                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                            File Name: 04a0345p.06

                        UNITED STATES COURTS OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                                X
                                       Petitioner-Appellant, -
 PAUL GREGORY HOUSE,
                                                                 -
                                                                 -
                                                                 -
                                                                     No. 00-6136
             v.
                                                                 ,
                                                                  >
 RICKY BELL, Warden,                                             -
                                       Respondent-Appellee. -
                                                                N
                                Appeal from the United States District Court
                             for the Eastern District of Tennessee at Knoxville.
                              No. 96-00883—James H. Jarvis, District Judge.
                                          Argued: March 10, 2004
                                   Decided and Filed: October 6, 2004
   Before: BOGGS, Chief Circuit Judge; MERRITT, MARTIN, NORRIS, SILER, BATCHELDER,
  DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK,
                                        Circuit Judges.
                                            _________________
                                                 COUNSEL
ARGUED: Stephen M. Kissinger, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for
Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee. ON BRIEF: Stephen M. Kissinger, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee,
for Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
        NORRIS, J., delivered the opinion of the court, in which BOGGS, C. J., SILER, BATCHELDER,
GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. MERRITT, J. (pp. 17-44), delivered a separate
dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.
GILMAN, J. (pp. 45-46), also delivered a separate dissenting opinion.
                                            _________________
                                                OPINION
                                            _________________
       ALAN E. NORRIS, Circuit Judge. Petitioner Paul House appeals from the district court’s denial
of a writ of habeas corpus, 28 U.S.C. § 2254. A Tennessee jury found House guilty of the murder of a
neighbor, Carolyn Muncey, and sentenced him to death.
        This court granted a certificate of appealability as to all issues. However, House has limited his brief
to a discussion of only two claims: 1) Whether the manner in which the Tennessee courts applied the state

                                                       1
No. 00-6136             House v. Bell                                                                   Page 2


law doctrine of waiver during House’s post-conviction proceedings constitutes an adequate and independent
state procedural bar to his ineffective assistance of counsel claims; and 2) assuming that the Tennessee
courts properly deemed House’s claims to be waived, whether that waiver should be excused on the grounds
that House has established his actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). After the
Tennessee Supreme Court declined a request by an en banc panel of this court to answer certified questions
relating to issues of state law, House v. Bell, 311 F.3d 767 (6th Cir. 2002), this court is again faced with
the same claims.
        Having considered the arguments of the parties regarding the two claims that are before us, we
affirm the district court’s denial of the writ for the reasons set forth below.
                                                      I.
        This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual
findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). House initiated this habeas
action on September 30, 1996; the petition was amended on September 16, 1997. Consequently, this court’s
review of the state court’s decision is governed by the standards set forth in the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy,
521 U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
       Because factual determinations by state courts are entitled to a presumption of correctness, 28 U.S.C.
§ 2254(e)(1), we will describe the factual circumstances surrounding the murder for which House was
convicted by quoting from the Tennessee Supreme Court’s opinion denying him relief in his direct appeal:
               The victim of the homicide was Mrs. Carolyn Muncey, who lived with her husband
       and two young children on Ridgecrest Road in rural Union County, Tennessee. Mrs.
       Muncey was in her late twenties, and her children were about eight and ten years old at the
       time of her death on July 13, 1985.
                In March 1985 appellant Paul Gregory House was released from a prison in Utah and
       moved to the rural community in which the Muncey family lived. There he resided with his
       mother and step-father for several weeks, but in June he moved into a trailer occupied by his
       girl friend, Donna Turner, which was located about two miles from the Muncey home.
       Appellant did not own an automobile; but he was permitted to drive his mother’s car from
       time to time, and he also drove Ms. Turner’s car on some occasions.
               Other than doing occasional farm work for his stepfather, appellant does not appear
       to have been regularly employed. He did not testify at trial at either the guilt phase or the
       sentencing hearing. He was shown to have had one prior conviction for aggravated sexual
       assault, a charge to which he pled guilty on March 16, 1981 in Salt Lake County, Utah.
       Apparently he was placed on parole in that state, and supervision of his parole was
       transferred to Tennessee when he returned to this state. He was approximately twenty-three
       years old at the time of the homicide in this case.
               Mrs. Muncey disappeared from her home in the late evening of Saturday, July 13,
       1985. Her badly beaten body was found on the following afternoon at about 3 p.m., lying
       partially concealed in a brush pile about 100 yards from her home. Apparently the husband
       of the victim was not at home during the early part of the evening of July 13. Mrs. Muncey
       and her children visited a neighbor and left at about 9:30 p.m. to return to their home. Later
       the older child, Laura, awoke. She testified that she heard a voice which sounded like her
       grandfather making inquiry about her father. She also heard someone tell her mother that
       her father had been in a wreck near the creek. She heard her mother sobbing or crying as she
       left the house. When her mother did not return, the two children went to look for her at
       neighboring homes. Not finding her, they returned home and waited until their father
No. 00-6136           House v. Bell                                                                      Page 3


      arrived. Discovering that his wife was missing, he took the children back to the home of the
      neighbor where they had visited earlier in the evening and then called for members of his
      family to look for his wife.
              When the body of Mrs. Muncey was discovered the next afternoon, she was dressed
      in her nightgown, housecoat and underclothing. Her body was badly bruised, and there were
      abrasions and blood giving every evidence that she had been in a fierce struggle. Apparently
      a severe blow to her left forehead had caused her death. It appeared, however, that she had
      also been partially strangled. A pathologist testified that the blow to her left forehead caused
      a concussion and hemorrhage to the right side of the brain from which she died, probably
      one or two hours after being struck. He testified that she probably would have been
      unconscious after having been struck. He estimated the time of her death at between 9 p.m.
      to 11 p.m. on Saturday, July 13, but emphasized that this was at best a rough estimate.
              Appellant never confessed to any part in the homicide, and the testimony linking him
      to it was circumstantial. There was evidence showing that he knew Mr. and Mrs. Muncey
      and had been with them socially on a few occasions. Through defense proof there was
      testimony that Mrs. Muncey and her husband had been having marital difficulties and that
      she had been contemplating leaving him. There was no evidence to indicate that the
      appellant was aware of that situation, however, or that there had been any previous romantic
      or sexual relationship between him and the victim.
              On the afternoon of Sunday, July 14, 1985, two witnesses saw the appellant emerge
      from a creek bank at the side of Ridgecrest Road at the site where Mrs. Muncey’s body was
      later found concealed in the underbrush. He was wiping his hands with a dark cloth and was
      walking toward a white Plymouth automobile, parked on the opposite side of the road,
      belonging to his girl friend Donna Turner. The two witnesses spoke briefly to appellant, all
      of them discussing the fact that Mrs. Muncey had disappeared. Later the two witnesses
      became suspicious of what they had observed and returned to the point where they had seen
      appellant emerge from the embankment. Looking down the bank, they found the partially
      concealed body of Mrs. Muncey. They promptly notified the sheriff.
             Appellant later admitted that he had been in the area but denied that he had seen the
      body of Mrs. Muncey or had any knowledge of its presence. The dark rag which he had
      been using when first seen was never produced. It was the theory of the State, however, that
      this was a dark “tank top” or jersey which appellant was shown to have been wearing on the
      previous evening, July 13.
               Appellant gave two statements to investigating officers in which he denied being
      involved in the homicide. In both of these statements he stated that he had been at
      Ms. Turner’s trailer the entire evening of July 13 and that he had not left until the next
      afternoon when he went to look for Hubert Muncey after learning of the disappearance of
      the latter’s wife.
              On Sunday afternoon various witnesses observed that appellant had numerous
      scratches and bruises on his arms, hands and body, there being an especially significant
      bruise on the knuckle of his right ring finger. Appellant explained that these injuries had
      been sustained innocently earlier during the week, but when Ms. Turner was called as a
      witness, she said that she had not observed them prior to the evening of July 13. Appellant
      also told investigators that he was wearing the same clothes on Sunday, July 14 as he had
      been wearing the previous evening. It was later discovered, however, that a pair of blue
      jeans which he had been wearing on the night of the murder was concealed in the bottom of
      the clothes hamper at Ms. Turner’s trailer. These trousers were bloodstained, and scientific
No. 00-6136                 House v. Bell                                                                                Page 4


         evidence revealed that the stains were human blood having characteristics consistent with
         the blood of Mrs. Muncey and inconsistent with appellant’s own blood. Scientific tests also
         showed that fibers from these trousers were consistent with fibers found on the clothing of
         the victim. There were also found on her nightgown and underclothing some spots of semen
         stain from a male secretor of the same general type as appellant.
                 Some of the most damaging evidence against appellant was given by his girl friend,
         Ms. Turner. She at first told investigators that he had not left the trailer during the course
         of the evening of July 13. Later, however, she modified this testimony to state that he had
         been in the trailer until about 10:45 p.m. at which time he left to take a walk. When he
         returned an hour or so later, he was panting, hot and exhausted. He was no longer wearing
         either his blue jersey or his tennis shoes. The shoes were later found in an area different
         from the place where appellant told her he had lost them.
                 Appellant told Ms. Turner that he had thrown away the navy blue tank top because
         it had been torn when he was assaulted by some persons who tried to kill him. It was after
         the appellant’s return to the trailer that Ms. Turner first noticed the bruises and abrasions on
         his hands referred to previously.
                Appellant’s mother testified that he had not used her automobile on Saturday
         evening. She testified that during Saturday and Sunday she had been planning to separate
         from appellant’s stepfather and that appellant had been assisting her in her preparations for
         moving.
                  At the sentencing hearing the State proved appellant’s prior conviction for
         aggravated sexual assault. Appellant’s parents testified that he came from a broken home
         and had been subjected to stress as a result of that experience. Appellant’s mother also
         testified that in the interval between the guilt trial and the sentencing hearing appellant had
         attempted suicide. She read into evidence a letter which he had written to her denying his
         involvement in the homicide. Apparently he had cut his wrists while in the jail awaiting the
         sentencing hearing, but the degree and extent of the injuries were not detailed in evidence.
         They do not appear to have been serious and did not prevent his attending the sentencing
         hearing.
                 Although the evidence against appellant was circumstantial, it was quite strong.
         Particularly incriminating was the testimony that he had emerged from an embankment
         where the body was found, wiping his hands on a dark cloth, without disclosing to anyone
         the presence of the body. Damaging also were the discovery of his bloodstained trousers and
         the testimony of Ms. Turner, which a trier of fact could have found sufficient to demolish
         his alibi and to demonstrate that  he had been in a heavy struggle near the time when the
         homicide must have occurred.1 A classic case for determination by a jury was presented,
         and the evidence clearly is sufficient to support the conviction.
                 Following the sentencing hearing, the jury imposed the death penalty. In their
         verdict they found that the State had established three aggravating circumstances, these
         being: (1) appellant had previously been convicted of a felony involving the use or threat
         of violence to the person; (2) the homicide was especially heinous, atrocious, or cruel; and
         (3) it was committed while appellant was committing or attempting to commit or fleeing
         from the commission of rape or kidnaping. T.C.A. §§ 39-2-203(i)(2), (5), and (7).


    1
      After returning from his “walk,” appellant suggested marriage to Ms. Turner for the first time in their relationship. It was
at least arguable that he thought by this means her testimony could be rendered inadmissible by the husband-wife privilege.
No. 00-6136                 House v. Bell                                                                                  Page 5


                There was ample evidence to support all of these findings and to support the
         conclusion of the jury that no mitigating circumstances had been established which would
         outweigh the aggravating circumstances. Certainly the sentence of death was not
         disproportionate to that imposed in other cases in view of the violent and brutal nature of the
         homicide shown in this record.
State v. House, 743 S.W.2d 141, 142-44 (Tenn. 1987) (footnote in original).
        After his conviction and sentence were handed down in February 1986, House took a direct appeal
to the Tennessee Supreme Court. The Tennessee Supreme Court affirmed in the opinion just cited. House
failed to seek a writ of certiorari in a timely manner.
         Post-conviction proceedings began in February 1988 with the filing of a pro se petition for post-
conviction relief in the trial court. This petition, amended after appointment of counsel, was denied by the
trial court on November 29, 1988. Although claims of ineffective assistance of trial counsel were submitted
to the court, they were not argued, nor was trial counsel called as a witness at the hearing. Only a single
issue was taken to the Tennessee Court of Criminal Appeals: whether a jury instruction improperly misled
jurors into believing that they must unanimously find mitigating circumstances. The Court of Criminal
Appeals affirmed the conviction on December 15, 1989. The Tennessee Supreme Court denied leave to
appeal and the United States Supreme Court denied certiorari.
        A second petition for post-conviction relief was filed on December 14, 1990. After conducting
hearings, the trial court denied relief on the ground urged by the State: that all the issues presented had
either been previously determined in the first petition or, if not, had been waived.2
        The Court of Criminal Appeals affirmed the trial court’s decision on September 2, 1992. However,
the Tennessee Supreme Court remanded for reconsideration in light of one of its recent opinions, which it
later withdrew. The Court of Criminal Appeals remanded the matter to the trial court for further
consideration of the waiver issue. This remand was averted, however, when the Tennessee Supreme Court
re-instated the trial court’s initial denial of the second petition for post-conviction relief. House v. State,
911 S.W.2d 705 (Tenn. 1995). Critical for this habeas action is the Court’s holding concerning waiver:
         We conclude that a “full and fair hearing” sufficient to support a finding of previous
         determination occurs if a petitioner is given the opportunity to present proof and argument
         on the petition for post-conviction relief. We further conclude that the rebuttable
         presumption of waiver is not overcome by an allegation that the petitioner did not personally
         and therefore, “knowingly and understandingly,” waive a ground for relief. Instead, waiver
         is to be determined by an objective standard under which a petitioner is bound by the action
         or inaction of his attorney. Finally, we conclude that there is no right to effective assistance
         of counsel in post-conviction proceedings, and therefore, an allegation of ineffective
         assistance of prior post-conviction counsel does not preclude application of the defenses of
         waiver and previous determination.
Id. at 714. Because of its holding, the Tennessee Supreme Court re-instated the trial court’s original denial
of relief.

