                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 19-305


In re: EMERSON EUGENE STEVENS,

                    Movant.



On Motion for Authorization to File a Second or Successive Petition for a Writ of Habeas
Corpus, Under 28 U.S.C. § 2244.


Argued: January 29, 2020                                        Decided: April 15, 2020


Before FLOYD, THACKER, and RICHARDSON, Circuit Judges.


Motion granted by published opinion. Judge Richardson wrote the opinion, in which Judge
Floyd and Judge Thacker joined. Judge Thacker wrote a separate concurring opinion.


ARGUED: Jennifer Leigh Givens, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Movant. Matthew P. Dullaghan, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent. ON
BRIEF: Deirdre M. Enright, The Innocence Project, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Movant. Mark R. Herring, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Respondent.
RICHARDSON, Circuit Judge:

       Over three decades ago, a Virginia state court tried and convicted Emerson Eugene

Stevens of first-degree murder and abduction with intent to defile. Stevens was paroled in

2017 but continues to challenge his convictions. Many years ago, we rejected Stevens’s

first federal habeas application. But he now seeks to file another federal habeas application

attacking his convictions.       According to Stevens, new evidence disclosed by the

Commonwealth of Virginia in 2016 proves his innocence.

       Before Stevens can file this successive habeas application, he must obtain

authorization from this court. 28 U.S.C. § 2244(b)(3)(A). And we may authorize that

application only if Stevens makes a prima facie showing that he satisfies § 2244(b)(2)’s

threshold requirements. Id. § 2244(b)(3)(C). Because we conclude that Stevens has

cleared this initial hurdle on the path to habeas relief, we authorize him to file his successive

application in the district court.

                                               I.

       On August 23, 1985, a twenty-four-year-old mother of two went missing in

Lancaster County, Virginia. Four days later, police found her body in the Rappahannock

River—strangled and weighed down with a cinderblock. Virginia police tied the murder

to Stevens, a local crabber on that same river. A jury convicted Stevens of first-degree

murder and abduction with intent to defile. The Court of Appeals of Virginia affirmed the

jury’s verdict, and the Supreme Court of Virginia declined to hear Stevens’s appeal.

       Having exhausted his options for a direct appeal, Stevens sought state habeas relief

based on the prosecution’s improper closing argument and failure to disclose exculpatory
                                               2
evidence. The state court rejected this application. And the Virginia Court of Appeals

denied Stevens’s appeal as untimely.

       Turning next to federal court, Stevens filed his first application for federal habeas

relief. The district court denied his application, and a panel of the Fourth Circuit dismissed

Stevens’s appeal for having no merit. Stevens v. Greene, 991 F.2d 791 (4th Cir. 1993)

(unpublished).

       Over twenty years later in 2016, Stevens returned to state court and filed another

application for state habeas relief. Only three days after filing, law enforcement authorities

informed Stevens’s counsel that they had newly discovered a “box of materials.” This box,

not previously disclosed, contains the evidence Stevens claims he has been requesting for

decades. And this evidence, according to Stevens, shows his innocence and undermines

his convictions. Based on these materials, Stevens amended his second state habeas

application.

       Not long after the Commonwealth found the box of materials, Stevens was granted

parole. After he was released from prison, Stevens continued to seek habeas relief in state

court. 1 And for a second time, the state court denied Stevens’s application for habeas relief.

Stevens’s appeal of that denial was again rejected by the Supreme Court of Virginia.




       1
         Although an applicant must be “in custody” to seek federal habeas relief, 28 U.S.C.
§ 2254(a), the Supreme Court determined that a parolee satisfies this requirement when
“the custody and control” of a parole authority “involves significant restraints on a
petitioner’s liberty.” Jones v. Cunningham, 371 U.S. 236, 242 (1963); see also Wilson v.
Flaherty, 689 F.3d 332, 336 (4th Cir. 2012). As with other potential issues, we leave this
question for the district court.
                                              3
       Stevens now comes to us, seeking authorization under 28 U.S.C. § 2244 to file a

successive § 2254 application for federal habeas relief. In his proposed application,

Stevens presents three claims:

       1.     The Commonwealth of Virginia knowingly presented false testimony
              from Dr. John Boon about how the victim’s body may have moved in
              the Rappahannock River, and the state suppressed evidence showing
              the testimony was false.

       2.     The Commonwealth knowingly presented false testimony from Earl
              Smith that Stevens was late picking him up to pull crab pots the
              morning after the murder, and the state suppressed evidence showing
              the testimony was false.

