in the trial. Id. Therefore, we find that, even assuming that Smith could demonstrate cause, he cannot show prejudice based on the state’s delay in revealing the results of Edmonds’s polygraph examination because those results are inadmissible in Oregon court. Accordingly, Smith cannot overcome the procedural default of his Brady claim.
IV. Conclusion
We hold that Smith procedurally defaulted the claims in his federal habeas petition, and we cannot excuse his default because he has failed to demonstrate actual innocence or cause and prejudice. Accordingly, we do not reach the merits of Smith’s petition.
We vacate Smith v. Baldwin, 466 F.3d 805 (9th Cir.2006), reh’g en banc granted,
AFFIRMED.
. We do not endorse the three-judge panel majority’s novel addition to our requirement that the prosecution grant use immunity, but merely assume it to show that even under this more stringent standard we must affirm the district court.
. The record is unclear as to whether Mr. Bouse’s first name is "Arlen” or "Marlin.” The district and magistrate judges both used "Arlen,” but the sentencing transcript from the state court used "Marlin.”
. When police told Edmonds that they found his ticket stub at the scene, he put his head down on the table and began to cry. In addition, Edmonds made statements to his cellmate in prison that corroborated the version of events Edmonds gave to the police.
. Smith does not challenge his sentence in the current federal habeas petition.
. When a witness receives a grant of use immunity, "while the government may prosecute the witness for an offense related to the subject matter of the witness’s testimony, the testimony itself and any ‘fruits' thereof may not be used against the witness in any criminal case except a prosecution for perjury arising out of the testimony.” United States v. Lord, 711 F.2d 887, 890 (9th Cir.1983).
. Smith did properly exhaust on direct review his Eighth Amendment challenge to the length of his sentence, but he does not raise that claim in his federal habeas petition.
. Or.Rev.Stat. § 138.530(1) (2005):
(1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
(a)A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.
(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.
. Based on the briefs, record, and oral argument, we conclude that Smith challenges only the procedural default with respect to his conviction for felony murder and not with respect to his conviction for robbery. Smith does not offer any facts or arguments to support a claim of actual innocence of the robbery conviction or to otherwise excuse his procedural default concerning that conviction.
. We recognize that in Schlup the Supreme Court made the actual innocence gateway available to a federal habeas petitioner who was convicted following a jury trial, while in this case, Smith entered a no contest plea in state court rather than proceeding to trial. We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. See Bousley v. United States, 523 U.S. 614, 629-36, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (Scalia, J., dissenting). For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to Smith. We do not determine whether the Schlup actual innocence gateway always applies to petitioners who plead guilty (or no contest), but in this case, the state has not raised the argument and, more importantly, Smith has failed to satisfy the requirements of Schlup. Thus, the question is ultimately irrelevant for purposes of the habeas petition under consideration.
. A perjury charge for Edmonds's testimony at Smith’s Sentencing Hearing would be barred by the statute of limitations.
. Curiously, our dissenting colleagues are unhappy that we make what they refer to as "credibility findings,” Reinhardt, J., dis. op. at 1156, in evaluating evidence a reasonable juror might review in making a Schlup "actual innocence” determination in this case. They had no hesitancy in making similar determinations themselves when they participated as en banc members of the majority making a Schlup "actual innocence” evaluation in Carriger v. Stewart, 132 F.3d 463 (9th Cir.1997) (en banc). In Carriger, the allegedly exculpating witness had originally testified against the petitioner, then testified in a post-conviction proceeding that he, himself, was the real murderer, then retracted the confession three weeks later. Id. at 471-72. By the time the petitioner made a Schlup actual innocence argument, the exculpating witness was unavailable to testify because he was dead. Id. at 472-73. Nonetheless, the Carri-ger court deemed the confession credible— when neither the state court nor federal district court in the Schlup proceeding had witnessed it-and deem its subsequent retraction incredible. Id. at 473-76. Notably, the majority stated, "the fact that [the accusing witness] confessed without immunity and overwhelmingly against his own penal interest is a strong indicator of his reliability.” Id. at 475. We respectfully suggest that our dissenting colleagues are being inconsistent when they criticize us for drawing the opposite inference with respect to a witness who thought he could recant, and possibly help his partner in crime, without any personal consequences.
Further, we note that this is not a true "credibility finding” based on a lower court’s direct observation of a witness on the stand. It is quite the opposite, in fact — here, we evaluate potential testimony that no judge or jury has ever heard. It does not matter to our analysis whether the witness is actually telling the truth — the purpose of a credibility determination — but rather we care only whether all reasonable jurors would choose to believe the proffered testimony.
. At the Sentencing Hearing, Edmonds, contradicting his statement to the police, denied being near Smith during much of the burglary. A reasonable juror who thought that Ed-monds was “attempting to pin the murder on his partner in the robbery,” Reinhardt, J., dis. op. at 1160, might conclude that the earlier version of the story, where the two were together in the. house, is the true statement. It would only be natural that a burglar, trying to exculpate himself, would lie to place as much distance as possible between himself and his accomplice (and, by extension, the killing). It would make litde sense, by contrast, to lie about the two being in the same room together when they were not.
. In his first state post-conviction petition, Smith alleged (1) ineffective assistance of counsel because his trial lawyer failed to properly advise him of potential defenses and "hounded” Smith into pleading no contest, and (2) the violation of his due process rights because Edmonds's plea bargain wrongfully exposed Smith to "greater consequences for his acts than are legally justifiable” and because Smith was on drugs when he entered his plea, thus rendering it unknowing and involuntary.
. Smith’s reliance on our decision in Manning v. Foster, 224 F.3d 1129 (9th Cir.2000), to establish cause based on attorney errors in the post-conviction process is misplaced. In Manning, we held that a petitioner could excuse his procedural default when post-conviction counsel errors, "though not constitutionally defective, were not attributable to him because they were both unauthorized and tainted by a conflict of interest.” 224 F.3d at 1135 (emphasis added). Smith has not alleged that a conflict of interest caused the ineffective assistance of his post-conviction counsel.