    2
      We note that throughout the proceedings in this case, the Tennessee courts have consistently used the term “waiver” to
include the inadvertent loss of a right or privilege. As indicated in opinions by the United States Supreme Court, the term
“waiver” ordinarily refers to a specific species of loss of right or privilege, namely, an intentional relinquishment or abandonment
of a known right or privilege. Inadvertent, unintentional losses are normally covered under the broader term “forfeiture.” See
United States v. Olano, 507 U.S. 725, 733 (1993) (citing Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 894 n.2 (1991)
(Scalia, J. concurring)). Although forfeiture is the customary term for the kind of loss of right or privilege ascribed to House in
the Tennessee courts, because we are describing state law, and the state courts claimed to be applying a “waiver” doctrine, we
have labeled House’s loss of right or privilege a “waiver” as well.
No. 00-6136             House v. Bell                                                                      Page 6


        House filed a pro se habeas petition on September 30, 1996, which was eventually amended after
the district court granted in forma pauperis status and appointed counsel. The district court granted the
State’s motion for summary judgment on the majority of claims in an order entered June 25, 1998. In
February 1999, it conducted an evidentiary hearing on House’s claim that the procedural default of his
ineffective assistance of counsel claims was excused because he could establish his actual innocence. After
considering post-hearing briefs of counsel, the district court denied habeas relief. It also denied a certificate
of appealability, a denial which was later superseded by this court’s grant of a certificate as to all issues.
        Although a certificate of appealability had been granted as to all issues, House has raised only two
issues in his briefs to this court: 1) whether the Tennessee state courts applied the state waiver rule in such
a way that it constituted an adequate and independent state ground that procedurally defaulted his ineffective
assistance of counsel claims; and 2) whether, if his ineffectiveness claims were procedurally defaulted, he
had made a sufficient showing of his actual innocence of the crime, permitting him to revive them. On
March 11, 2002, a three-judge panel of this court issued an opinion rejecting House’s claims and affirming
the district court’s denial of the writ. House v. Bell, 283 F.3d 737 (6th Cir. Mar. 11, 2002) (withdrawn).
That opinion was vacated when a majority of the active judges of the court voted to rehear the case en banc.
On November 22, 2002, following oral argument, the en banc court issued an opinion certifying questions
of state law to the Tennessee Supreme Court. House v. Bell, 311 F.3d 767 (6th Cir. 2002) (en banc), cert.
denied, 539 U.S. 937 (2003). The Tennessee Supreme Court declined to answer the questions. House v.
Bell, No. M2003-01952-SC-S23-CQ (Tenn. Nov. 24, 2003). Following the issuance of that order, we
requested additional briefing and argument from the parties prior to rendering this decision.
                                                       II.
        The first issue House has raised on appeal involves his contention that both the Tennessee courts and
the district court erred when they concluded that his claims of ineffective assistance of counsel were
procedurally barred.
        Initially, the district court deferred granting summary judgment to the State on the claims of
ineffective assistance of counsel because “these claims are intertwined with the petitioner’s claim of actual
innocence.” Memorandum Opinion, June 25, 1998, at 41. It went on to provide the following rationale:
        [T]he court will be unable to determine whether the claims should be barred on the ground
        of procedural default until the conclusion of the evidentiary hearing. Bousley v. United
        States, 523 U.S. 614, 118 S. Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (“Where a defendant
        has procedurally defaulted a claim by failing to raise it on direct review, the claim may be
        raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual
        ‘prejudice,’ or that he is ‘actually innocent.’”) Accordingly, in addition to petitioner’s claim
        of actual innocence, the court will consider [the ineffective assistance of counsel claims].
Id. at 41-42. However, after conducting an evidentiary hearing and determining that House had failed to
establish actual innocence, the district court held that House’s ineffective assistance of counsel claims were
“barred on the ground of procedural default.” Memorandum Opinion, February 16, 2000, at 46-47.
       House concedes that an adequate and independent state-law ground can procedurally bar subsequent
habeas claims. This circuit has developed a four-part analysis to determine whether a claim is barred:
                Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), this circuit utilizes the
        following four-part analysis when the state argues that a federal habeas claim has been
        procedurally defaulted in state court: (1) whether there is a procedural rule that is applicable
        to the petitioner’s claim and whether the petitioner failed to follow the rule; (2) whether the
        state courts actually enforced the state procedural rule; (3) whether the state procedural rule
        is an adequate and independent state ground to foreclose federal relief; and if so (4) whether
No. 00-6136             House v. Bell                                                                    Page 7


       the petitioner has established cause for his failure to follow the rule and prejudice by the
       alleged constitutional error.
White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000).
       House points to the tortured path that his case took in the courts of Tennessee and argues that no hard
and fast rule existed to procedurally bar his pro se ineffective assistance of counsel claims. Specifically,
he points to the following paragraph of the opinion of the Tennessee Supreme Court:
                Our research has revealed no reported Tennessee case dealing directly with the issue
       of the appropriate standard to apply when determining whether an issue has been waived.
       Courts in other states have split on whether to apply a subjective or objective standard and
       provide us little assistance because their decisions were based largely on the particular state
       statutory procedure. However, Tennessee cases dealing generally with the concept of waiver
       in the post-conviction context apply an objective standard and impute the conduct of counsel
       to their clients. See, e.g., Caruthers v. State, 814 S.W.2d 64, 70 (Tenn. Crim. App. 1991);
       State v. Bishop, 731 S.W.2d 552 (Tenn. Crim. App. 1986).
House, 911 S.W.2d at 713 (emphasis added) (footnotes omitted). In House’s view, this opinion illustrates
that no rule had been clearly established.
        We do not write on a clean slate with respect to this issue. See Cone v. Bell, 243 F.3d 961 (6th Cir.
2001), rev’d on other grounds, 535 U.S. 685 (2002); see also Coe v. Bell, 161 F.3d 320 (6th Cir. 1998). In
Cone, this court made clear that the House opinion that House relies upon merely explained existing state
law. The petitioner in that case contended that he had not personally waived a challenge to a jury
instruction. In rejecting his claim, we explained:
               First, we are aware of two cases in which courts have considered whether a petitioner
       is bound by his attorney’s waiver of a constitutional claim, Coe, 161 F.3d 320, and House
       v. State, 911 S.W.2d 705 (Tenn. 1995). The House court stated that “[w]aiver in the post-
       conviction context is to be determined by an objective standard under which a petitioner is
       bound by the action or inaction of his attorney.” House, 911 S.W.2d at 714. House does not
       appear to announce a new standard, as Cone suggests. Rather, it seems merely to affirm
       Tennessee’s standard of review.
               In Coe, as we explained earlier, this court held that the petitioner had procedurally
       defaulted his state claim that the trial court failed to give a correct malice instruction. He
       presented the claim for the first time in his second petition for post-conviction relief rather
       than his first petition, as a consequence of which the Tennessee Court of Criminal Appeals
       found it had been procedurally waived. Coe, 161 F.3d at 329-31. This court cited House
       when determining that Coe had defaulted his claim under an “objective” standard of waiver.
       However, the petition upon which the court relied in finding the default was filed before
       House was decided. Thus, concerning defaults that occurred before House was decided, the
       Tennessee courts have strictly and regularly applied the traditional standard of waiver,
       whether the waiver is made by counsel or the petitioner personally.
               ....
               Last, we are not persuaded that Cone is correct in his claim that Tennessee law was
       in a state of confusion on whether an “objective” or “subjective” standard of waiver is
       appropriate. It is not clear from the Tennessee cases that procedural default may not be
       charged to a petitioner who has not himself “knowingly and understandingly” waived timely
       assertion of a federal constitutional claim when his attorney has done so. We are satisfied
No. 00-6136            House v. Bell                                                                      Page 8


       that Tennessee follows the traditional rule that a petitioner is chargeable with his attorney’s
       failure to timely assert a claim and with the consequences of failing to do so.
Cone, 243 F.3d at 974. We find this reasoning dispositive of the issue before us and accordingly conclude
that the district court was correct when it determined that House’s ineffective assistance of counsel claims
had been procedurally defaulted.
                                                     III.
        We now turn to House’s other claim. House argues that even if his ineffective assistance of counsel
claims have been procedurally defaulted, he has established his actual innocence of the crime for which he
was convicted, a showing which, if made, revives his ineffectiveness claims. In Schlup v. Delo, 513 U.S.
298 (1995), the Supreme Court held that a petitioner must show either cause and prejudice or a miscarriage
of justice in order to obtain habeas review of an otherwise procedurally defaulted claim. House seeks to
invoke the miscarriage of justice exception here. With respect to a miscarriage of justice, a petitioner must
demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually
innocent of the crime.” Schlup, 513 U.S. at 324. The Court explained the nature of this exception as
follows:
               Claims of actual innocence pose less of a threat to scarce judicial resources and to
       principles of finality and comity than do claims that focus solely on the erroneous imposition
       of the death penalty. Though challenges to the propriety of imposing a sentence of death are
       routinely asserted in capital cases, experience has taught us that a substantial claim that
       constitutional error has caused the conviction of an innocent person is extremely rare. To
       be credible, such a claim requires petitioner to support his allegations of constitutional error
       with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
       eyewitness accounts, or critical physical evidence—that was not presented at trial. Because
       such evidence is obviously unavailable in the vast majority of cases, claims of actual
       innocence are rarely successful. Even under the pre-Sawyer regime, “in virtually every case,
       the allegation of actual innocence has been summarily rejected.” The threat to judicial
       resources, finality, and comity posed by claims of actual innocence is thus significantly less
       than that posed by claims relating only to sentencing.
               Of greater importance, the individual interest in avoiding injustice is most compelling
       in the context of actual innocence. The quintessential miscarriage of justice is the execution
       of a person who is entirely innocent.
Id., 513 U.S. at 324-25 (footnote and citation omitted). The Court cautioned that this exception is rare and
should be applied only in the extraordinary case, concluding that, “[t]o establish the requisite probability
[that a petitioner is actually innocent], the petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id., 513 U.S. at 327.
        Because the district court conducted an evidentiary hearing on this issue, there is testimony about
events beyond that which was presented during the original trial. House contends that this new evidence
is sufficient to establish his actual innocence. We will summarize that evidence and the district court’s
response to it before explaining why, in our view, House has failed to show that it is more likely than not
that no reasonable juror would have convicted him.
       House testified for the first time at the evidentiary hearing. He offered this version of the night of
murder: “I went for a walk. I got jumped, ran around, came back.” He went on to explain that the terrain
was hilly and that it was dark:
       I had only been walking about maybe 20 minutes at the most it seems like. A truck pulled
       up behind me with, I remember it as being like a 4-wheel drive. It sat up high, you know.
No. 00-6136                House v. Bell                                                                    Page 9


          Headlights were on. It had lights across the roof of the cab and they were on. I couldn’t see
          anything other than that about the truck. . . . I turned around and I kept walking. I believe
          there were at least two guys in the truck. I know the driver got out on his side, one guy got
          out on the passenger side. I couldn’t really discern it, but I think there was one other guy in
          the cab. The driver came up. I can remember he said something, but I don’t even know if
          I heard him correctly at the time. He grabbed me by the arm.
          He started to jerk me around. I turned around and threw him back with my left hand. I hit
          him. He let go. I started running. I ran kind of diagonally across the road into some trees,
          bushes, whatever it was. I heard a shot, at least one. There might have been two. I am not
          sure. I ran around through those woods for a while. I don’t know how long. When I came
          back out—I believe at one point I ran to the right, once I got into the woods, and started
          heading back. . . . I went back across the road up to Donna’s house. When I got, I stepped
          on something, a sharp rock or something. I knew I stepped on it. When I looked down I
          only had one shoe. I lost one of them while I was running. I took the other one off and
          threw it across the road.
                  ....
                  I didn’t even notice my shirt was gone until I got up to the trailer.
        As the factual summary of the Tennessee Supreme Court attests, this version of events is relatively
consistent with the one presented by Donna Turner during the trial. When asked why he initially lied to
investigators by telling them he had not left the trailer at all, House responded, “I was on parole. I didn’t
want to draw attention to myself.”
        In short, House’s testimony merely restates a scenario presented to the jury that had convicted him.
Moreover, the district court, which had the opportunity to assess House’s demeanor, found his testimony
to be less than credible.
       During the evidentiary hearing, House devoted considerable time to the trial testimony of Billy Ray
Hensley, the witness who saw House near the spot where the body was discovered. Specifically, House
introduced maps and photographs in order to show that Hensley could not have seen what he purported to
see from the place where he claimed to have been.
       At trial, Hensley testified that his wife received a telephone call at about 2 p.m. on July 14 that
Mrs. Muncey was missing. He drove to the Muncey trailer and talked to some of the family members. He
then “went to check on [his] tobacco.” After visiting his fields, he ended up on Bear Hollow Road, which
was near where the Munceys lived.
          He then had an encounter with House, which he described in these terms:
          [J]ust before I rounded the curve of Ridgecrest, whatever the name of that road is, I saw
          Mr. House come out from    under a bank, wiping his hands on a black rag. And I went on
          down to Little Hube’s3 driveway. I pulled up in the driveway where I could see up toward
          Little Hube’s house and I seen Little Hube’s car wasn’t there, and I backed back out in the
          road, and come back towards to the Dump Road, that is what I call it. And that is when
          Mr. House flagged me down. . . .
The two men had a short conversation about the fact that Mrs. Muncey was missing. House was driving
his girlfriend’s white Plymouth.

