                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                   September 13, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court


 A BRON A RR IN G TO N ,

                Petitioner-A ppellant,                   No. 05-1221
          v.                                         District of Colorado
 M ICH AEL W ILLIAM S; ATTO RN EY                   (D.C. No. 01-Z-1447)
 G EN ER AL O F TH E STA TE O F
 C OLO RA D O ,

          Respondents - Appellees.




                             OR D ER AND JUDGM ENT *


Before SE YM OU R, HA RTZ, and M cCO NNELL, Circuit Judges.


      This order and judgment lays to rest a second appeal concerning a petition

for a writ of habeas corpus filed by Abron Arrington, a state prisoner proceeding

pro se. Because M r. Arrington’s constitutional claims are procedurally defaulted

and he has failed to satisfy the “actual innocence” exception for procedural

default, we affirm the judgment of the district court.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                     I. Factual and Procedural Background

      M r. Arrington is serving a life sentence for first-degree felony murder,

second-degree burglary, and aggravated robbery at the Centennial Correctional

Facility in Canon City, Colorado.   He filed an application for a writ of habeas

corpus under 28 U.S.C. § 2254 on July 27, 2001, while proceedings for

postconviction relief in state court were still pending. The district court

dismissed the petition as procedurally barred on October 30, 2001, but in October

2002 this Court held that “[b]ecause of the unusual posture of this case,” the

district court “lacked all the information necessary” to decide the issue of

procedural default. Arrington v. W illiams, 51 Fed. Appx. 804, 806 (Oct. 15,

2002) (unpublished opinion). W e granted a certificate of appealability (COA) and

remanded M r. Arrington’s case with instructions to “re-examine whether

Arrington’s claims are procedurally barred.” Id. at 806.

      On remand, in April 2005, the district court held that M r. Arrington had

indeed procedurally defaulted his constitutional claims by failing to seek

discretionary review of his request for postconviction relief from the Supreme

Court of Colorado.   In rejecting M r. Arrington’s argument that he qualifies for

the “actual innocence” exception for procedural default, the district court held:

      M r. Arrington fails to present any new reliable evidence or make any
      argument relevant to that exception to the procedural default rule.
      He merely cites to the testimony of witnesses w ho did testify, to
      testimony that apparently was presented to his defense counsel but
      was not presented at trial, and to testimony that he speculates w ould

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      have been relevant at trial. This argument does not raise a claim of
      actual innocence.

R. Doc. 25, at 7.

      In one of his pleadings before the district court, however, M r. Arrington

had submitted excerpts from proceedings in August 1996 concerning a request for

state postconviction relief by M onte Hankenson, a government witness at M r.

Arrington’s trial in November 1993. The excerpts suggested that M r. Hankenson

had admitted to committing perjury at M r. Arrington’s trial, but that— in the

words of a senior trial court judge— “he had gotten away with it.” Resp. to Order

to Show Cause, O ctober 19, 2001, at 29–30. This Court granted a second COA

on January 9, 2006, “limited to whether M r. Arrington satisfies the ‘actual

innocence’ exception for claims otherwise barred due to procedural default, based

on evidence that M r. H ankenson committed perjury at M r. A rrington’s trial.”

Order of Jan. 9, 2006, at 4; see Coleman v. Thom pson, 501 U.S. 722, 750 (1991).

                                   II. Discussion

      To qualify for the “actual innocence” exception, M r. Arrington must

provide evidence of a “fundamental miscarriage of justice,” meaning that “a

constitutional violation has probably resulted in the conviction of one who is

actually innocent.” M urray v. Carrier, 477 U.S. 478, 495–96 (1986). That

standard requires M r. Arrington to “support his allegations of constitutional error

with new reliable evidence— whether it be exculpatory scientific evidence,



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trustworthy eyewitness accounts, or critical physical evidence— that was not

presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). As a result,

fundamental miscarriages of justice are “extremely rare.” Id. The petitioner

bears the burden to present new evidence so persuasive that “more likely than not,

in light of the new evidence, no reasonable juror would find him guilty beyond a

reasonable doubt.” House v. Bell, 126 S. Ct. 2064, 2077 (2006).

      M r. Arrington argues that M r. Hankenson committed perjury in two w ays,

each of w hich demonstrates his actual innocence. First, according to M r.

Arrington, the excerpts reveal that M r. Hankenson had reached a deal with

prosecutors to reduce his sentence in exchange for his testimony, contradicting

M r. Hankenson’s testimony at trial that no such deal existed. Second, according

to M r. Arrington, the excerpts show that M r. Hankenson committed perjury

“regarding matters of material fact.” Response to Order to Show Cause 27.

      A. Perjury Concerning the Existence of a Deal W ith Prosecutors

      Before the district court, M r. Arrington submitted short excerpts— no more

than a few sentences— from several hearings that made mention of negotiations

between M r. Hankenson and prosecutors. At an A ugust 15, 1996 hearing on M r.

