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Clyde Green v. Jon D. Fisher

December 6, 2011

CLYDE GREEN
v.
JON D. FISHER, ET AL.



The opinion of the court was delivered by: Mary A. McLAUGHLIN, J.

ORDER

AND NOW, this 6th day of December, 2011, upon consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the respondents' response thereto, the petitioner's objections to the Report and Recommendation, and after review of the Report and Recommendation of United States Magistrate Judge Arnold C. Rapoport (Docket No. 13), IT IS HEREBY ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The petitioner's objections are OVERRULED;

3. The Petition for Writ of Habeas Corpus is DISMISSED and DENIED without an evidentiary hearing; and

4. Petitioner has neither shown a denial of a constitutional right, nor established that reasonable jurists would disagree with this Court's disposition of his claims. Consequently, a certificate of appealability is DENIED.

5. The Clerk of Court shall mark this case closed for statistical purposes.

The Court discusses below only objections that were not addressed in the Report and Recommendation. To the extent the petitioner's objections merely rehash arguments in his habeas petition, the Court adopts the Report and Recommendation.

1. Petitioner Green objects to the Report and Recommendation's conclusion regarding his actual innocence claim under Schlup v. Delo.*fn1 Objs. at 8-9. The Report and Recommendation concludes that the rape kit evidence on which Green relies does not qualify as "new" evidence because it was known at the time of trial and not wrongly excluded. R&R at 20, id. at 20 n.7. Green objects that evidence does not have to be newly discovered to be considered in a Schlup gateway claim.

The case law is not clear regarding whether evidence excluded under state rape shield law constitutes "new" evidence under Schlup. In Houck v. Stickman, the Third Circuit indicated that evidence is "new" only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence. See 625 F.3d 88, 94 (3d Cir. 2010). The Houck court, however, did not explicitly address whether excluded evidence qualifies as evidence that was not available at trial.*fn2

Nevertheless, the Court need not opine here on whether evidence excluded under state rape shield law constitutes "new" evidence under Schlup because the petitioner has failed to show by a preponderance of the evidence that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Houck, 625 F.3d at 93 (citing Schlup

v. Delo, 513 U.S. at 327).

The Schlup standard for proving actual innocence is a

high one that requires more than merely establishing the existence of reasonable doubt. The Court must assess the probative force of the new evidence in connection with the evidence of guilt adduced at trial. Schlup, 513 U.S. at 332. The new evidence must be "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]" Id. at 316. In a case where new evidence calls into question ...


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