   3
       “Little Hube” was the nickname of the victim’s husband, Hubert Muncey.
No. 00-6136            House v. Bell                                                                Page 10


       After leaving, Hensley became suspicious and, along with his friend Jackie Adkins, returned to the
spot where he thought House had emerged: “I said—right along here is where I saw [House], and I got out
and was looking off the bank, and [Adkins] got out and walked around the car and he said—oh, my God.”
        On cross-examination, Hensley conceded that he could not have seen House while he was actually
“down in the embankment.” He would have first seen him at the top of the bank. Defense counsel also tried
to bring out some inconsistencies in Hensley’s statements concerning precisely when and where he first saw
House. On re-direct, the prosecution attempted to have Hensley clarify:
             Q. Let me ask you if this is a true statement—“I travelled about 500 feet on
       Ridgecrest Road when I saw a ‘66 or ‘67 white Plymouth sitting on the left-hand side of
       Ridgecrest Road,” is that true?
               A. That’s true.
               Q. Is that where you saw the car?
               A. Yes, sir.
             Q. Is this true? “I saw a man later identified to me as Paul G. House enter the
       roadway from the right-hand side of the road?”
               A. He was walking toward the road, yes.
              Q. All right. “And he was coming up over the bank and he had a rag in his hand and
       he was wiping his hands,” is that true?
               A. That’s true.
               ....
              Q. The estimation [of the distance on the road] that you have given, that you were
       pressed for, is that an accurate measurement or is that an estimate on your part?
               A. That is just an estimate.
The exhibits introduced by House during the evidentiary hearing were designed to show that Hensley could
not have seen House coming up the embankment. However, even if we accept House’s contention that
Hensley could not have seen him until he emerged onto the road, it is undisputed that House was seen in
the general vicinity of the body carrying a black rag. Moreover, trial counsel effectively cross-examined
Hensley regarding his inconsistent statements about when and where he saw House. Thus, in our view,
House’s attack on Hensley’s testimony advances his cause little, if at all.
       In addition to presenting his own version of events while attempting to cast doubt on the accuracy
of Hensley’s testimony, House takes aim at the physical evidence that linked him to the crime.
       Dr. Alex Carabia performed the autopsy of Mrs. Muncey’s body. He testified at the trial that death
was caused by a blow to the left side of her head. Mrs. Muncey died about an hour and a half after she was
hit.
         At trial, photographs of the bruises on House’s body were entered into evidence and three witnesses
testified about his physical condition. Prior to his arrest, House provided various accounts of their origin,
attributing them to a mysterious fight on the night of the murder and to tearing down a shed a few days
earlier. During closing argument, the prosecution emphasized these inconsistent statements.
No. 00-6136             House v. Bell                                                                   Page 11


       Also at trial, FBI Agent Paul Bigbee testified that the blood samples taken from the victim were
degraded. Nonetheless, the blood found on the jeans was consistent with that of the victim and not with that
of House.
        At the evidentiary hearing, House mounted a concerted challenge to this evidence.
        Four vials of blood were taken from the victim during the autopsy. These were placed in a
styrofoam container, which was sent from the Tennessee Bureau of Investigation (TBI) to the FBI. House
referred to two demonstrative exhibits in the district court: photographs of the styrofoam container viewed
from above and from the side. The container was sealed with tape by the TBI in both directions for
shipping. The photograph of the side view shows that one of the seals was broken and then resealed by a
second layer of tape. FBI Agent Bigbee placed his lab number on the second layer. The first layer of tape
is incomplete; it only covers the lid of the container. Agent Bigbee conceded that it was possible that the
first seal had been cut before the second seal had been placed over it. To support the theory that the
container was opened between the time it left the TBI and arrived at the FBI, House points to the fact that
the label on the container indicated that it held both blood and vaginal secretions. Yet, Agent Bigbee
received the secretions separately in a manila envelope.
        As mentioned above, four vials of blood were sent to the FBI. According to Agent Bigbee, he would
have used one fourth of a vial in testing. House’s trial serology expert, Howard Bragdon, took a photograph
when he received the styrofoam container from the FBI. In House’s view, the photograph shows that one
of the vials was only one-half full and another was nearly empty. Furthermore, despite Agent Bigbee’s
testimony to the contrary, it appeared that some of the blood had spilled, although there is no evidence
indicating that the spillage had occurred before the FBI received the blood.
        At the evidentiary hearing before the district court, Dr. Cleland Blake, Assistant Chief Medical
Examiner for the State, examined the results of the FBI tests of the blood found on the blue jeans and also
the blood taken from Mrs. Muncey’s body at the autopsy. He theorized, based upon the degree of the
enzymatic degradation, that the blood on the blue jeans came from known samples, such as the blood
contained in the vials, and not from Mrs. Muncey’s body. When confronted with this conclusion, Agent
Bigbee was doubtful, noting that the extent of enzymatic degradation could vary greatly from specimen to
specimen taken from the same source depending upon the manner in which the specimens were handled
after being extracted from the source, and upon other individual circumstances. To bolster Blake’s
conclusion, House asserted that the locations of the blood stains on the jeans were unlikely to have been
caused by a struggle between House and the victim. The five stains were found on the outside left leg, on
the inside left thigh, on the inside right pocket, outside the right pocket, and on the right cuff, respectively.
         An expert on blood spatter analysis, Paulette Sutton, also testified at the evidentiary hearing. She
testified, contradicting House’s assertion, that the pattern of some of the blood spots on House’s jeans was
consistent with transfer stains resulting from blood being wiped onto them, that some of the stain patterns
demarcated folds, and that the rest of the stains were consistent with spatter. She also noted, however, that
some of the blood stains on the jeans were mixed with mud, although the photographs of the crime scene
showed no mud present. Furthermore, National Weather Service records show that it had not rained for
three days prior to the murder. Finally, there was no mud on the victim’s nightgown.
        Finally, House notes that no blood was found on the tennis shoes that he was wearing on the night
of the murder. Charles Burks, House’s trial attorney, also testified at the evidentiary hearing. The district
court summarized his testimony on the issue of the tennis shoes as follows:
               During the evidentiary hearing, Mr. Burks reviewed a report from the Forensic
        Services Department of the TBI, which referred to Mr. House’s tennis shoes and indicated
        the absence of blood on the tennis shoes. Mr. Burks did not recall having seen that report
        before. That would have been relevant to Mr. Burks because, although there was blood on
No. 00-6136            House v. Bell                                                                Page 12


       Mr. House’s jeans near the cuff, there was no blood on the shoes he was wearing at the time
       of the offense. The shoes were found in the general area of Ms. Turner’s trailer long after
       the murder.
Memorandum Opinion, February 16, 2000 at 25.
       The court recounted the discovery of the blue jeans in these terms:
               TBI Agent Charles Scott testified that he became involved in the investigation of
       Mrs. Muncey’s murder, at the request of another agent, on the second day of the
       investigation. He took a statement from Mr. House and obtained consent to search from Ms.
       Turner. He went to Ms. Turner’s home and seized a pair of blue jeans from the clothes
       hamper in the bathroom. The jeans had “reddish brown” stains that he suspected was [sic]
       blood on the upper part of the jeans and near the cuff; there was also some light colored mud
       that was not completely dry.
              Mr. Scott did not thoroughly examine the jeans at that time but rather folded them
       and put them in a paper bag. Mr. Scott did not recall ever seeing the jeans in a plastic bag.
Memorandum Opinion, February 16, 2000, at 23.
       The court then summarized the testimony of House’s expert witnesses. Larry Johnson testified as
an expert in crime scene investigation and opined that “the packaging of materials in the case did not meet
professional standards” because items were not wrapped separately. DNA expert Lisa Calandro eliminated
House as the donor of the semen found on Mrs. Muncey’s underwear and nightgown.
        Howard Bragdon testified for House as well. Bragdon was the manager of laboratory operations for
DCI Laboratory in Nashville. This laboratory had performed the blood analysis for House at trial. Bragdon
noted that he took possession of the blue jeans, the victim’s clothes and fingernail scrapings, as well as
blood from both the victim and House, on October 29, 1985. The next day, after transporting them to
Nashville, he took pictures that showed dried blood around the upper left corner of the box in which the
items had been contained. According to the district court, “Mr. Bragdon admitted that it was his custom
to inspect the condition of serological evidence when he took possession and that there was no notation on
the receipt of spillage. Mr. Bragdon also admitted that he had no way of knowing the condition of the blood
samples at the time of the FBI’s serological testing.” Memorandum Opinion, February 16, 2000, at 35.
       The court characterized Dr. Blake’s testimony as follows:
       Dr. Blake testified that there was no total chain of custody. Also, according to Dr. Blake,
       Dr. Carabia [the coroner] failed to refrigerate and preserve the blood in the tubes, failed to
       seal the tubes of blood, which could result in spillage, and failed to package the items
       individually.
               Dr. Blake’s testimony was based upon his review of photographs of the physical
       evidence, and was relevant to Dr. Blake’s opinion that the blood on petitioner’s blue jeans
       resulted from spillage of Mrs. Muncey’s blood in the laboratory tubes . . .
               ....
              Dr. Blake testified that if fresh blood had spilled on the blue jeans while Mrs.
       Muncey was alive, and then dried, the enzymes on the jeans would not have deteriorated to
       the same extent as the enzymes in the blood taken from Mrs. Muncey. From this, Dr. Blake
       concluded the blood was not spilled on the jeans but rather came from the spillage of the test
       tubes.
No. 00-6136             House v. Bell                                                                 Page 13


               Dr. Blake also testified with respect to the age of Mr. House’s bruises, based upon
       photographs taken from the state court record. Dr. Blake estimated some bruises at one to
       two days old; others at five to six days old. Also, in Dr. Blake’s opinion, the bruising on
       Mr. House’s right ring finger was an injury from being mashed; it was not consistent with
       striking someone.
Memorandum Opinion, February 16, 2000, at 37-38.
        The district court also summarized the testimony of the blood spatter expert, Ms. Sutton, and noted
that her testimony contradicted the theory that blood had spilled from the vials onto the blue jeans “because
the blood and mud [with which it had mixed] would have had to have spilled at the same time.”
Memorandum Opinion, February 16, 2000, at 42.
       With respect to the blood, the court determined:
       Without question, one or more tubes of Mrs. Muncey’s blood spilled at some time. It is
       likely the spillage occurred prior to the receipt of the evidence by [the] laboratory hired by
       Mr. House’s trial attorney. Based upon the evidence introduced during the evidentiary
       hearing, however, the court concludes that the spillage occurred after the FBI crime
       laboratory received and tested the evidence.
              . . . [T]he enzyme deterioration, as well as Mr. Muncey’s alleged confession and the
       blood spillage, does not negate the fact that Agent Scott saw what appeared to be bloodstains
       on Mr. House’s blue jeans when the jeans were removed from the laundry hamper at
       Ms. Turner’s trailer and that the blood was in fact from Mrs. Muncey.
Memorandum Opinion, February 16, 2000, at 45-46.
        As indicated in the passage above, House not only presented evidence to the district court that
undermined the case against him, he also offered an alternative theory of the crime: that Mr. Muncey killed
his wife.
        At the evidentiary hearing, House produced witnesses who testified about Mr. Muncey’s alcoholism
and also his physical abuse of his wife. One acquaintance, Kathy Parker, testified that “[Mrs. Muncey] was
constantly with black eyes and busted mouth.” A friend, Hazel Miller, testified that Mr. Muncey told her
that he was going to get rid of his wife a few months before her death. In the district court, Mr. Muncey
acknowledged that he “smacked” his wife at least once.
        As for the day of the murder, Mr. Muncey was supposed to have helped to dig a grave. He had gone
over to his father’s place, helped to work on some cars, and then dug the grave. However, rather than go
home, he decided to attend the weekly dance at the C & C Recreation Center, where, according to his
testimony, he stayed until midnight. When he arrived home, he found his wife missing.
         Kathy Parker told the district court that Mr. Muncey visited her on a Friday in 1985 after the murder.
Friends were sitting around drinking when Mr. Muncey “started crying and going on and rambling off.”
According to Parker, he was “[t]alking about what happened to his wife and how it happened and he didn’t
mean to do it, but I don’t know exactly what all was said.” She went on, “[H]e said they had been into an
argument and he slapped her and she fell and hit her head and it killed her and he didn’t mean for it to
happen.” According to Parker, Mr. Muncey was drunk when he made this confession. After hearing it,
Parker claimed, “I freaked out and run him off.” The next day Parker’s mother took her to the courthouse
to tell someone about the confession. However, she “never did really get to talk to anybody.” When the
district court asked her about the motivation behind her testimony in the evidentiary hearing, she replied,
“An innocent man is in jail.”
No. 00-6136                 House v. Bell                                                               Page 14


        On cross-examination, Parker testified that she had tried to come forward but no one seemed
interested. She had had seven or eight beers on the night of the confession.
         Parker’s sister, Penny Letner, also testified to having heard such a confession from Little Hube.
Once again, she recalled that he was “pretty well blistered.” According to Letner, Mr. Muncey confessed
to killing his wife when he returned home:
          He said he didn’t mean to do it. That she was “bitching him out” because he didn’t take her
          fishing that night, that he went to the dance instead. He said when he come home that she
          was still on him pretty heavily “bitching him out” again and that he smacked her and that she
          fell and hit her head. He said I didn’t mean to do it, but I had to get rid of her, because I
          didn’t want to be charged with murder.
Letner had not been drinking. She was frightened by the talk and left the party. As a young mother of 19,
she testified that she had been too scared to report the confession.
          Based upon the statements of Letner and Parker, House posits the following scenario:
                 When Mr. Muncey got home, he and his wife resumed their fight. He hit her at least
          once and she fell. When he checked, he found that he had killed her. He took her body
          down by a creek running near their home and hid it with some brush and branches.
                  Whether Mr. Muncey ever went back to the dance is uncertain. Constable Wallace,
          who was providing security at the dance, testified that he never saw Mr. Muncey return after
          he left around 10:30 p.m. Mr. Muncey claimed during the hearing that he never left the
          dance until it broke up some two or more hours later.
Petitioner’s Brief at 33-34. House also points out that Dennis Wallace4 did not think that Mr. Muncey
seemed upset when he reported his wife’s disappearance or when the body was recovered. Also, the
morning after the murder, Mr. Muncey asked a neighbor, Artie Lawson, to tell people that he was at the
dance. Since she had not attended it herself, Ms. Lawson declined. Her daughter, Mary Atkins, testified
that she not only saw Little Hube at the dance, but that she saw him hit his wife.
        The district court discounted the testimony of Letner and Parker, finding their testimony lacking in
credibility:
          The court is not impressed with the allegations of individuals who wait over ten years to
          come forward with their evidence. This is especially true when there was no physical
          evidence in the Munceys’ kitchen to corroborate his alleged confession that he killed her
          there.
Memorandum Opinion, February 16, 2000, at 45. Instead, the court credited the testimony of Laura Muncey
Tharp, the victim’s daughter, who testified at both the trial and evidentiary hearing:
          While in bed, she heard a deep voice saying her dad had been involved in a wreck next to
          the creek. Sometime later she and her brother got up and went looking for their mother.
          They went to the neighbors and looked up and down the driveway. She did not see anything
          out of the ordinary in the house; nothing was out of place and there was no sign of a struggle.
                  According to Ms. Tharp, her parents got along fine. They argued, but she did not
          recall any physical pushing or hitting. If they argued, she could hear them if she was in her