Hankenson’s motion for sentence reconsideration under Rule 35(b) of the

Colorado Rules of Criminal Procedure, a prosecutor told the court:

      Judge[,] this would normally be well beyond the time limit where the
      court would consider a[ ]35(b). W e’re here because part of the
      original understanding was that by mutual agreement that the court

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      would retain jurisdiction for this purpose. . . . So M r. Hankenson
      might be a[ ]witness as he was in some of the later trials.

Id. at 26 (emphasis removed). 1 At another hearing, the date and subject matter of

which are not disclosed in M r. Arrington’s pleadings, an attorney for co-

defendant James Carroll called Lee Rosenbaum, M r. Hankenson’s attorney, to

testify about “a conversation that was had between [M r. Rosenbaum], [J]udge

Railey, and [a prosecutor] about a plea agreement between Hankenson and the

prosecution.” Id. (emphasis removed). M r. Arrington argues that his conviction

was predicated on the prosecution’s presentation of M r. Hankenson as

“thoroughly rehabilitated, pristine, and free of any underlying motive for

testifying,” id. at 29, and that proof that M r. Hankenson lied about the existence

of an agreement therefore tends to show actual innocence.

      The trouble is that these excerpts do not contradict M r. Hankenson’s

testimony. According to the State, the prosecution agreed to allow M r.

Hankenson to seek a sentence reduction outside the normal time limit, but did not

agree to recommend a lower sentence. Answer Br. 17 (characterizing the



      1
        Although we have described the materials submitted by M r. Arrington as
“excerpts,” he has not provided complete or partial transcripts of the hearings.
Instead, he has retyped portions of the transcripts in his briefs, introducing
numerous grammatical errors, adding emphasis without so indicating, and
occasionally inserting his own comments parenthetically. Needless to say, our
inability to corroborate M r. Arrington’s transcription of the transcripts affects the
weight of the evidence. See, e.g., R. Doc. 3, App. Doc. 22, at 9 (excerpting the
same portion of the transcript of M r. Hankenson’s sentence reconsideration
hearing, but using noticeably different language).

                                          -5-
agreement as a “procedural favor,” not a promise of sentence reconsideration).

The excerpts provided by M r. Arrington are fully consistent with such a

concession: M r. Hankenson himself alerted the jury of a pending hearing to

reconsider his sentence, which had been “put off” until after M r. Arrington’s trial.

People v. Arrington, No. 00CA1854, at 8 (Colo. Ct. App. June 13, 2002)

(unpublished). 2 Although M r. Arrington derides this line of argument as

“sheepish waffling” that prevented his counsel from “pin[ning] down Hankenson”

at trial, Reply Br. 4, he has not pointed to any statements by M r. Hankenson that

misrepresent the nature of the “understanding” he had reached with prosecutors.

These excerpts therefore do not establish that M r. Hankenson lied at M r.

Arrington’s trial.

      M oreover, evidence that M r. Hankenson mischaracterized the agreement

with prosecutors would not have affected the balance of the evidence such that

“any reasonable juror w ould have reasonable doubt” about M r. A rrington’s guilt.

House, 126 S. Ct. at 2077. Evidence of the deal could have suggested that M r.

Hankenson could not be trusted because he hoped to obtain a reduced sentence.

Impeachment evidence seldom provides a basis for finding a miscarriage of

justice, however, as it is “a step removed from evidence pertaining to the crime

itself.” Calderon v. Thom pson, 523 U.S. 538, 563 (1998). Also, the jury already

      2
        At the State’s request, we take judicial notice of the unpublished decisions
of the state courts in M r. Arrington’s direct appeal and request for postconviction
relief. See Answer Br., Attachment B.

                                         -6-
had ample reason to doubt M r. Hankenson’s testimony. At trial, he not only

“acknowledged he had lied under oath in a prior proceeding and at his sentencing

hearing,” but admitted that “he was almost charged with perjury” and only

escaped prosecution because “the district attorney agreed not to do so.”

Arrington, No. 00CA1854, at 8. He even told the jury that he remained hopeful

for leniency at his upcoming sentencing hearing. W hether the jury found M r.

Hankenson’s testimony credible despite these admissions, or based its verdict on

other evidence at trial, evidence of a “procedural favor” granted by prosecutors

could not have changed the result.

      M r. Arrington’s reliance on Giglio v. United States, 405 U.S. 150 (1972), is

misplaced. That case held that, under some circumstances, the government’s

failure to disclose the existence of a plea agreement involving a key witness may

violate due process. Id. at 155. But M r. Arrington procedurally defaulted his due

process claim, and we granted a CO A only as to whether the new evidence

submitted in his pleadings establishes his “actual innocence.” Even if M r.

Arrington’s due process claim were obviously meritorious— which, we hasten to

add, it is not— he can only excuse his procedural default through “new reliable

evidence” of his innocence. Schlup, 513 U.S. at 324. Because the evidence

before us does not establish that M r. Hankenson lied about the existence or nature

of an agreement, and such evidence would not have made a difference anyway,




                                         -7-
M r. Arrington does not qualify for the “actual innocence” exception on those

grounds.