       3.     The Commonwealth withheld evidence that supports Stevens’s
              innocence.

We ordered oral argument on the motion and now authorize Stevens’s application.

                                            II.

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104-132, 110 Stat. 1214, defines federal courts’ limited authority to review state court

convictions. We may grant a writ of habeas corpus and release a prisoner from state

custody only in exceptional circumstances. See 28 U.S.C. § 2254; Richardson v. Branker,

668 F.3d 128, 138 (4th Cir. 2012).

       This authority entitles every state prisoner to one federal habeas challenge. 28

U.S.C. § 2254(a). But not more than one. For any successive federal habeas application,

AEDPA requires a prisoner to meet strict procedural and substantive gate-keeping

requirements before federal courts can reach the merits of that successive application.

Panetti v. Quarterman, 551 U.S. 930, 942–47 (2007).


                                             4
       The first gate-keeping provision for successive applications is § 2244(b)(3)’s pre-

filing authorization requirement: A successive applicant must “move in the appropriate

court of appeals for an order authorizing the district court to consider the application.” 28

U.S.C. § 2244(b)(3)(A); see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).

The court of appeals may grant this authorization only if the applicant has made a prima

facie showing that his claim (1) was not presented in a prior federal habeas application and

(2) falls within one of the two narrow paths set forth in § 2244(b)(2) to challenge his

conviction. 28 U.S.C. §§ 2244(b)(2), (b)(3).

       The first path, provided in § 2244(b)(2)(A), requires that a claim rely on a new and

retroactive constitutional rule that was previously unavailable. The second path, set forth

in § 2244(b)(2)(B), demands that “(i) the factual predicate of the claim could not have been

discovered previously through the exercise of due diligence; and (ii) the facts underlying

the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense.”

       Stevens chose the second path. To obtain authorization, Stevens relies on new

factual predicates to satisfy § 2244(b)(2)(B). At this stage, he need not convince us that he

will ultimately satisfy this provision’s strict dictates. All he must do is make a prima facie




                                              5
showing that he can do so. See In re Hubbard, 825 F.3d 225, 229, 231 (4th Cir. 2016); In

re Williams, 330 F.3d 277, 281–82 (4th Cir. 2003). 2

      To make this prima facie showing, Stevens relies on the “box of materials” first

disclosed to him in October 2016. He contends that he could not have discovered the

evidence in the box through the exercise of due diligence. And he contends that this

evidence provides the factual predicate for the three claims he now seeks to raise. First,

Stevens argues that new evidence in an undisclosed FBI report shows that the

Commonwealth presented false testimony from Dr. Boone about how the victim’s body

may have moved in the Rappahannock River, see Napue v. Illinois, 360 U.S. 264 (1959),

and that it suppressed the exculpatory FBI evidence that undermines that testimony, see

Brady v. Maryland, 373 U.S. 83 (1963). Second, Stevens argues that new police records

addressing Earl Smith’s statements reveal that the Commonwealth presented false

testimony from Smith about Stevens’s routine the morning after the murder, see Napue,

360 U.S. 264, and that it suppressed the exculpatory information from Smith that

undermines that testimony as well, see Brady, 373 U.S. 83. And third, Stevens alleges that

the Commonwealth suppressed at least seven pieces of exculpatory evidence found in the

“box of materials.” See id.




      2
         Clearing this threshold is only Stevens’s first step on a narrow path to relief.
Before the district court may review the merits of a successive application, it must
determine that the applicant actually “satisfies the requirements of” § 2244(b). 28 U.S.C.
§ 2244(b)(4); see also Winestock, 340 F.3d at 205 (“When the application is thereafter
submitted to the district court, that court must examine each claim and dismiss those that
are barred under § 2244(b) or § 2255.”).
                                            6
       Based on the record and arguments before us, we hold that Stevens has made a prima

facie showing that his application satisfies § 2244(b)(2)(B)’s requirements. We therefore

grant him authorization to file a successive habeas application in the district court. At this

stage in the proceedings, we may not plod along any further. See In re Williams, 330 F.3d

277, 281−82 (4th Cir. 2003); cf. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (noting

that the threshold decision to grant a certificate of appealability under 28 U.S.C. § 2253(c)

forbids full consideration of the factual or legal bases adduced in support of the claims).

                               *              *             *

       In AEDPA, Congress enacted rigorous substantive and procedural limitations that

prevent the federal courts from unduly disrupting state convictions. And for successive

habeas applications, Congress erected even higher hurdles. We have often explained that

these limits ensure the proper “respect due to state courts in our federal system.” Miller-

El, 537 U.S. at 340.