   4
       Dennis Wallace was the Chief of Police of Luttrell, the nearest town.
No. 00-6136             House v. Bell                                                                Page 15


       bedroom. The family did not have air conditioning in the home. She did not hear any
       arguments that night.
              The court found Ms. Tharp a very credible witness. She had no reason to lie. Her
       testimony during the evidentiary hearing was consistent with her trial testimony.
Memorandum Opinion, February 16, 2000, at 12-13.
       As the preceding recitation makes clear, House has mounted a concerted attack on his conviction.
Indeed, it is fair to say that he has presented a colorable claim of actual innocense. However, as the
Supreme Court has made clear, that is not the standard that we are bound to apply. To prevail, House must
do more than raise questions about the reliability of portions of trial testimony or the manner in which
physical evidence was handled or analyzed; he must show “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. Moreover, in
weighing the new evidence we review the factual findings of the district court for clear error. Campbell v.
Coyle, 260 F.3d 531, 539 (6th Cir. 2001).
        The following facts that implicate House are undisputed: he lied to investigators about his
whereabouts on the night of the murder; he gave inconsistent versions of the origins of the scratches and
bruises on his hands and arms; he was seen near where the body was discovered on the day after the murder;
he lied about what he was wearing on the night of the murder; blue jeans belonging to House, spattered with
blood mixed with mud, were found at the bottom of Ms. Turner’s laundry hamper; House has a deep voice
and Laura Muncey testified that the man who came to the trailer on the night of the murder had a deep
voice; and, according to Ms. Sutton, the blood and mud found together on House’s blue jeans had been
mixed together, which “certainly eliminates the possibility of any stains being created by contamination in
an evidence container.” We note that the fact that mud may not have been present at the crime scene, and
may have been scarce in the surrounding area, cannot be taken as proof that there was no mud anywhere
on the route between Ms. Turner’s trailer and the scene of the crime.
        With respect to House’s theory that Mr. Muncey committed the murder, we defer to the finding of
the district court that Ms. Letner and Ms. Parker, who allegedly heard Mr. Muncey’s confession, were not
credible. Furthermore, the content of Ms. Letner’s testimony, indicating that Mr. Muncey killed his wife
upon returning to the trailer, is belied by the presence of the children in the trailer, who heard no such
confrontation, and the lack of any signs of a struggle. House’s theory that a deep laceration cutting across
Mrs. Muncey’s head was caused when she fell and hit her head is inconsistent with the testimony of Dr.
Carabia, who indicated that the laceration could only have resulted from a violent blow. The fact that Mr.
Muncey may have asked his neighbor to say that she saw him at the dance during the time of the murder
is insufficient to tip the balance in favor of House’s theory.
         Regarding House’s attacks on the scientific evidence that incriminated him, he has succeeded in
showing that the semen attributed to him during the trial was that of Mr. Muncey and that, at some point,
the blood evidence appears to have been mishandled, resulting in spillage. However, the fact that the semen
found on the victim’s clothing came from her husband and not from House does not contradict the evidence
that tends to demonstrate that he killed her after journeying to her home and luring her from her trailer, nor
does the lack of any physical evidence of sexual contact contradict the notion that the murderer lured Mrs.
Muncey from her home with a sexual motive. As for the mishandling of the blood evidence, the theory that
the blood on House’s jeans came from the vials of blood gathered at Mrs. Muncey’s autopsy is based upon
a speculative theory regarding enzyme degradation that was contradicted by other testimony in the record,
and an analysis of the blood stain pattern does not demonstrate that the stains could not have resulted from
Mrs. Muncey’s murder. The lack of any blood spatter on House’s shoes is inconclusive as well, because
it is not clear when House took his shoes off. Finally, the district court’s conclusion that “the spillage
occurred after the FBI crime laboratory received and tested the evidence” cannot be characterized as clearly
No. 00-6136            House v. Bell                                                              Page 16


erroneous. The only unchallenged blood evidence, the testimony indicating that the blood and mud on the
jeans were mixed, tends to support the conclusion that House committed the murder.
        Despite his best efforts, the case against House remains strong. We therefore conclude that he has
fallen short of showing, as he must, that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.
                                                   IV.
       All of the issues before us having been decided, the judgment of the district court is affirmed.
No. 00-6136             House v. Bell                                                                 Page 17


                                            _________________
                                                DISSENT
                                            _________________
          MERRITT, Circuit Judge, dissenting. I regard this as the rare or extraordinary case in which the
petitioner through newly discovered evidence has established his actual innocence of both the death
sentence and underlying homicide. The Court’s opinion, like the Attorney General’s argument for the State,
regards as “undisputed” old evidence and inferences that are now contradicted by other evidence in the case.
It fails to describe adequately the persuasive case of actual innocence that the petitioner’s newly discovered
evidence raises. Nor does it adequately describe the legal standards to be applied.
        This dissent will first describe the constitutional standards applicable in “actual innocence” cases
such as this one. There are four actual innocence theories applicable in this case based on the body of newly
discovered evidence presented at the federal habeas hearing: (1) a “free-standing,” substantive, so-called
“Herrera” actual innocence claim, (2) a procedural, or “gateway,” so-called “Schlup” actual innocence
claim, (3) the more limited “gateway” claim that the petitioner is “actually innocent of the death penalty”
because the new body of evidence shows that petitioner is not now eligible for the death penalty because
the rape aggravator has been disproved, and (4) a free-standing, substantive “actual innocent of the death
penalty” claim. It will then outline the evidence in detail and apply the standards in four parts, as follows:

        First, at the state trial in Maynardville, Union County, Tennessee, in 1986, and in its argument to
uphold the death verdict in the Tennessee Supreme Court, the State relied on rape as the motive for the
kidnapping and the murder of Carolyn Muncey. There was no other motive offered. It relied on a semen
specimen on her nightgown as proof that House tried to rape her. Newly discovered DNA evidence now
conclusively establishes that the semen was her husband’s. There is now absolutely no evidence of sexual
assault. The new evidence disproves the motive the jury accepted as the basis for the kidnapping and
murder and the aggravating circumstances the jury found as its basis for the death penalty.
        Second, besides the semen evidence, the State introduced at the trial one other piece of highly
incriminating scientific evidence: evidence of Carolyn Muncey’s blood on House’s blue jeans worn on the
night of the murder. At the 1999 federal habeas hearing, the State’s case was undermined by the State’s
own medical examiner, Dr. Cleland Blake. As “Consultant in Forensic Pathology” for the Tennessee
Bureau of Investigation for 22 years, Dr. Blake has testified for the prosecution in the past in hundreds of
cases. Four vials of blood were extracted at the time Carolyn Muncey was autopsied. Dr. Blake, the State’s
medical examiner, testified at length that he had no doubt that the blood on House’s pants was spilled from
one of these four vials of blood shipped to the lab by local law enforcement agents — spilled either
accidentally or intentionally. There is no explanation besides spillage for the fact that one of the four vials
of blood was empty. The new body of evidence shows conclusively that the vials of blood were not
properly handled and shipped by law enforcement and that the blood that spilled from the vials cannot
otherwise be accounted for.
        Third, testimony from five new witnesses offered at the habeas hearing implicates Mr. Muncey in
his wife’s murder. The new evidence discloses that Mr. Muncey, with a flood of tears, confessed to two
women friends after the murder that he had killed his wife. He told a third woman that he was going to “get
rid” of Carolyn a few weeks before the murder. He asked a fourth woman to provide him with an alibi on
the night of the murder and gave testimony about his whereabouts that night at the time of the murder that
has now been contradicted by a local law enforcement officer. The State offered no evidence that any of
these witnesses was biased in favor of House or prejudiced against Mr. Muncey.
        Fourth, the evidence completely undermines the reliability of the testimony of Billy Ray Hensley,
the witness who said that on Sunday afternoon before the victim’s body was found, he saw House coming
up the embankment on Ridgecrest Road where the body was later found that day. Based on his own
No. 00-6136             House v. Bell                                                                   Page 18


testimony and an examination of the record, it would have been impossible for Hensley to see House as he
claimed.
        Union County, Tennessee, is a small rural county in the hill country of East Tennessee. It has a
population of 12,000. Maynardville, population 1,000, is the county seat where Carolyn Muncey’s murder
was investigated and tried. Local law enforcement officials from the Sheriff’s office testified that
immediately after the murder they had two suspects, House and the victim’s husband, Hubert Muncey,
called “Little Hube.” Mr. Muncey grew up and was well-known in the local community. Although “Little
Hube” had a history of severe domestic abuse, the local police chose House as the murder suspect when he
told them two days after the body was found that he had just recently moved into the local Luttrell
community and that he had a sexual assault conviction in Utah and after they had developed other
incriminating evidence.
         In its opinion in 1987, affirming House’s conviction, the Supreme Court of Tennessee noted the
semen evidence and rape as the motive for the homicide. It noted that House had “never confessed to any
part in the homicide, and the testimony linking him to it was circumstantial.” The Court also observed that
the Munceys “had been having marital difficulties and that she had been contemplating leaving him.” State
v. House, 743 S.W.2d 141, 143 (Tenn. 1987). The case comes down to the question of whether the newly
discovered evidence undermining the case against House and incriminating Mr. Muncey is sufficiently
strong — despite the uncertainties that remain — to preclude a rational juror from finding guilt beyond a
reasonable doubt and to make the execution of House “constitutionally intolerable.”
                                I. Standards for Actual Innocence Claims
        Schlup v. Delo, 513 U.S. 298 (1995), is the only Supreme Court case that has discussed and
compared the standards to be applied in three of the four different types of actual innocence claims that may
be asserted in habeas: (1) “free standing,” (2) “gateway” and (3) “innocent of the death penalty” gateway
claims. There, in an opinion for six members of the Court, Justice Stevens wrote that it is “firmly
established in our legal system, that the line between innocence and guilt is drawn with reference to a
reasonable doubt,” and that “the analysis [of actual innocence claims] must incorporate the understanding
that proof beyond a reasonable doubt marks the boundary between guilt and innocence.” Id. at 328. This
starting point is a major factor for all types of actual innocence claims. For such claims, this factual analysis
is always a “probabilistic determination” about the behavior of a reasonably instructed juror. Id. at 329.
        1. Gateway, Actual Innocence Claims. — In Schlup, 513 U.S. at 316, the Court stated that for
substantive, free-standing claims where the “conviction was the product of a fair trial,” the “evidence of
innocence would have had to be strong enough to make an execution ‘constitutionally intolerable.’” Yet,
when a claim of innocence is coupled with an assertion of constitutional error at trial, the “conviction may
not be entitled to the same degree of respect.” Id. Thus, the “evidence of innocence need carry less of a
burden.” Id. In Schlup, as in House’s gateway claim in the instant case, the claim of constitutional error
at the original trial was ineffective assistance of counsel; and the actual innocence claim was used as a
“gateway” to overcome procedural default in order to reinstate the ineffective assistance claim and render
it again cognizable. For such gateway or procedural claims, the Schlup opinion holds that a petitioner must
demonstrate that “it is more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Id. at 327.
        2. Gateway Innocent of the Death Penalty Claims. — The Court in Schlup discussed and left intact
the standard for claims of “innocent of the death penalty” (claims that the evidence of aggravating
circumstances at the sentencing phase of the case is insufficient to render the defendant eligible for the death
penalty) — a standard announced in the previous case of Sawyer v. Whitley, 505 U.S. 333 (1992). In such
“innocent of the death penalty” claims governed by Sawyer, the question is always whether the petitioner’s
proof of innocence is sufficient to overcome a procedural default and render a defaulted constitutional claim
again cognizable. Quoting Sawyer, the Court said that claims of actual innocence of the death penalty at
No. 00-6136                 House v. Bell                                                                                Page 19


the sentencing phase “must focus on those elements which render the defendant guilty of the death penalty”
and show “by clear and convincing evidence” that “no reasonable juror would have found the petitioner
eligible for the death penalty” beyond a reasonable doubt. Schlup, 513 U.S. at 323. This is the standard
applicable to the question of innocence of the rape-homicide aggravator found by the jury at House’s trial.
If found, it would make House’s ineffective assistance of counsel claim at the penalty phase of the case
cognizable.
       3. Free-standing Actual Innocence Claims. — In Herrera v. Collins, 506 U.S. 390 (1993), the
Supreme Court did not spell out a standard for free-standing substantive claims of actual innocence in cases
which presuppose a fair trial. Instead, it merely noted that the required “threshold showing” would be
“extraordinarily high.” 506 U.S. at 417. In a concurring opinion, Justice White sets out a very demanding
standard:
         I assume that a persuasive showing of “actual innocence” made after trial, even though made
         after the expiration of the time provided by the law for the presentation of newly discovered
         evidence would render unconstitutional the execution of petitioner in this case. To be
         entitled to relief, however, petitioner would at the very least be required to show that based
         on proffered newly discovered evidence and the entire record before the jury that convicted
         him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.”
Id. at 429  (White, J., concurring) (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)) (emphasis
added).1 As laid out below, the White standard is appropriate to apply in free-standing actual innocence
claims. Justice White’s proposed standard borrows language from Jackson, in which the Court established
the test governing habeas review of claims of insufficient evidence. In Jackson, the Court found that due
process guaranteed by the Fourteenth Amendment requires “that no person shall be made to suffer the onus
of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier
of fact beyond a reasonable doubt of the existence of the element of the offense,” 443 U.S. at 316. When
petitioners make Jackson claims, they assert that the trial leading to their conviction was flawed in that the
evidence of guilt presented in the trial record was insufficient to support the verdict.
         With free-standing actual innocence claims, petitioners are not claiming that their trial violated
constitutional due process requirements due to insufficient evidence. Instead Herrera claims are to provide
relief to one who faces the death penalty and can make a truly persuasive case of innocence. In order to
prevent what the Supreme Court describes as “constitutionally intolerable,” Schlup, 513 U.S. at 316, courts
must consider newly discovered evidence in addition to the trial record. The proof established at the
original trial must be examined in light of what is newly proffered to determine if all the available evidence
would support conviction. The White standard is appropriate for use in free-standing actual innocence cases
as it is a very high standard that will only be met in exceptional cases where new evidence has
unquestionably undermined the case against the petitioner. It also forces courts to make an objective
determination regarding what a fact finder could find rather than what a hypothetical juror would find.
        Utilizing Justice White’s standard would permit courts to adequately address the rare case of actual
innocence without becoming bogged down by non-meritorious claims. Justice O’Connor in Herrera noted
the Court’s concern that if the standard for free-standing actual innocence cases is set too low, “federal
courts will be deluged with frivolous claims of actual innocence.” 506 U.S. at 426 (O’Connor, J.,
concurring). The White standard borrowed from Jackson addresses this concern as new evidence would
have to so undermine the case against the petitioner as to make the conviction untenable and the imposition

