                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 97-1068
                                  _____________

Robert Earl McCoy,                     *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Larry Norris, Director, Arkansas       *
Department of Correction,              *
                                       *
             Appellant.                *
                                 _____________

                                Submitted: September 10, 1997
                                    Filed: October 1, 1997
                                 _____________

Before FAGG, BOWMAN, and WOLLMAN, Circuit Judges.
                          _____________

BOWMAN, Circuit Judge.

      Larry Norris, Director of the Arkansas Department of Correction (the state1),
appeals from the judgment of the District Court granting Robert Earl McCoy's petition
for a writ of habeas corpus. We reverse.




      1
      We also will use "the state" when referring to A.L. Lockhart, Director of the
Arkansas Department of Correction before Norris. Lockhart was the defendant in
McCoy's previous habeas litigation.
        McCoy is serving a forty-year sentence of imprisonment that was imposed upon
him as a habitual offender following his November 1986 conviction for rape. In a
bench trial (McCoy waived his right to trial by jury), the victim testified that in the
early morning hours of April 5, 1986, she was sleeping with her seven-month-old son
on a mattress on the floor in the living room of her ground floor apartment when
McCoy somehow gained entry. She awoke to find him on top of her, telling her to do
as he wished to avoid harm to herself and her child. He then raped her. The victim's
husband testified that he unlocked the front door, entered the apartment, and found
McCoy raping his wife. The two men struggled and the victim called the police. Soon
after, police arrived and arrested McCoy. When officers searched McCoy they found
a screwdriver in the pocket of his trousers. The first officer on the scene testified:

      I found in the, the middle bedroom, the south side of the apartment, I
      found a window that had been pried open from the outside, and the
      window pushed up. . . . It appeared as though the, the bottom right hand
      corner of the screen had had some type of flat instrument inserted
      between the - - The rail, and the actual screen had been pried up.

 Trial Transcript at 27.

       McCoy's defense was consent. He claimed that he had driven into the apartment
complex parking lot because he believed he was too intoxicated to drive home. He
"was nodding a few minutes" in his car when he saw a woman "beckoning" him from
the doorway of the apartment building. Id. at 36, 37. This woman, whom McCoy did
not identify as the victim, then approached his car and got in on the passenger side.
McCoy testified that the woman consented to his coming to her apartment, gave him
a key, and then left the car. According to McCoy, he knocked on the door of the
victim's apartment, she let him in, and McCoy and the victim engaged in consensual sex
until her husband came home.



                                          -2-
       The judge found McCoy guilty and the Supreme Court of Arkansas affirmed the
conviction. See McCoy v. State, 732 S.W.2d 156 (Ark. 1987). McCoy's petition for
state post-conviction relief was denied. See McCoy v. State, No. CR 87-46, 1988 WL
8793 (Ark. 1988). He then filed a petition for federal habeas corpus relief pursuant to
28 U.S.C. § 2254 (1988). The District Court denied the petition without a hearing. On
appeal, we remanded for an evidentiary hearing, see McCoy v. Lockhart, 902 F.2d
1573 (8th Cir. 1990) (table), "on whether McCoy's counsel's decision not to introduce
evidence concerning an alleged key to the victim's apartment that McCoy claimed was
given to him by the victim constituted ineffective assistance of counsel." McCoy v.
Lockhart, 969 F.2d 649, 650 (8th Cir. 1992) (McCoy II) (reviewing history of McCoy's
habeas litigation).

       At the hearing on remand, in addition to raising the issue concerning the key,
McCoy presented testimony of the building superintendent at the victim's apartment
complex. The superintendent stated that the bedroom window in the victim's ground
level apartment, the presumed point of entry under the prosecution's theory of the case,
could not have been forced open without doing permanent damage to the window
screen, and that he found no such damage to the screen in the victim's apartment when
he inspected it. The District Court granted McCoy's petition for habeas relief, finding
that counsel was ineffective for failing to introduce evidence at trial concerning the key,
and also for failing to present the superintendent as a witness on the issue of window
entry. The state appealed. See id.