      B. Perjury as to “M atters of M aterial Fact”

      The only other piece of new evidence supporting M r. Arrington’s petition is

a second, longer excerpt from M r. Hankenson’s Rule 35(b) sentencing

reconsideration hearing in August 1996. At the hearing, M r. Rosenbaum admitted

that his client had repeatedly committed perjury at prior proceedings:

      HANKENSO N’S A TTORNEY: He had indicated to me[,] [J]udge,
      that he had perjured himself both in[ ]front of [J]udge Railey, as well
      as in front of— as well as that day during his testimony.
      I told him not to tell me anything more; that I wanted to find out
      what I needed to do, what he needed to in this regards.
      Judge Hall’s advice to me was that the sum and substance of the
      perjury did not need to be disclosed, did not need to be put on the
      record, and that in essence, he had gotten away with it.
      I went back and talked to M r. Hankenson and told him just that; that
      pursuant to my discussions with a senior judge who I asked for
      guidance, indicated that I did not need to come forward and that
      neither did M r. Hankenson, even though the trial was on going [sic].
      He also indicated— I also indicated to M r. Hankenson what perjury
      meant, the rami[fi]cations. Did a little research that day, [J]udge[,]
      as to how to purge yourself from perjury, and I’m sure the Court’s
      aware of the statute. However I did[n’]t believe that was going to be
      a complete defense because he also perjured himself in the other trial
      as well as in front of [J]udge Railey at sentencing, where I did go
      back and check and he w as a sworn w itness.
      So for all those purposes I told him quite frankly it would be best if
      he said nothing, ’cause that was the advice I had gotten and that was
      the advice I gave him. I also indicated that he was going to be
      reconsidered at some point and obviously this would have an impact
      on it.




                                     -8-
Response to Order to Show Cause 30 (emphasis removed) (M r. Arrington’s

comm ents removed). On a careful reading, the excerpt refers to perjury on as

many as four occasions: (1) “in[ ]front of [J]udge Railey,” (2) “in front of [J]udge

Railey at sentencing,” (3) “that day during his testimony” as part of “the trial

[that] was on going,” and (4) “in the other trial.” Id.

      None of these statements, however, refers to perjury at Mr. Arrington’s

trial, making it impossible for us to tell whether the evidence is relevant to the

question of actual innocence. The first two references are irrelevant because they

refer to proceedings before Judge M att Railey, who presided at M r. Hankenson’s

trial, not Judge D avid Parrish, who presided at M r. Arrington’s trial. The third

and fourth may be relevant, as they appear to describe two different trials: the “on

going” trial and “the other trial.” Yet by August 1996, M r. Hankenson had

already testified at a minimum of three trials— M r. Carroll’s first trial in M ay

1993, M r. Arrington’s retrial in November 1993, and M r. Carroll’s retrial in M ay

1995— and potentially more. 3 W ithout the complete transcript, or at least a few

additional pages to provide context, we are at a loss as to w hen M r. Hankenson’s

perjury took place.

      For two reasons, our best guess is that the excerpts do not describe perjury

at M r. Arrington’s trial. First, M r. Rosenbaum appears to be describing the day



      3
        The record does not disclose, for example, whether M r. Hankenson
testified at his own trial in 1992 or at M r. Arrington’s first trial in 1990.

                                          -9-
he learned of M r. Hankenson’s perjury for the first time, in the midst of an “on

going” trial. See Response to Order to Show Cause 30 (recounting that M r.

Rosenbaum “told him not to tell me anything more” and promptly sought advice

from a senior judge). Second, the excerpt makes clear that M r. Rosenbaum

advised his client that “it would be best if he said nothing” because “the sum and

substance of the perjury did not need to be disclosed.” Id. Neither of those

details match the Colorado courts’ description of M r. Arrington’s trial, at which

M r. H ankenson publicly acknowledged his past perjury. See Arrington, No.

00CA1854, at 8.

      Even assuming the excerpts refer to perjury at M r. Arrington’s trial,

however, it is impossible for us to evaluate any effect on M r. Arrington’s “actual

innocence” because we do not know what M r. Hankenson lied about. According

to M r. Arrington, these excerpts “show that not only did [M r. Hankenson] perjure

himself at [M r. Arrington’s] trial regarding his [eligibility for sentence

reconsideration], but he also perjured himself regarding matters of material fact.”

Response to Order to Show Cause 27. The excerpts before us simply do not

support that claim, and in his earlier pleadings M r. A rrington admitted as much.

See R. Doc. 3, App. Doc. 22, at 11 (“[N]either the prosecution nor M r. Hankenson

has ever disclosed the exact nature of what he continued to lie about while

testifying at M r. Arrington’s trial.”). For all we know, M r. Hankenson’s perjury

could have concerned the existence of a deal with prosecutors, other facts going

                                          -10-
to his credibility as a witness, or minor facts of no consequence for the jury. It is

M r. Arrington’s burden to provide “new reliable evidence” such that any

reasonable juror w ould have found him guilty beyond a reasonable doubt. Schlup,

513 U.S. at 324. The excerpts provided in M r. Arrington’s pleadings do not

satisfy that standard.

                                   III. Conclusion

       Because M r. Arrington has not provided evidence that satisfies the “actual

innocence” exception, his petition for a writ of habeas corpus was properly denied

on grounds of procedural default. W e therefore AFFIRM the judgment of the

district court.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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