    1
      Justice Blackmun for himself and Justices Stevens and Souter also defined a standard for free-standing actual innocence
cases stating that “a prisoner must show not just that there was probably a reasonable doubt about his guilt but that he is probably
actually innocent.” 506 U.S. at 434-35 (Blackmun, J., dissenting). The White standard does not appear to be at odds with the
formulation suggested by Justice Blackmun. Petitioners who could meet the White “no rational juror” test would also meet the
Blackmun “probably innocent” standard.
No. 00-6136             House v. Bell                                                                    Page 20


of the death penalty constitutionally intolerable. The Court has noted that the Jackson standard is an
incredibly high hurdle for a petitioner to jump. See Schlup, 513 U.S. at 323 n.38 (“Even the high standard
of proof set forth in Sawyer falls short of the Jackson standard governing habeas review of claims of
insufficiency of evidence.”). Under the proposed standard, “the mere existence of sufficient evidence to
convict would be determinative of a petitioner’s claim.” Id. at 330.
        The inquiry as to whether any rational juror could convict also seeks to make the determination of
actual innocence more objective. As the Supreme Court wrote, describing the standard, “the use of the word
‘could’ focuses the inquiry on the power of the trier of fact to reach its conclusion,” whereas “the use of the
word ‘would’ focuses the inquiry on the likely behavior of the trier of fact.” Id. Whether a rational fact
finder would have the ability to convict the petitioner in light of all available, reliable, and relevant evidence
“requires a binary response.” Id. Either the evidence is sufficient to support the conviction or it is not. The
analysis thus interferes with the original trial determination only to the extent necessary to ensure that a
prisoner is not executed when the available evidence cannot support his conviction. This Court should
adopt Justice White’s standard from Herrera, and the writ should issue if in light of newly discovered
evidence, no rational trier of fact could find proof of guilt beyond a reasonable doubt.
        4. Free-standing Innocent of the Death Penalty Claims. — Although not discussed in Schlup or other
cases, for cases raising a substantive, non-gateway claim that the condemned prisoner is not eligible for the
death penalty at sentencing, the standard should be the same as the White standard. The petitioner must
demonstrate no rational fact finder examining the trial record and the new evidence could impose the death
penalty. If he can disprove the aggravator for which he was sentenced to death, it is plainly unconstitutional
for the sentence to stand.
        In my view, as I will now explain, the petitioner has carried his burden of proof on all four theories.
He has clearly shown both that a reasonable juror would have a substantive and serious doubt as to his guilt
and that the cumulative evidence is insufficient to enable a rational juror to convict House or sentence him
to death for the murder of Carolyn Muncey.
                           II. Rape as House’s Motive — the Semen Evidence
       In its opinion, the Tennessee Supreme Court in its factual statement recounted evidence of rape as
the motive for the kidnapping and murder noting that “there were found on her nightgown and underclothing
some spots of semen stain from a male secretor of the same general type as appellant,” State v. House, 743
S.W.2d 141, 143 (Tenn. 1987), and referring to inferences available to the jury from the fact that “the state
proved appellant’s prior conviction for aggravated sexual assault.” Id. at 144.
        In light of the evidence introduced at the federal habeas hearing, the State now concedes that the
semen specimen found on the nightgown Carolyn was wearing when murdered was “Little Hube’s,” not
House’s; and there is no other evidence of rape or sexual assault. The State’s concession is based upon
DNA analysis introduced at the habeas proceeding by counsel for House. But the State now seems to deny
that the semen evidence was introduced at the state trial in 1986 to show that House attempted to rape
Carolyn or that rape was the motive offered to the jury for this kidnapping and murder and the basis of the
jury’s verdict. This argument is simply not consistent with the facts, and the majority opinion does not
acknowledge or deal with this problem. The State has no other explanation or evidentiary basis for
introducing the semen evidence at the trial other than to show attempted rape as the motive. Because the
Court’s opinion does not deal with the problem and the State now denies what it strongly claimed when it
tried the case and obtained the death verdict, we will itemize in some detail the evidence that contradicts
the State’s present argument that the prosecution did not rely on rape as the motive for the murder and for
the death penalty aggravator.
       From the beginning in July 1985, the police and prosecutors viewed this as a rape murder case and
so advised the FBI lab and then the jury. In the various lab reports from the FBI to the local prosecutors,
No. 00-6136                 House v. Bell                                                                                Page 21


the correspondence is always designated as “rape-homicide.” The first lab report described the crime as
“rape-homicide” two weeks after the murder:
                                                            REPORT
                                                              of the

                                                              FBI
                                                           Laboratory



                                   FEDERAL BUREAU OF INVESTIGATION
                                             WASHINGTON, D.C. 20535
                                                                                             July 29, 1985


         To:      Mr. Williams Paul Phillips                                                 FEDERAL EXPRESS
                  District Attorney General
                  Post Office Box 10
                  Huntsville, Tennessee 37756                             FBI File No.
                                                                          LAB NO.            50717040 S XI VB VJ
                                                                                             50722020 S XI VB
                                                                          YOUR NO.

         Re:      PAUL GREGORY HOUSE - SUSPECT;
                  CAROLYN MUNCEY - VICTIM;
                  RAPE - HOMICIDE
         Examination requested by:            Addressee and Sheriff of Union County,
                                              Maynardville, Tennessee
         Reference:                           Letter from District Attorney General dated
                                              July 16, 1985, and letter from Sheriff of Union
                                              County dated July 19, 1985
         Examination requested:               Chemical Analyses - Microscopic Analyses -
                                              Mineralogy
FBI File, Criminal Trial Exhibits, Addendum No. 2, Exhs. 31 & 32, admitted into evidence, Addendum
No. 4, p. 903.2
        Four such lab reports designating House as the “suspect” and “rape-homicide” as the nature of the
case were shown to the jury at House’s trial on February 6, 1986, after being admitted into evidence as
State’s exhibit 32. The jury read a letter from Union County District Attorney William Paul Phillips dated
July 16, 1985, to the FBI lab in Washington stating that this was a “sexually motivated attack.” Id. at p. 6.
Then the jury saw four FBI lab reports like the one above referring to House as the “suspect,” “Carolyn


    2
     Citations to the state trial record will reference the multi-volume Addenda filed during the federal habeas proceeding in Case
No. 3:96-CV-883 (E.D. Tenn., Jarvis, J.)
No. 00-6136            House v. Bell                                                               Page 22


Muncey—victim,” and the nature of the case described as “rape-homicide.” Id. at pp. 4, 10, 12, 34. The
FBI lab reports analyze the semen based on the presupposition that it was “House’s” semen. On each of
the lab reports placed before the jury the words “FEDERAL BUREAU OF INVESTIGATION, UNITED
STATES DEPARTMENT OF JUSTICE” are prominently displayed at the top of the page just before “rape-
homicide” is identified as the nature of the case and House as the “suspect.” Id.
         The semen evidence referred to in these reports was placed before the jury and came in at the state
trial through the testimony of long-time FBI expert Agent Paul D. Bigbee, who specialized in analyzing
“physical evidence in criminal cases for the presence of blood and other body fluids.” Testimony of Paul
Bigbee, Trial Transcript, Addendum No. 4, Vol. VI, p. 883. He testified at length about the semen evidence.
Here are a few examples of his testimony on this subject:
       Q       All right, did you find semen on any of her items of clothing?

       A       Yes sir, I did.

       Q       Where did you find the semen?

       A       I found semen in the panties and on the gown.

       ....

       Q       Now, can you tell me, can you detect semen stains at times in determining things about the
               blood type of the person who emitted or the blood type of the person that semen is from?

       A       Yes, sir. If the person who deposited the semen is a secretor, which means eighty (80)
               percent of the population secrete the ABO blood group substances in other body fluids, such
               as semen and saliva, if that person is a secretor, then the ABO blood type can be determined
               from the semen.

       Q       How about Mr. House, is he a secretor?

       A       Yes sir, he is.

       ....

       Q       Can you tell me where, can you hold the gown up and show the jury where on the gown you
               found semen?

               (WITNESS COMPLIES WITH REQUEST)

       A       If you look on the front of the gown, at the very bottom here, you can see one cutting I took
               that has the number and letter, 1S, that is the location where I found the semen.

       Q       On the front of the gown?

       A       Front bottom portion.
No. 00-6136             House v. Bell                                                                    Page 23


        ....

        Q       You may put that back now. What can you tell us about the blood type, if you can tell us
                anything, of the person who that semen came from, the male that that semen came from?

        A       The person who deposited that semen was a blood type A.

        Q       Now, what blood type is Mr. House?

        A       He is blood type A.

        ....

        Q       [T]he semen on the nightgown could be from Mr. Muncey?

        A       It could be, however, I was not able to determine his secretor status.

        Q       And he is not definitely a secretor?

        A       I don’t know whether he is or not. I could not determine that.

        Q       But you know that Mr. House definitely is a secretor?

        A       Yes, sir.

        Q       And only if a person is a secretor, can you determine the blood type from the semen, is that
                right?

        A       That is correct.

Id. at pp. 896-900.

        In the State’s argument to the jury at the end of the guilt phase of the trial, the District Attorney told
the jury that rape was House’s motive in the following words:

        Now you may have an idea why he did it. The evidence at the scene which seemed to suggest that
        he was subjecting the lady to some kind of indignity, why would you get a lady out of her house,
        late at night, in her night clothes, under the trick that her husband has had a wreck down by the
        creek? Why is it that you want to get her down by the creek?.... It is either to keep her from telling
        what you have done to her, or it is that you are trying to get her to do something that she nor any
        mother on that road would want to do with Mr. House .... and you kill her because of her resistance.

Closing Argument, Trial Transcript, Addendum No. 4, Vol. IX, pp. 1302-03.

        After the jury returned its verdict at the guilt phase of the trial, the District Attorney advised the
court in preparation for the sentencing phase of the trial that the State’s theory requesting a death sentence
is based on “the fact that there was semen on the outer garment, that is the nightgown,” and “we say that
No. 00-6136            House v. Bell                                                                Page 24


the jury could well conclude that this murder occurred in the process of another crime, that being in the
process of either rape or attempted rape.” Trial Transcript, Addendum No. 4, Vol. X, p. 1381. The
prosecutor opened his argument at the sentencing phase by telling the jury:

       The defendant, the proof indicates, has in the past been convicted of aggravated sexual
       assault which is something that the judge will instruct you that you should consider....We
       also think the proof shows strong evidence of attempted sexual molestation of the victim to
       accompany the taking away and murdering her.

Id. at pp. 1410-11. The prosecutor then tied the prior conviction for sexual assault and this attempted rape
together arguing in favor of the death penalty because House has “been through the process before and
having been convicted of a crime involving . . . aggravated sexual assault,” he “cannot benefit from the type
of rehabilitation that correction departments can provide.” Id. at p. 1413. Then at the end of his
impassioned argument at the sentencing phase, the District Attorney returned again to this theme asking the
question, “did he commit this crime while he was engaged in an attempt at rape?” Id. at 1444. And then
he answered that question in the affirmative.

        As soon as the District Attorney sat down, the court charged the jury that the defendant “was
previously convicted of” sexual assault and then defined rape: “I will charge you that rape is the unlawful,
carnal knowledge of a woman forcefully and against her will. Carnal knowledge is accomplished by the
commencement of the sexual connection and proof of emission is not required.” Id. at p. 1447. The court
again for a second time said in charging the jury that they may sentence the defendant to death if “the
murder was committed while the defendant was engaged in committing or was attempting to commit or was
fleeing after committing or attempting to commit rape,” and defined rape again as “the unlawful carnal
knowledge of a woman, forcibly and against her will.” Id. at p. 1448. The jury then returned its verdict of
death saying that its reason for sentencing the defendant to death was that “the murder was committed while
the defendant was engaged in committing or was attempting to commit or was fleeing after committing or
attempting to commit rape or kidnapping.” Id. at p. 1455.

         When House appealed to the Tennessee Supreme Court, the State in its brief was not hesitant to
argue rape as the motive for the kidnapping and the murder and the basis of the jury’s death sentence. In
its brief, the State argued that the murder was committed while the defendant was engaged in attempting
to commit rape and that “[s]emen was found on the victim’s gown and panties and was consistent with the
defendant’s blood type.” Brief of the State of Tennessee, S. Ct. No. 2, Union County, filed Apr. 29, 1987,
Addendum No. 6, p. 49. It is against this background that the Tennessee Supreme Court cited the
prosecution’s claim that the evidence proved that “on her nightgown and underclothing some spots of semen
stain from a male secretor of the same general type as appellant.” State v. House, 743 S.W.2d at 143. The
Tennessee Supreme Court upheld House’s conviction and the imposition of the death penalty based upon
rape as the motive for the kidnapping and murder. Id. at 142. Even at the federal habeas corpus hearing
13 years later, Assistant Attorney General Glenn Pruden for the State, said that at the trial “an aggravating
factor was found that this murder was committed in the attempt to commit, to perpetrate a rape and the
perpetration of the kidnapping.” House v. Bell, No. 3-96-CV-883, Transcript of Habeas Hearing, p. 91 (E.D.
No. 00-6136                House v. Bell                                                                          Page 25


Tenn. Feb. 1, 1999).3 There can be no doubt that the State claimed rape as the motive from the beginning
and throughout the trial, and that the jury so found and that the Tennessee Supreme Court approved the
verdict on that basis.

        The newly discovered evidence conclusively removes rape as the motive and eliminates rape as the
aggravating circumstance that made the defendant eligible for the death penalty. Without any evidence of
rape, the State has lost its motive, its theory of the case and the aggravating circumstance on which the State
and the jury relied for its death verdict. House has met the standard for actual innocence of the death
penalty by conclusively disproving the aggravator that made him eligible for the death penalty. No rational,
reasonable juror could now find that House raped or attempted to rape Mrs. Muncey. Without any evidence
of rape, the court would now have to direct a verdict in favor of House on this issue.