       On appeal, we noted that McCoy's claim of ineffective assistance as it related to
the window issue was procedurally defaulted, having not been raised in his state post-
conviction petition. We further held that McCoy was unable to demonstrate cause for
the default, the first step in the "cause and prejudice" test for overcoming procedural
default so that the merits of a habeas claim can be considered by the court. See Murray
v. Carrier, 477 U.S. 478, 485 (1986) (noting that petitioner "must show cause for the
procedural default and prejudice attributable thereto"). Therefore, the merits of

                                           -3-
McCoy's constitutional claims regarding the window entry evidence could be considered
only if McCoy were able to show a miscarriage of justice, that is, actual innocence. See
McCoy II, 969 F.2d at 651. The District Court had held that McCoy had done just that
under the standard set forth in Carrier. That is, the court held that McCoy had
demonstrated with the window entry evidence that "a constitutional violation has
probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S.
at 496. The court then concluded that McCoy received ineffective assistance of
counsel, relying not only on counsel's failure to call the apartment superintendent to
testify about the window screen but also on his failure to introduce the evidence
concerning the key, and granted the petition for the writ.

       Although we did not decide in McCoy II whether the court erred in reaching its
conclusion of probable actual innocence under the Carrier standard, we nevertheless
remanded with instructions for the District Court to reconsider its decision under the
standard set forth in the recently decided case of Sawyer v. Whitley, 505 U.S. 333
(1992). In Sawyer the Supreme Court held that actual innocence of the death penalty
must be shown "by clear and convincing evidence." Id. at 336. The McCoy II Court
"conclude[d] that the new standard applies equally to challenges to a conviction, not just
challenges to a death sentence." McCoy II, 969 F.2d at 651.2 This of course is a more
rigorous standard for a petitioner to meet than the "probably innocent" Carrier standard,
so this Court held that the District Court should revisit the claim of actual innocence.
We retained jurisdiction over the remanded case.

      "On remand, the Magistrate Judge applied the Sawyer standard and concluded
that McCoy's window-entry evidence does not clearly and convincingly demonstrate
that no reasonable factfinder could have found McCoy guilty of rape." McCoy v.
Lockhart, 980 F.2d 1162, 1163 (8th Cir. 1992) (footnote omitted), cert. denied, 509


      2
       As discussed infra, we were shown the error of our ways in so concluding by
the Supreme Court's opinion in Schlup v. Delo, 513 U.S. 298 (1995).

                                           -4-
U.S. 930 (1993). The judge certified his findings and conclusions to this Court, and we
agreed with his assessment of the case. See id. We also held that trial counsel's failure
to introduce evidence concerning the key did not constitute ineffective assistance of
counsel and that McCoy's habeas petition therefore should be denied. See id. at 1165.
McCoy's petition for certiorari was denied.

       McCoy now has filed another petition for a writ of habeas corpus, alleging
ineffective assistance of counsel, denial of due process, "[d]enial of fair trial and equal
protection of the law," and also alleging that "[c]hange of Constitutional Law by the
United States Supreme Court warrants a review of this 'extraordinary case.'" McCoy
faces the same obstacles with this successive habeas petition that he previously
encountered when his constitutional claim regarding the window evidence was held to
be abusive, and therefore defaulted, because he did not raise it in his state post-
conviction proceedings. See Schlup v. Delo, 513 U.S. 298, 318 (1995) ("[A] habeas
court may not ordinarily reach the merits of successive claims or abusive claims absent
a showing of cause and prejudice.") (citations omitted). McCoy still cannot overcome
the procedural bar by demonstrating cause and prejudice, and he does not contend that
he can.

      But with this petition, his claim of actual innocence, the gateway through which
he must pass to have his claims considered (as he cannot show cause and prejudice), is
no longer properly evaluated under the Sawyer "clear and convincing" standard. In
Schlup, the Supreme Court held "that the Carrier 'probably resulted' standard rather than
the more stringent Sawyer standard must govern" the actual innocence inquiry for claims
that constitutional error occurred during the guilt phase of a habeas petitioner's trial.3
Id. at 326.


      3
       Although Schlup was a guilt phase, death penalty case, we apply the Schlup
standard to guilt phase, non-capital cases as well. See, e.g, Weeks v. Bowersox, 119
F.3d 1342, 1350 (8th Cir. 1997) (en banc).

                                           -5-
       Applying the Schlup standard to this second habeas petition, the Magistrate Judge
to whom McCoy's case was assigned recommended that the petition be denied,
notwithstanding his recommendation years before under the Carrier standard that the
writ should issue. Applying Carrier as it was clarified by the Supreme Court's opinion
in Schlup, the court determined that a different result was now required. The District
Court, on de novo review, found that the Magistrate Judge's findings and conclusions
were anomalous, because of his previous--and contrary--decision under the Carrier
standard. See McCoy v. Norris, 958 F. Supp. 420 (E.D. Ark. 1996). The District Court
concluded that the Schlup Court's elucidation of the "probably resulted" standard, which
had been set forth but not elaborated upon in Carrier, should not change the result the
Magistrate Judge originally reached applying that standard. Therefore, the court
concluded, McCoy was entitled to pass through the actual innocence gateway. The
court then considered McCoy's ineffective assistance of counsel claim on the merits and,
finding a violation of his constitutional rights, granted McCoy's petition. The state
appeals.