       But AEDPA also highlights the central role of the state executive. By limiting the

power of the federal courts, AEDPA shifts the focus to those actors who possess the

ultimate discretion to prosecute, pardon, and preserve convictions. And, consistent with

this great power, we expect executive actors to wield their authority in a manner consistent

with our finest values and traditions. See Robert H. Jackson, The Federal Prosecutor,

Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940);

Merritt v. Commonwealth, 820 S.E.2d 379, 383 n.6 (Va. Ct. App. 2018) (quoting Berger

v. United States, 295 U.S. 78, 88 (1935)).



                                              7
       Although we often think of that responsibility in connection with an active

prosecution, it applies with just as much force when addressing contested convictions.

Since the beginning of our Republic, “in most, if not all, of the states, the executives have

by their respective constitutions, the right of pardoning.” V DEBATES ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 208 (J. Elliot ed., 2d ed., 1881) (remarks of Madison, June

19, 1787). Concentrating post-conviction powers in the executive reflects the hope that

“the sense of responsibility is always strongest, in proportion as it is undivided.” THE

FEDERALIST No. 74, at 446 (Hamilton) (C. Rossiter ed., 1961); id. (“[t]he reflection that

the fate of a fellow-creature depended on [the executive’s] sole fiat, would naturally inspire

scrupulousness and caution”). And so, the executive’s power and responsibility both

before and after conviction remain fundamental in our system of divided powers.

       Still, AEDPA does create a limited role for us to review state convictions. And, at

this stage, we find that Stevens has made the prima facie showing required to clear

AEDPA’s first hurdle. So we authorize him to file his successive habeas application in the

district court. What happens next is for the district court—and the state executive—to

determine.

                                                                       MOTION GRANTED




                                              8
THACKER, Circuit Judge, concurring:

       Though I concur in the majority opinion, I write separately to explain in more detail

why, in my view, Emerson Stevens satisfies the prima facie standard set forth in 28 U.S.C.

§ 2244 to obtain authorization to file his successive § 2254 application.

       As the majority explains, Stevens makes three claims based on newly discovered

evidence:

       1.     The [prosecution] knowingly presented false testimony from
              Dr. John Boon about how the victim’s body may have moved
              in the Rappahannock River, and the state suppressed evidence
              showing the testimony was false.

       2.     The [prosecution] knowingly presented false testimony from
              Earl Smith that Stevens was late picking him up to pull crab
              pots the morning after the murder, and the state suppressed
              evidence showing the testimony was false.

       3.     The [prosecution] withheld evidence that supports Stevens’s
              innocence.

Maj. Op. at 4.

       Though Stevens will ultimately have to satisfy all of the requirements in § 2244 and

§ 2254 in order to succeed on his successive habeas, our review for purposes of granting

authorization only requires Stevens to make a prima facie showing of the “three essential

components” of § 2244(b)(2)(B).

              First, the claim must rely on a ‘factual predicate [that] could
              not have been discovered previously through the exercise of
              due diligence.’ 28 U.S.C.A. § 2244(b)(2)(B)(i). Second, the
              claim must describe constitutional error.             See id.
              § 2244(b)(2)(B)(ii). Third, the newly discovered facts upon
              which the claim is based, when viewed in conjunction with ‘the



                                             9
              evidence as a whole,’ 1 must ‘be sufficient to establish by clear
              and convincing evidence that, but for constitutional error, no
              reasonable factfinder would have found the applicant guilty of
              the underlying offense.’ Id.

In re Williams, 330 F.3d 277, 282 (4th Cir. 2003) (alteration in original).

       I agree entirely with the majority view that Stevens has made a prima facie showing

that the contents of the October 2016 box of documents, which form the basis of his three

claims, were not previously available to him. However, given the facts of this case, I find

it important to fully address the second and third requirements -- constitutional error and

establishing that, in light of the “evidence as a whole,” no reasonable factfinder would have

found Stevens guilty.

                                             I.

                                             A.

       In his first claim of constitutional error, Stevens argues the prosecution knowingly

presented false testimony from Dr. John Boon about how the victim’s body may have

moved in the Rappahannock River. Dr. John Boon, a marine scientist, testified for the

prosecution that it was possible for a weighed down body to travel ten miles upstream in

four days in the Rappahannock River system. Though Dr. Boon did not testify that this

was possible on the specific days in question, his testimony was essential to the


1
  As we explained in In re Williams, “[a]lthough § 2244(b)(2)(B)(ii) requires us to consider
‘the evidence as a whole,’ we will rarely have the full trial record before us. . . . In most
cases, therefore, we will be constrained to rely on the description of the trial record
provided by the [authorization] motion.” 330 F.3d at 282 n.2 (citing In re Boshears, 110
F.3d 1538, 1541 & n. 1 (11th Cir. 1997) (stating that factual allegations in the authorization
motion should be accepted as true unless “conclusively foreclose[d]” by the record)).