                                              III. The Blood Evidence

        The State introduced at trial one other piece of highly incriminating scientific evidence: evidence
of Carolyn Muncey’s blood on the blue jeans worn by House on the night of the murder. Agent Paul Bigbee,
the agent from the FBI laboratory that did the actual testing on the blue jeans in July 1985, shortly after the
murder, testified that his testing demonstrated a clear match between the blood on the jeans and Mrs.
Muncey’s blood. At the 1999 federal habeas hearing, however, the State’s case was undermined by its own
medical examiner, Dr. Cleland Blake. Dr. Blake, the Assistant State Chief Medical Examiner, has been a
consultant in forensic pathology for the Tennessee Bureau of Investigation for 22 years and has testified for
the State in hundreds of cases. Dr. Blake testified at length that, based on enzymatic testing results
performed by the FBI, he had no doubt that the blood on House’s blue jeans was spilled, either accidentally
or intentionally, from the vials of blood taken from Mrs. Muncey’s body during her autopsy:

        Dr. Blake: I conclude that the deteriorated blood which was in the jeans came out of the test
        tube [because] both [the blood on the jeans and the blood in the vials] had lost the enzyme.

        ...

        The Court: So in your opinion then the blood on the jeans and the blood in the tube are one
        in the same.

        Dr. Blake: That is my opinion.

Testimony of Dr. Cleland Blake, Transcript of Habeas Hearing, pp. 116-17, Feb. 2, 1999 (emphasis added).
When we add to this testimony the fact that almost all of the blood in one of the vials was spilled and cannot
be accounted for, as explained below, Dr. Blake’s conclusion that the blood evidence does not now support
the jury verdict leaves little room for debate.

        Dr. Blake arrived at his conclusion based on his theory of what constitutes normal or expected
enzymatic degradation of blood in different media; that is, whether the blood is preserved in liquid form in
test tubes or vials or whether it is dried on cloth or other material. Depending on the medium on which the

    3
     Citations to the federal Habeas Hearing will be referenced as “Testimony of [witness], Transcript of Habeas Hearing, p.
____, [date].”
No. 00-6136                 House v. Bell                                                                                Page 26


blood is preserved, and the condition or state of the blood at the time it is preserved, the blood will degrade
at different rates. Dr. Blake found an unexpected consistency in enzyme degradation between the liquid
sample taken from Mrs. Muncey’s body after her death and the five samples of what the government
contends is fresh blood that stained House’s blue jeans as he allegedly murdered Mrs. Muncey.
Simplistically, the blood enzymes at issue here are proteins that are able to function properly only within
the living human body. Once outside the body, or after the body is no longer functioning, the enzymes start
to break down and lose their structure and shape and no longer function; they degrade and are said to
become “denatured.” Generally, “fresh” blood from a live victim that comes in contact with dry cloth is
“preserved” in a different, and generally better, way than blood that is stored in a test tube.4

        The blood tests performed by Agent Bigbee of the FBI on the victim's blood, stored in vials after
being taken from her body during the autopsy, and the five samples from the defendant's jeans, preserved
on the cloth of the blue jeans, looked for the presence of various enzymes (to see whether they had
denatured or not) in the blood. Of the ten enzymes tested, six had conclusive results. All six enzymes
matched, making it reasonable for Dr. Blake to conclude that the enzymes in the blood on the jeans degraded
at the same rate as the blood in the sample taken from the victim's body and stored in glass vials or test
tubes. Because they degraded at the same rate despite being “preserved” in two different media – test tube
vials and cotton cloth of blue jeans – it appears that the enzymes came from the same sample, that is, the
blood on the defendant's jeans came from the sample taken from the autopsy of the victim, not the victim
herself when alive.

        There is additional strong evidence that the sample in the vials of blood were mishandled or possibly
even tampered with and intentionally spilled on the jeans. Four vials of blood were taken from the victim
during her autopsy. The vials, along with other evidence, were transported by law enforcement officials
between Union County, Tennessee, and the FBI Laboratory in Washington, D.C. and back to Union County.
In reaching his conclusion that the blood on House’s blue jeans came from the vials of blood taken from
Mrs. Muncey after her death, Dr. Blake also noted that the blood evidence had been mishandled in this
matter. Although not an expert on the packaging and handling of evidence, Dr. Blake’s work requires him
to examine evidence that has been packaged and handled by others on a regular basis. He determined in
this case that the evidence had been mishandled and that blood had spilled from the vials, causing the
contamination of the blue jeans. Testimony of Cleland Blake, Transcript of Habeas Hearing, pp. 50-51,
Feb. 2, 1999. Dr. Blake testified that if tubes containing blood are not properly sealed, the stoppers on the
tubes may come out if the blood samples become too warm. Testimony of Cleland Blake, Transcript of
Habeas Hearing, pp. 51, Feb. 2, 1999.

        Detective Larry Johnson, of the Knox County Sheriff’s Department, also testified at the habeas
hearing as to the packaging and handling of the evidence in this case. Detective Johnson is an expert
witness in the area of crime scene investigation, having examined hundreds of homicides, robberies, rapes
and other crimes over 30 years. Detective Johnson testified after reviewing reports and photographs of the
packaging of the evidence in this case that “the packaging of the materials in the case did not meet
professional standards.” He testified that although each piece of evidence was separately wrapped, it was
placed in one box for transport or shipment, which is not the preferred manner of packaging. He testified


    4
      One technique favored by forensic professionals is to preserve blood samples on dry cotton sheeting or cloth in order to store
the samples with minimal degradation over time.
No. 00-6136                House v. Bell                                                                             Page 27


that the best way is to put the victim’s clothing in one container, the suspect’s clothing in one container and
biological evidence, like blood, in a different container to avoid transfer of potential evidence, such as fiber
coming in contact with fiber. All evidence should be separated, labeled and sealed. Testimony of Larry
Johnson, Transcript of Habeas Hearing, pp. 105-07, Feb. 1, 1999.

        In this case, the testimony of TBI agents Murray and Breeding, who transported the evidence from
Tennessee to the FBI in Washington, D.C., reveals that although the evidence from Mrs. Muncey’s body
may have been packaged separately, it was all transported to the FBI in Washington, D.C. in one box,
contrary to good forensic practice. Testimony of Larry Johnson, Transcript of Habeas Hearing, pp. 104,
Feb. 1, 1999. Moreover, it was the height of summer on the July day when the officers transported the
material in the trunk of their car from Union County to Washington, D.C. There is no testimony that the
trunk was air conditioned or that the blood samples from Mrs. Muncey were otherwise kept cool during the
long trip from Tennessee to Washington, D.C. As noted above by Dr. Blake, the stoppers can blow off of
blood vials if the sample becomes too warm.

        Another witness, Howard Bragdon, worked for DiaClin, the private company that did the blood
testing on the evidence at the request of House’s attorneys in October of 1985 after it had been in the
possession of the government for over three months.5 Mr. Bragdon transported the evidence, including the
Styrofoam box containing the vials of blood, from Union County to DiaClin’s offices in Nashville.
Testimony of Howard Bragdon, Transcript of Habeas Hearing, pp. 1-6, Feb. 2, 1999. He testified that there
was dried blood on the Styrofoam box when he took possession of it. Id. at pp. 6-7. The photographs taken
by DiaClin in October 1985 and introduced at the habeas hearing clearly show blood staining the Styrofoam
container used to transport the blood.

       Mr. Bragdon also testified that one of the four vials was only partially full and another was nearly
empty. Yet, Agent Bigbee testified that he used only one-fourth of a vial in performing his tests at the FBI
lab in Washington, D.C. Mr. Bragdon also testified that two of the vials appeared to be leaking or had
leaked when he picked them up in Union County.

        The documentation, or lack thereof, concerning the chain of custody of the blue jeans and Mrs.
Muncey’s blood samples is particularly troubling due to the evidence of possible mishandling of the
evidence. The purpose of the chain of custody requirement is to “demonstrate that there has been no
tampering, loss, substitution, or mistake with respect to the evidence.” State v. Braden, 867 S.W.2d 750,
759 (Tenn. Crim. App.1993). While the state is not required to establish facts which exclude every
possibility of tampering, the circumstances established must reasonably assure the identity of the evidence
and its integrity. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App.1987).

        The necessary “integrity” is lacking here. One exhibit introduced at the habeas hearing shows the
plastic bag labeled by the TBI that contained the blue jeans. Petitioner’s Ex. 10-6, Habeas Hearing, Feb.
1999. However, Agent Scott of the TBI testified that he put the jeans in a paper bag after retrieving them
from the clothes hamper at Donna Turner’s house after the murder. Testimony of Charles Scott, Transcript


    5
      Despite the State’s implication that it was somehow House’s fault that his experts did not have a chance to examine the
evidence until three months after the murder, House filed a motion in late July 1985 to gain access to the evidence gathered at
the time of the murder for purposes of testing. Motion for Samples, filed July 29, 1985, Addendum No. 1, pp. 5-6.
No. 00-6136                  House v. Bell                                                                                 Page 28


of Habeas Hearing at p.115, Feb. 3, 1999.6 In addition, the FBI list of evidence it received from the TBI
notes that the jeans were received in a sealed paper bag. FBI File, Addendum No. 2, Criminal Trial
Exhibits, Ex. 31, pp. 36, 49. The plastic bag bore a label with the name “Charles Scott” written on it, but
that label covers part of the markings made on the bag by the FBI, indicating that the label was put on after
the FBI did its analysis. This sequence of events makes no sense because Charles Scott was the first agent
to handle the jeans when he retrieved them from Ms. Turner’s house after the murder. Given the evidence
that the jeans were originally placed in a paper bag, Agent Scott’s label likely was moved from another
place – probably the original paper bag – and put on the plastic bag at a later time. The documentation
showing the chain of custody for the blue jeans is of no help in sorting out the sequence of events. I can find
no subsequent records showing when or by whom the jeans were transferred from the paper bag to the
plastic bag.

        Finally, adding to the likelihood that the blood samples were spilled on the jeans at some point after
they were removed from Ms. Turner’s home, the plastic bag holding the blue jeans appeared to have blood
stains on it when received by Lisa Calandro, an expert in forensic DNA analysis and biological evidence
analysis hired by House. See Photograph of plastic bag, Petitioner’s ex. 10-6, Habeas Hearing, Feb. 1999;
Respondent’s Ex. 21, Habeas Hearing, Feb. 1999 (same). Ms. Calandro testified that the outside of the bag
tested positive for the presence of blood, but analysis to further identify its source was unsuccessful.
Testimony of Lisa Calandro, Transcript of Habeas Hearing, p. 76, Feb. 1, 1999.

         This mystery of how the blue jeans got from the paper bag in Tennessee to a plastic bag sometime
later, the confusion in the labeling of the bag, the evidence of blood spilled inside the box containing the
evidence, and the acknowledgment of missing blood demonstrate that critical evidence in this case was
possibly tampered with, or, at the very least, not handled according to recognized protocol and accidentally
spilled.

         The testimony of Pauline Sutton also raises questions as to whether the jeans were tampered with.
She noted that some of the blood stains were mixed with mud. The National Weather Service records show
that it had not rained for three days prior to the murder, and photographs of the crime scene showed no mud
present. There was no mud on the victim's clothing. This evidence is inconsistent with the State’s
contention that the mud and blood got on the jeans at the crime scene.

       While the State acknowledges, and even stipulates on the record, that some of the blood taken from
Mrs. Muncey’s body after her death cannot be accounted for and was likely spilled, Statement of Assistant
Attorney General Glenn Pruden, Transcript of Habeas Hearing, p. 115, Feb. 1, 1999, as shown by the
evidence introduced at the habeas hearing, it has offered no explanation nor even shown any interest in
determining what happened to the missing blood.

      Unlike many cases where accusations about chain of custody problems or mishandling of evidence
are made, this is not a case where an inference of mishandling of the evidence has been made with no


    6
      Clothing evidence is generally not stored in plastic bags because the bags do not “breathe” and any biologic material on
the clothing will degrade faster when in a plastic bag than a paper bag. Detective Larry Johnson, an expert on the packaging and
handling of evidence, testified that clothing that might contain body fluids should not be placed in plastic because the plastic tends
to draw moisture and starts to break down the fluids more quickly. Testimony of Larry Johnson, Transcript of Habeas Hearing,
p. 111, Feb. 1, 1999.
No. 00-6136             House v. Bell                                                                Page 29


evidence to support such an inference or a case where there is simply a short gap in time where custody of
the evidence cannot be determined. Here, both parties agree that blood was spilled or leaked from the vials.
There is a blood stain on the container that held the blood samples and a blood stain on the plastic bag that
contained House’s blue jeans. The vials themselves clearly show that significant leakage occurred and
blood is missing from at least one of the vials that has not been accounted for through testing. What has not
been established is when this spillage or leakage happened or how it happened. This inability to account
for the blood through either the chain of custody or testimony from an individual along that chain, and the
undisputed existence of blood stains on the container that transported the blood vials eliminates the
probative value of the blood evidence. Surely the facts demonstrating the lack of care in handling the
evidence, when viewed in conjunction with Dr. Blake’s expert testimony that the blood on the blue jeans
came from the vials taken from Mrs. Muncey’s body after her death, not when she was alive, would lead
a reasonable juror, hearing this evidence, to have a substantial and serious doubt as to House’s guilt. The
Blake testimony together with the spillage creates a high probability that the blood on the House jeans came
from a vial of blood.

                 IV. Newly Discovered Evidence That Mr. Muncey Killed His Wife

        In addition to the newly discovered scientific evidence concerning the semen and blood stains, there
is now strong independent evidence against Mr. Muncey as the perpetrator of the crime. There is no reason
to believe that a jury would reject the testimony of the two life long residents of the Luttrell community who
describe Mr. Muncey’s weeping confession to them that he killed his wife accidentally while beating her.
The women have no reason to fabricate, no axe to grind. Nor is there a reasonable basis for rejecting the
highly incriminating testimony of two other women and the security guard at the Saturday night dance.
Because the Court and the prosecution question the credibility of these witnesses and the inferences to be
drawn from their testimony, we will quote their testimony in detail so that readers can make judgments for
themselves.

       Penny Angela Letner, a life long native of the Luttrell community, testified that there was a small
gathering at the house of her sister, Kathy Parker, near the time of House’s trial in 1986. At that time Mr.
Muncey confessed that he killed his wife under the following circumstances:

       Q.      Okay. If you would, just tell His Honor, what happened at that party.

       A.      I came in — and we call him Bubba — he was sitting there and he was pretty well blistered.
               I could tell by the way he was talking.

       Q.      Who do you call Bubba?

       A.      Hubert Junior. We call him Bubba. We growed up around him. That was just a nickname
               for us. He was sitting there and he went to crying and was talking about his wife and her
               death and he was saying that he didn’t mean to do it.

               MS. LUSTRE: Objection.