      The first and possibly only question before us is whether McCoy can pass
through the actual innocence gateway so that his claims of constitutional violation can
be considered on the merits. If he cannot, we need not consider whether the court
properly decided McCoy's claim of ineffective assistance of counsel. "We review de
novo the district court's application of the Schlup standard to the facts of this case."
Beeman v. Iowa, 108 F.3d 181, 184 (8th Cir. 1997), petition for cert. filed, No. 96-9398
(U.S. June 3, 1997).

        There is a preliminary inquiry we must make before we can evaluate the strength
of McCoy's claim of actual innocence. "To be credible, such a claim [of actual
innocence] requires petitioner to support his allegations of constitutional error with new
reliable evidence . . . ." Schlup, 513 U.S. at 324 (emphasis added). The District Court
did not evaluate the "newness" of McCoy's evidence, but we think this is an important
initial step in the analysis of a habeas petitioner's claim of actual innocence. Unless

                                           -6-
McCoy has "evidence that was not presented at trial," we need not consider his
probable actual innocence. Andrews v. Norris, 108 F.3d 163, 164 (8th Cir. 1997). We
conclude that the "new" evidence McCoy offers is not new at all.

      The allegedly new evidence concerned whether McCoy entered the victim's
apartment through a bedroom window, and was presented at the December 1990
evidentiary hearing on McCoy's first habeas petition. At the time of the rape in April
1986, and at the time of the hearing, Luther Rollins was superintendent at the victim's
apartment complex and was responsible for most of the maintenance, including periodic
inspections of the property. He testified that he inspected the victim's apartment in
February 1986 and again a few days after the victim and her family gave notice that they
had moved out, which itself occurred a few days after the rape in April 1986. He noted
no damage to the windows at either inspection. He had a screen and a window at the
hearing, and he testified in response to questions from McCoy's habeas counsel as
follows:

      Q Now to gain entrance into these rear windows like the rear windows
      for Apartment 108 [the victim's apartment], can you pry open a screen or
      pry open a window with a screwdriver?

      A Well, if you tear - - had problems with a screen you'd tear it. There'd
      be holes in that one.

      Q You mean you'd have to tear the screen?

      A Yeah, to get it off of there and bend it all up, and it wouldn't be put
      back in there.

      Q Is there any way you can pry it open, like jimmy it open?

      A Not without scarring it or tearing it up. I see what you're saying. But,
      see, if that would have been bent, that's the same screen been there ever
      since it's been put up there on that storm window right there.

                                          -7-
      Q All right. This is the same screen and window that you examined in
      February of 1986?

      A Same one.

      Q And the same one that you examined in April of 1986?

      A Sure did.

      Q And to reiterate, did you see any damage to this particular window or
      screen?

      A Sure didn't.

Hearing Transcript at 47-48.

       Rollins had not been called to testify at McCoy's trial in 1986, four years earlier,
but that does not mean that his testimony at the hearing constituted new evidence.
Verdie Winstead, manager of the apartment complex in 1986 and still manager at the
time of the habeas hearing, was called as a witness at the trial by McCoy's trial counsel.
Winstead testified that Rollins had inspected the apartment after the victim's family
moved out and found no damage. On cross-examination by the prosecutor, Winstead
stated that Rollins checked the windows and screens for damage during his inspection
of the apartment, and then she had this exchange with the prosecutor:

      Q Okay. If someone had, for instance, pried open a window, or
      something, and there wasn't any damage done to the window itself, that
      wouldn't be reflected on that report then?

      A Yes. It is. There are screens there.

      Q Well, on - - If the screen itself hadn't been damaged, if they had just
      pried the window open, and there will be just some scratch marks, would
      that be reflected also?

                                           -8-
      A Not scratch marks. No.

      Q Okay. Where are the - -

      A (Interposing) But the screen would have to be reported.

      Q If the screen were damaged.

      A And you couldn't get to, and you couldn't get to the window without
      tearing the screen, because they are double glass. They are windows. The
      screen is on. And there is one set of glass. And then there's another set
      of glass.

      ...