               THE COURT: Same ruling. Go ahead.
No. 00-6136           House v. Bell                                                               Page 30


       A.     He said he didn’t mean to do it. That she was “bitching him out” because he didn’t take her
              fishing that night, that he went to the dance instead. He said when he come home that she
              was still on him pretty heavily “bitching him out” again and that he smacked her and that she
              fell and hit her head. He said I didn’t mean to do it, but I had to get rid of her, because I
              didn’t want to be charged with murder.

       Q.     What did you do, when you heard this?

       A.     When he said that he had to get rid of her, it scared me quite badly. I was 19 year old with
              a small child. I got out of there immediately. After he made those statements, I was ready
              to leave there.

       Q.     Had Little Hube been drinking that evening?

       A.     From the way he was acting, quite a bit. He was talking kind of stiff tongued like, but it
              wasn’t to the point that I couldn’t understand what he was saying.

       Q.     Was he emotional when he was telling the story?

       A.     He was crying. He was very upset.

Testimony of Penny Letner, Habeas Hearing Transcript, pp. 28-29, Feb. 1, 1999.

On cross-examination, she explained her reason for coming forward in 1999 to give this testimony:

       Q.     Did you report this to the police?

       A.     No. I didn’t. I was 19 year old. I was kind of scared. I was frightened, you know. I didn’t
              know how to take it. I figured me being 19 year old they wouldn’t listen to anything I had
              to say.

       Q.     How is it that you came to give a statement now?

       A.     They was some people came and started asking questions and I answered their questions
              truthfully.

       Q.     What people?

       A.     It was an investigation that was ongoing for Mr. House.

       Q.     Do you remember who it was that came to talk to you?

       A.     Michael Lee was the first gentleman that I spoke with. He was the first one that questioned
              me.

       ....
No. 00-6136            House v. Bell                                                               Page 31


       Q.      Why did you not tell Mr. Lee to get lost, essentially?

       A.      Because it’s not right. The gentleman stood right there in my face in front of several people
               and owned up to doing it. It’s not right for a man to be in jail for something he didn’t do.

       Q.      What made it not right 13 years later but okay for the intervening 13 years?

       A.      There wouldn’t nobody listen to me. Finally there was someone willing to talk to me.

Id. at pp. 31-32.

       Kathy Parker, Mrs. Letner’s sister, also testified as follows about Little Hube’s confession and her
reasons for coming forward:

       Q.      Do you have any recollection about anything that he said?

       A.      Oh, yeah, he said they had been into an argument and he slapped her and she fell and hit her
               head and it killed her and he didn’t mean for it to happen.

       Q.      Was he intoxicated?

       A.      He was drinking real heavily, yeah.

       Q.      Was he emotional?

       A.      Very.

       Q.      All right. How very is very?

       A.      Well, he was crying and just all to pieces.

       Q.      All right. How long had he been there before he told you about this incident?

       A.      Maybe 10 or 15 minutes, not real long.

       Q.      Did he say what they were arguing about?

       A.      He had wanted to go to a dance or something or another and was wanting to go somewhere
               else. That is what they got into an argument over.

       Q.      What did you do when you heard Little Hube say he hit his wife and she died?

       A.      I freaked out and run him off.

       Q.      You freaked out?

       A.      I freaked out and ran him off.
No. 00-6136           House v. Bell                                                                   Page 32


      Q.      Okay. After the party did you tell anybody about this?

      A.      Not that night. The next day I went to Union County and tried to talk to some law people
              and —

      Q.      Would they listen to you?

      A.      Went to Union County to the Sheriff’s Department. I tried to speak to the Sheriff but he was
              real busy. He sent me to a deputy. The deputy told me to go upstairs to the courtroom and
              talk to this guy. I can’t remember his name. I never did really get to talk to anybody.

      Q.      Tried to tell them?

      A.      Yeah.

      Q.      Did you talk to your mother about it?

      A.      A little later on there wasn’t a whole lot said about it, but she was the one that took me to the
              courthouse.

      Q.      Your mother went with you to the courthouse that day?

      A.      She drove me. I didn’t have a vehicle.

      Q.      Did you know Carolyn Muncey?

      A.      Yes, sir.

      Q.      Are you aware of whether or not Little Hube had ever abused her or beat on her?

      A.      She was constantly with black eyes and busted mouth.

      ....

      Q.      Let me ask you this. You know Little Hube?

      A.      Yes, sir.

      Q.      How long you been knowing him?

      A.      I dated him when I was 14 year old. I will be 42 in June.

      Q.      You have known him a long time?

      A.      Yes.

      Q.      Well, have you had any disagreement with him lately, any arguments, fights?
No. 00-6136              House v. Bell                                                          Page 33


       A.     No.

       Q.     Are you mad at him?

       A.     No.

       Q.     Why are you here today?

       A.     Because I don’t think what has happened is right. It needs to be taken care of. An innocent
              man is in jail.

       Q.     Do you know the petitioner, Paul House?

       A.     No, sir.

       Q.     Ever met him?

       A.     No, sir.

Testimony of Kathy Parker, Habeas Hearing Transcript, pp. 37-39, Feb. 1, 1999.

         Around two months before the murder of Carolyn Muncey, Mr. Muncey also told Hazel Miller, also
a life long resident of Luttrell, that he was going “to get rid of that woman one way or the other”:

       Q:     All right. Back prior to the death of Mrs. Carolyn Muncey, did you have occasion to see
              Little Hube Muncey in your residence?

       A.     Yes, sir, sure did.

       Q.     About how long before Mrs. Carolyn Muncey’s death was Little Hube in your house?

       A.     Two, three months, something like that.

       Q.     What was he there for, if you know?

       A.     He come tried to get my daughter to go out with him.

       ....

       Q.     What did Little Hube say?

       A.     He was upset with his wife, that they had had an argument and he said he was going to get
              rid of that woman one way or the other.

       Q.     What did you say?

       A.     Told him he ought to go home to his wife and kids and take care of them.
No. 00-6136             House v. Bell                                                                Page 34


       Q.      Did he say anything about his kids?

       A.      He said his mother told him she was going to help him take care of them.

       ....

       Q.      Now, I take it you have known Little Hube for a while?

       A.      Yes. Basically about all his life.

       ....

       Q.      Have you had any disagreements or arguments or fights with Little Hube or any members
               of his family?

       A.      No, he has always treated me decent.

       Q.      Are you all presently on the outs? Are you mad at him or anything?

       A.      No.

       ....

               THE COURT: All right. Where did this conversation take place?

       A.      At my kitchen table.

               THE COURT: You said he ought to go home to his wife and children?

       A.      Wife and kids, yes. I thought he should.

               THE COURT: What did he say to you?

       A.      He was going to get rid of her one way or the other. I presume he meant he was going to get
               a divorce.

Testimony of Hazel Miller, Habeas Hearing Transcript, pp. 47-50, Feb. 1, 1999.

        In addition to the confession to Letner and Parker and the “get rid of” statement to Miller, there was
additional evidence incriminating Muncey at the habeas hearing. Hubert Muncey insisted he was at the
dance until it ended on Saturday night and then went home after midnight to find his wife missing. This
testimony is inconsistent with the testimony of Dennis Wallace, the security guard on duty at the dance.
He testified:

       Q.      All right. During that period of time did you see Little Hube Muncey at the dance?

       A.      Yes, sir, I did.
No. 00-6136             House v. Bell                                                            Page 35


       Q.      And during that period of time before the dance was over did you see Little Hube Muncey
               leave the dance?

       A.      Yes, sir, I did.

       Q.      All right. Then subsequent to that, did you see Little Hube Muncey return to the dance?

       A.      Not that I can recall.

       ....

       Q.      Do you remember approximately what time Little Hube Muncey left the dance that evening?
               When you say saw him leave, before it was over?

       A.      I would say around 10:00, 10:30, 9:30 to 10:30. I don’t know exactly.

       Q.      You don’t recollect now having seen him come back to the dance?

       A.      No.

Testimony of Dennis Wallace, Habeas Hearing Transcript, pp. 56-57, Feb. 1, 1999.

      Mrs. Artie Lawson testified that she is “a good friend” of Little Hube’s and that he came to see her
Sunday morning to get her to help him establish an alibi for Saturday evening. This conversation on Sunday
morning took place several hours before the body was found and before it became clear that Mrs. Muncey
was murdered, not just missing. Mrs. Lawson testified:

       A.      Well, this Little Hube, he come to my house that morning on Sunday morning and he asked
               me if anybody come to say anything, you know, talk to me, to tell them that he was there at
               six o’clock.

       ....

       A.      He asked me if anyone, you know, come and asked me anything to tell him that he had, that
               I was at the dance that Saturday night — but I was not. He said that he had eat breakfast
               down there [at my house] at six o’clock that Sunday morning and he did not.

Testimony of Artie Lawson, Habeas Hearing Transcript, pp. 20-22, February 1, 1999.

        Hours before his wife’s body was found, Muncey went to Mrs. Lawson and tried to establish an alibi
for Saturday night. He in fact had no alibi. He left the dance an hour and a half early and is unable to
account for his whereabouts at the very time the county coroner gave as his best estimate as the time of
death. Then early the next morning before the body was discovered, he went to Mrs. Lawson in an effort
to enlist her help in establishing an alibi.

       The evidence of what happened at the Muncey home on Saturday evening further undermines the
case against House and further incriminates Muncey. Pamela Luttrell and her husband lived across the road
No. 00-6136            House v. Bell                                                               Page 36


from the Munceys. Mrs. Luttrell testified that Carolyn Muncey came to her house sometime around 8:00
P.M. on Saturday evening with her children and “stayed an hour or an hour and a half” and “said that Little
Hube had gone to dig a grave and he hadn’t come back.” Testimony of Pamela Luttrell, Addendum No. 4,
Vol. II, pp. 632-33. She testified that between 10:00 and 11:00 “within an hour or so after she left” with
her children to go back home, Mrs. Luttrell believed she heard Little Hube’s car coming back home:

       Q.      Now, after she left, did you see or hear anything else that night that drew your attention to
               outside directly in the vicinity of Carolyn Muncey’s home?

       A.      I heard a car rev its motor as it went down the road.

       Q.      And you had heard that sound before or you thought you had heard that sound before, hadn’t
               you?

       A.      Well, I have heard a sound like it.

       ....

       Q.      And that was the impression you got that night, wasn’t it, that that was Little Hube’s car
               revving up?

       A.      Yeah, just going by.

       Q.      And when he’d get to the house there, he would rev up. Is that correct?

       A.      And then keep going.

       Q.      Now that would have been somewhere around — after Carolyn had left and before you went
               to bed. You went to bed within an hour or so after she left?

       A.      Uh, huh (meaning yes by sound), I was on my way to bed when I heard it.

Id. at pp. 641-42.

        Mrs. Luttrell testified that the car was coming from the direction in which Muncey’s car would have
traveled coming from the dance, from Kitts Road toward Tazewell Pike and “revved up” when he got to the
house, as he usually did. Mrs. Luttrell’s testimony is consistent with the testimony of Constable Wallace
that Muncey left the dance well before it ended. It is inconsistent with Muncey’s testimony that he stayed
at the dance until it ended. Together with the testimony of Wallace, Mrs. Luttrell’s testimony places
Muncey at home between 10:00 and 11:00 that evening — the approximate time that the coroner testified
that the murder occurred.

       In addition, Pamela Luttrell’s testimony about what happened later that evening is also completely
inconsistent with the theory that House came to the Muncey home on foot during the evening and abducted
Carolyn and murdered her. Luttrell testified that Little Hube, along with the two children, Laura and Matt,
came to her home at about 1:00 A.M. that evening and told her Carolyn was missing. At that time, Luttrell
No. 00-6136             House v. Bell                                                                Page 37


questioned Laura in detail about what had happened that evening after she got home from her earlier visit
to Luttrell’s house. Laura said that she and her younger brother had gone to sleep:

        Q.     Mrs. Luttrell, Laura talked with you after she discovered her mother missing?

        A.     Yes.

        Q.     Did she tell you whether or not she woke up one time or two times, as far as different people
               coming to the house asking questions?

        A.     Well, she said she heard a horn blow, she thought she heard a horn blow, and somebody
               asked if Bubbie was home and her mama, you know, told them — no. And then she said she
               didn’t know if she went back to sleep or not, but then she heard her mama going down the
               steps crying and I am not sure if that is when she told me that she heard her mama say — Oh,
               God, no, not me, or if she told me that the next day, but I do know that she said she heard
               her mother going down the steps crying.

Id. at 658.

        Luttrell further testified that Laura told her that the man who asked for “Bubbie” after the horn blew
sounded like her grandfather, whom she called “PawPaw.” Luttrell said that “Bubbie” was a family name
not normally used by others in the community who called Muncey “Little Hube.” Laura said nothing in
answer to Pamela Luttrell’s questions that evening about anyone saying during the evening that Little Hube
had been involved in an automobile accident. This evidence seems completely inconsistent with the State’s
theory that House walked almost two miles at around 10:30 on Saturday evening to the Muncey home where
he abducted and murdered Carolyn Muncey. It is clear that House did not have a car that evening, did not
blow a car horn, would not have called Little Hube “Bubbie,” did not enter the Muncey home, wake up the
Muncey children or talk to Carolyn Muncey within the ear shot of the children. In the contemporaneous,
immediate conversation between Mrs. Luttrell and Laura, Laura said that she heard a horn blow, someone
ask for “Bubbie,” who was not there and that person “sounded like PawPaw,” who called Little Hube by
his family nickname, “Bubbie.”

        Although it is true, and highly incriminating, that House left his home on foot during a similar time
on Saturday evening and returned with bruises and in a disheveled condition, Pam Luttrell’s testimony that
Little Hube came home around 10:30 and Laura’s testimony about the hornblowing and the “PawPaw”
voice leaves no room for the State’s theory that House walked two miles to the Muncey house and murdered
Carolyn Muncey and then walked two miles home within a relatively short period of time. The inference
that he murdered Carolyn Muncey from the fact that he left home on foot on Saturday evening and returned
with bruises and in a disheveled condition cannot be reconciled with Mrs. Luttrell’s testimony about when
Little Hube came home and Laura’s answers to her questions about what happened that evening. Mrs.
Luttrell’s testimony is consistent with the testimony of Constable Wallace that Mr. Muncey left the dance
at about 10:30 P.M. as well as Muncey’s confession, his previous threats and brutal treatment of his wife
and his attempt to establish an alibi through Mrs. Lawson on Sunday morning.