      Q Okay. So if a policeman had said that he had found some evidence of
      some pry marks there, you would dispute that?

      A If he say he found some marks on the window without the screen being
      taken off, I would dispute that. Because he'd have to go through the
      screen in order to get to the window.

      Q But you yourself did not got [sic] out there and look at it, did you?

      A I didn't. But I have a man who's capable. Trustworthy.

Trial Transcript at 49-50.

       It is apparent that the evidence at issue--whether McCoy could have entered the
victim's apartment through the bedroom window without damaging the screen--was
before the court at trial. The fact that Rollins, a different witness, could have been
called to testify to the same thing, and that he could have brought the window to court
as an exhibit, does not convert Rollins's proffered testimony into new evidence that was
not presented at trial. It is more accurately described as cumulative evidence. Because


                                          -9-
the fundamental miscarriage of justice exception to procedural default is to be reserved
for the "extraordinary case," Schlup, 513 U.S. at 321, we are reluctant to broaden the
definition of new evidence to include new witnesses supplying essentially the same
evidence previously received at trial, especially in cases such as this one where the
original witness had no real credibility problems (in fact, the prosecution elicited her
testimony regarding damage to the screen) and the new witness's testimony is not
particularly compelling. We hold that Rollins's testimony is not new evidence.

        But even if Rollins's testimony were genuinely new evidence of McCoy's
innocence, McCoy would be unable to carry the burden of demonstrating "that it is more
likely than not that no reasonable juror would have convicted him in the light of the new
evidence." Schlup, 513 U.S. at 327. Because this case was tried to the court without
a jury, we have in the record comments made by the fact finder after he rendered his
verdict, and they provide some insight into whether a reasonable fact finder informed
by Rollins's testimony would have convicted McCoy. The judge said:

      What I heard from [the victim] was that she may have consented because
      she feared for her young son. She, or maybe somebody else, was at that
      front door. I don't know. Mr. McCoy may have observed those things.
      And he may have misinterpreted it. It may have been from [the victim],
      or somebody else. He ended up back there at that particular place. And,
      somehow or another, whether he came through a window, or he came in
      the front door. I just have to believe that this was a rape. . . . I choose to
      believe [the victim], and not Mr. McCoy.

Trial Transcript at 58 (emphasis added).

       Clearly, McCoy's mode of entry into the victim's apartment was of little or no
consequence to this eminently reasonable fact finder's conclusion that McCoy was
guilty. The judge acknowledged that the victim well may have let McCoy into her
apartment, but the judge further found that she did not consent to have sexual relations

                                           -10-
with McCoy--a total stranger--once he was admitted. The judge simply did not believe
McCoy. We conclude that the "new" window entry evidence would not have affected
his credibility determination, or his verdict.

        In sum, we hold that McCoy has not shown that he has reliable new evidence.
But even if the testimony of Rollins were new evidence, McCoy cannot demonstrate
that, "in light of the new evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. Thus, McCoy cannot
make his way through the actual innocence gateway, so we will not consider his
constitutional claims on the merits.4

       The judgment of the District Court is reversed and the case is remanded for entry
of judgment denying McCoy's petition for habeas relief.


      4
         The state argues that the District Court asserted jurisdiction over McCoy's
habeas petition in violation of the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 1996 U.S.C.A.A.N. (110 Stat.) 1214, which was
signed into law April 24, 1996, just days after McCoy's successive petition was filed.
The state contends that revisions made by the AEDPA to 28 U.S.C. §§ 2244 and 2254
required the court to summarily deny the petition. We do not decide the issue. As we
noted relevant to a habeas petitioner in a capital case in Bannister v. Delo, 100 F.3d
610, 612 n.2 (8th Cir. 1996), cert. denied, 117 S. Ct. 2526 (1997), "Because we hold
that [petitioner] is not entitled to relief under the prior more lenient habeas law, we do
not address the state's contention that the Act is applicable to this appeal and precludes
relief."

       We do note, however, that in Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997),
the Supreme Court held that the "negative implication "of the AEDPA "is that the new
provisions of chapter 153 generally apply only to cases filed after the Act became
effective." In other words, because Congress specifically addressed retroactive
application of new chapter 154 (limiting habeas review in state capital cases where the
state has met certain conditions), but did not address the retroactivity of the chapter 153
revisions (other habeas corpus provisions, including the amendments at issue here), the
chapter 153 provisions of the AEDPA ordinarily will not have retroactive application.

                                           -11-
A true copy.

      Attest:

          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




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