       This particular highly incriminating evidence about House’s returning home in a disheveled
condition on Saturday night with “blood on his pants,” and his semen on the victim’s night gown, however,
No. 00-6136            House v. Bell                                                             Page 38


does go a long way in explaining the jury’s capital conviction of House, a stranger in a community with a
record of sexual assault, especially when it did not have any of the newly discovered evidence undermining
the prosecution’s theory of the case. In the absence of the newly discovered evidence, the State’s theory
seemed convincing. In light of the new evidence, it is no longer tenable. In my view, it is more probable
than not that House is innocent of the homicide and that Mr. Muncey killed his wife, as he confessed. Six
witnesses — Letner, Parker, Miller, Wallace, Lawson, and Luttrell — now provide either direct or
circumstantial evidence that Mr. Muncey killed his wife. He had a motive. The motive attributed to House
no longer exists.
No. 00-6136   House v. Bell   Page 39
No. 00-6136             House v. Bell                                                                     Page 40


                             V. The Unreliability of the Hensley Testimony

       The preceding map of the area where Carolyn Muncey’s body was found is necessary to understand
the weakness of the testimony of the one remaining witness, Billy Ray Hensley, who gave highly
incriminating evidence at the 1986 trial. The opinion of our court accurately characterizes Hensley’s
testimony as a series of “inconsistent statements about when and where he saw House on Ridgecrest Road”
supposedly “carrying a black rag.” The prosecution claimed at the trial that the “black rag” was House’s
blue shirt which he had lost the night before and had just retrieved after climbing down the embankment
where he had left Carolyn Muncey’s body.

       House explained his presence near Muncey’s house at the habeas hearing. He testified that he
regarded “Little Hube” and Carolyn Muncey as friends and he heard on Sunday morning that she was
missing. He borrowed the car of his girl friend, Donna Turner, and drove down to the area on Ridgecrest
Road where he knew they lived. This testimony is corroborated by other witnesses. He missed the
driveway which was hidden in trees and undergrowth and turned around and parked the car near Merritt’s
barn and walked back up about 90 feet and found the driveway and saw that Muncey’s car was not at home.
He walked back down Ridgecrest Road to his car:

       Q.      You went back to your car. Did you get in?

       A.      Yes.

       Q.      And start driving?

       A.      I got in, pulled out. I was going to — between Little Hube’s and Tazwell Pike there is
               another dirt road like a dead end.

       Q.      Somewhere off the chart?

       A.      Yeah, it is on his side where he lived. It is on that side of the road. It is just a dirt road, dead
               end. Bill Silvey had told me that people went to drink down there. Donna had told me that
               people went to drink down there. Donna had told me she had seen him drinking. I thought
               why not look there. As I was going up there, then Bill Hensley, I guess that is the name, was
               in the car. I saw him and he was coming towards me. I was going toward him. I waved him
               over. He stopped.

       Q.      He was in the little blue car?

       A.      Right. I asked him if he knew Little Hube. He said he did. Asked him if he had seen him,
               he said he hadn’t, didn’t see him around there anywhere.

Testimony of Paul House, Transcript of Habeas Hearing, p. 91, Feb. 3, 1999.

Hensley had also testified at the 1986 trial that House while in his car waved him to stop at that location on
Ridgecrest Road and told him he was looking for Little Hube.
No. 00-6136                 House v. Bell                                                          Page 41


       The incriminating part of Hensley’s testimony at the trial was that as he was coming down Bear
Hollow Road approximately 100-150 feet from its intersection with Ridgecrest Road he saw House coming
up an embankment where the victim’s body was later found:

       Q.        Now, you say that as you were coming down, we will call this Bear Hollow Road, just so the
                 jury and everybody will know the roads we are talking about. Before you got to this
                 intersection, before you turned left [onto Ridgecrest Road] to go to Tazewell Pike, you say
                 you saw my client, Mr. House?

       A.        Yes, sir.

       Q.        All right. You weren’t at the intersection, were you?

       A.        No, sir.

       Q.        In fact, you have previously told us you were somewhere between 100 and 150 up from the
                 intersection, weren’t you — 100 to 150 feet up from the intersection?

       A.        Yes, sir.

Testimony of Billy Hensley, Addendum No. 4, Vol. V, p. 717.

After Hensley turned onto Ridgecrest road, he did not see House, according to his testimony:

       Q.        From the time that you made your left-hand turn, what was the first thing you saw in
                 relationship to Mr. House or his vehicle?

       A.        I saw his vehicle.

       Q.        And at no time after you made your left-hand turn could you say where Mr. House was in
                 relationship to the bank, the side, the road or anywhere in there, is that correct?

       A.        No sir, I could not.

Id. at 719-20.

       There are two serious problems with this testimony. It is directly contrary to the statement Hensley
gave to the police on the Sunday evening after the victim’s body was found. In that statement he said that
he turned left at the intersection and he:

       travelled about 500 feet on Ridgecrest Road when I saw about a ‘66 or ‘67 white Plymouth
       sitting on the left side of Ridgecrest Road and I saw a man, later identified to me as Paul
       Gregory House enter the roadway from the right-hand side of the road. He was coming up
       over the bank, and he had a black rag in his hands and he was wiping his hands. I drove on
       by the man and went to Little Hube’s driveway . . .
No. 00-6136             House v. Bell                                                                  Page 42


Statement of Billy Ray Hensley taken by TBI on July 14, 1985, Addendum No. 1, p. 139; see also
Testimony of Billy Hensley, Addendum No. 4, Vol. V, p. 729.

       Hensley testified on cross-examination about the statement:

       Q.      Did you tell the police that on Sunday at 10:45 p.m., did you talk to them Sunday night, the
               same night -

       A.      Oh, yes.

       Q.       And you gave them that statement, did you not?

       A.       Yes, sir.

Testimony of Billy Hensley, Addendum No. 4, Vol. V, p. 730.

This statement that Hensley was at the embankment and saw House “coming up” is clearly contrary and
unreconcilable with his trial testimony that he saw House 100-150 feet up Bear Hollow Road and did not
see him after he made the turn onto Ridgecrest Road. The cross-examination of Hensley revealed not only
these contradictions in his statements about where he was when he claimed to see House, as our court’s
opinion recognizes, but also it revealed the fact that as Hensley drove down Bear Hollow Road that various
obstructions like Merritt’s barn and trees would have prevented him from seeing anyone in the vicinity of
the embankment where he claimed to have seen House. The map itself, the testimony and photographs,
show conclusively that Hensley could not have seen House from that location on Bear Hollow Road.

       Hensley’s contradictory and implausible testimony is the last incriminating straw in the case against
House. Like the semen evidence and the blood evidence it is no longer probative. It is a slender reed indeed
on which to hang House’s conviction and death sentence.

                                               VI. Conclusion

        This is a death penalty case based purely on circumstantial evidence in which the prisoner has
maintained his innocence during 20 years of incarceration. I would hold that he has easily met the
requirements necessary to travel through the gateways of actual innocence of both the death penalty and the
homicide by completely disproving the motive for the crime and the aggravator (rape) and through
persuasive evidence undermining the main circumstances that gave rise to his conviction (the blood
evidence and the Hensley testimony). This body of evidence alone meets both the Sawyer standard, that
petitioner show by clear and convincing evidence that but for constitutional error at trial, no reasonable juror
would have found him eligible for the death penalty and the Schlup standard, that petitioner show that it is
more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The
Court stated in Schlup that since gateway claims assert constitutional error at trial, these “convictions may
not be entitled to the same degree of respect” as convictions that are the product of error free trials. Schlup,
513 U.S. at 316. At a minimum, based on the newly presented evidence we should allow House to pass
through the gateway so that his constitutional claims of ineffective assistance of counsel at the guilt and
penalty phases of the case become cognizable again. The remedy for passing the gateway test is a remand
for further proceedings on the underlying constitutional claim.
No. 00-6136             House v. Bell                                                                  Page 43


        In this case, however, I would go further and issue the writ of habeas corpus because the prisoner
has affirmatively established a free-standing case of actual innocence. This is that rare and extraordinary
case where petitioner has provided “a truly persuasive demonstration of ‘actual innocence’” that should free
the prisoner immediately. Herrera, 506 U.S. at 417. Through extremely persuasive and affirmative
evidence that Mr. Muncey killed his wife, House has shown that it is highly probable that he is completely
innocent of any wrongdoing whatever. There is no reasonable basis for disbelieving the six witnesses who
now incriminate Mr. Muncey as the perpetrator of the crime. The most compelling part of this new
testimony involves his confession to the murder in front of two witnesses who have no connection to House
and no bias against Mr. Muncey. Furthermore, before his wife’s body was even located, he solicited a
neighbor to fabricate an alibi on his behalf. He was heard returning home around the time of the murder.
And considering his history of domestic violence and his wife’s plans to leave him he had a motive to kill.
In contrast, there is no evidence of a motive for House. All of the state’s physical evidence, both blood and
semen, allegedly tying House to the murder, has been effectively rebutted. The new body of evidence as
a whole so completely undermines the case against House and establishes a persuasive case against Muncey
that, had it been presented at trial, no rational juror could have found evidence sufficient for conviction.
The new evidence so completely turns the case around that the proof is no longer constitutionally sufficient
to warrant a conviction or imposition of the death penalty. Thus House should be immediately released.

         Justice Scalia has referred to the question before us of actual innocence as death penalty’s most
“embarrassing question,” a question he hoped “with any luck we [the Supreme Court] shall avoid ever
having to face” in a “convincing” case. Herrera v. Collins, 506 U.S. at 428. Justice O’Connor has referred
to this “embarrassing question” as a serious current problem: “If statistics are any indication, the system
may well be allowing some innocent defendants to be executed.” Speech to Women Lawyers in Minnesota,
July 2, 2001.

       This case and the few empirical studies that we have reinforce Justice O’Connor’s view that the
system is allowing some innocent defendants to be executed. See Radelet & Bedau, Miscarriages of Justice
in Potentially Capital Cases, 40 Stan. L. Rev. 21-179 (1987) (includes tables and summary description of
numerous capital cases in which innocent defendants were probably executed); Zimming, The
Contradictions of American Capital Punishment 149-178 (2003) (summary of the studies, including study
by Death Penalty Information Center describing 98 prisoners fully exonerated after time on death row
between 1973 and 2001).

         High on the list of the causes for mistakes are the kinds of errors we see in this case: the
misinterpretation or abuse of scientific evidence, the adverse inferences drawn from the prior record of a
defendant, particularly one who is a stranger in the local community, the failure of counsel to uncover (until
it is too late) witnesses who could exonerate the defendant, and the existence of one or more other suspects
with a motive to commit the offense. Once the initial trial and appeal have occurred, it is clear from the
studies that the state, and its officials who have prosecuted, sentenced and reviewed the case, are inclined
to persevere in the belief that the state was right all along. They tend to close ranks and resist admission
of error. Intelligent citizens who strongly believe in the reliability of the capital sanction are also inclined
to persevere in the belief that a case raising the “embarrassing question” will never really arise and close
ranks with the state in resisting the admission of error. This case is a good example of how these errors can
lead to the execution of a defendant who is actually innocent.
No. 00-6136   House v. Bell   Page 44
No. 00-6136             House v. Bell                                                                  Page 45


                                            _________________

                                                DISSENT
                                            _________________

       RONALD LEE GILMAN, Circuit Judge, dissenting. After reading Judge Norris’s majority opinion
and Judge Merritt’s dissent, I am convinced that we are faced with a real-life murder mystery, an authentic
“who-done-it” where the wrong man may be executed. Was Carolyn Muncey killed by her down-the-road
neighbor Paul House, or by her husband Hubert Muncey? The evidence at House’s state-court trial clearly
pointed to him as the perpetrator, highlighted by the physical evidence of the semen and the blood. But the
evidence at House’s habeas corpus hearing before the district court just as clearly pointed to Hubert Muncey
as the guilty party, highlighted by Muncey’s confession of guilt to two female acquaintances, the
uncontroverted fact that the semen found on his wife’s clothing turned out to be his own, and the
considerable doubt cast on how the victim’s blood came to appear on House’s blue jeans.

       At the end of the day, I am in grave doubt as to which of the above two suspects murdered Carolyn
Muncey. I am also puzzled as to why more of my colleagues are not similarly in doubt after evaluating the
well-written but diametrically opposed opinions by Judges Norris and Merritt. Be that as it may, the
question becomes what is a federal judge to do when faced with such grave doubt? The United States
Supreme Court, fortunately, has provided an answer in the case of O’Neal v. McAninch, 513 US. 432
(1995), a case that incidentally arose out of the Sixth Circuit. Its key holding is as follows:

        We repeat our conclusion: When a federal judge in a habeas proceeding is in grave doubt
        about whether a trial error of federal law had “substantial and injurious effect or influence
        in determining the jury’s verdict,” that error is not harmless. And, the petitioner must win.

Id. at 436.

         The Court in O’Neal also defined the term “grave doubt,” stating that “[b]y ‘grave doubt’ we mean
that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.” Id. at 435. Finally, the Court noted that

        our conclusion is consistent with the basic purposes underlying the writ of habeas corpus.
        As we have said, we are dealing here with an error of constitutional dimension—the sort that
        risks an unreliable trial outcome and the consequent conviction of an innocent person.

Id. at 442.

       The risk of an unreliable trial outcome is precisely what we are dealing with in the case before us.
For the reasons well-documented in Judge Merritt’s dissenting opinion, I believe that House has passed
through the Schlup “actual innocence” gateway and is entitled to our consideration of his constitutional
claims on their merits. On the other hand, I disagree with Judge Merritt’s conclusion that the proof in favor
of House is so strong that we should issue an unconditional writ of habeas corpus.

      The proper disposition of this case, in my opinion, is to issue a conditional writ that would free
House unless he is provided a new trial by the state of Tennessee. See Castleberry v. Brigano, 349 F.3d
No. 00-6136            House v. Bell                                                              Page 46


286, 294 (6th Cir. 2003) (granting a conditional writ of habeas corpus to vacate the defendant’s conviction
and sentence unless the state commenced a new trial against the defendant within 90 days). A new trial
would allow the jury to assess House’s guilt or innocence free from the erroneous introduction of the semen
evidence, with full knowledge of the controversy surrounding the blood evidence, and with the benefit of
the testimony implicating Hubert Muncey. Under circumstances where we face the execution of a man who
might well be innocent, I believe that our system of justice demands no less.