                                             10
prosecution’s theory of the case because on the morning the victim’s body must have been

put into the water, Stevens’s boat had been seen docked ten miles downstream from where

the body was ultimately found.

       Critically, when Stevens discovered the FBI report in the October 2016 box of

materials, he learned that the FBI had considered how far it was possible for the body to

have traveled on the relevant dates. The FBI Report concluded that on those days,

“[b]ecause of the tidal action and currents. . . it is currently estimated that the body . . . was

dumped within 500 to 600 yards of where it was eventually located.” J.A. 260. This

conclusion is at odds with the testimony of Dr. Boon.

       The Supreme Court has held “knowingly us[ing] false evidence, including false

testimony, to obtain a tainted conviction” is a due process violation. Naupe v. People of

State of Ill., 360 U.S. 264, 269 (1959); see also United States v. Basham, 789 F.3d 358,

376 (4th Cir. 2015) (“[T]he Due Process Clause obliges the government not [to] use false

evidence, including false testimony.” (internal quotation marks omitted)). And we have

held “[e]vidence may be false either because it is perjured, or, though not itself factually

inaccurate, because it creates a false impression of facts which are known not to be true.”

Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967). Here, Stevens asserts that Dr. Boon’s

testimony, though perhaps accurate on a macro level, was used by the prosecution to create

the false impression that the victim’s body could have traveled ten miles upstream on the

four days in question. And, because the FBI report had been turned over in full to the

Virginia State Police, the prosecution was responsible for being aware of its contents. In



                                               11
my view, these allegations are more than sufficient to make a prima facie showing of

constitutional error.

                                             B.

       Stevens’s second claim is that the prosecution knowingly presented false testimony

from Earl Smith. Smith was working with Stevens the week the victim disappeared and

testified that Stevens always picked him up for work around 6:00 a.m. However, Smith

testified that on the morning after the victim went missing, Stevens was an hour late. The

prosecution theorized that Stevens was late because he was disposing of the victim’s body

in the Rappahannock River. But on cross examination, Smith admitted that he could be

mistaken about which day Stevens was late. In fact, Stevens presented evidence that he

had been late a different morning that week because he had a doctor’s appointment.

       Though Smith’s testimony was impeached, the prosecution relied heavily on his

direct testimony during its closing argument, suggesting that Stevens was late because he

was disposing of the victim’s body. Yet again, based on evidence found in the October

2016 box, Stevens now claims the prosecution knew Smith’s initial testimony was false,

failed to correct it, and used it to “create[] a false impression of facts which are known not

to be true.” See Hamric, 386 F.2d at 394. Specifically, the FBI report, which was included

in the October 2016 box, contains the investigation notes of the lead detective, Virginia

State Police Special Agent David Riley, when he interviewed Smith in September 1985.

Detective Riley reported then that Smith stated Stevens “picked him up the next morning

(Friday, 8/23/85) to go crabbing at the usual time of 5:30 - 6:00 a.m.” J.A. 281.



                                             12
       Because it is a constitutional violation to allow false testimony to go uncorrected,

Naupe, 360 U.S. at 269, and to knowingly use the testimony to create a false impression of

a material fact, Hamric, 386 F.2d at 394, Stevens’s claims create at least a prima facie

showing of constitutional error here as well.

                                              C.

       Finally, Stevens’s third claim is that the prosecution committed numerous violations

of Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence. Based

on the FBI report and other documents contained in the October 2016 box, Stevens claims

there are at least seven instances of facts that are exculpatory because they identify other

viable suspects, would have provided impeachment evidence, and/or provided alternative

theories that undermine the Commonwealth’s theory. None of these materials were

disclosed to Stevens prior to the disclosure of the October 2016 box.

       Pursuant to Brady, “the suppression by the prosecution of evidence favorable to an

accused . . . violates due process where the evidence is material either to guilt or to

punishment.” 373 U.S. at 87. Brady extends to impeachment evidence, United States v.

Bagley, 473 U.S. 667, 676 (1985), and to the failure to disclose favorable evidence that is

only known to the police, see Kyles v. Whitley, 514 U.S. 419, 437–38 (1995).

       Evidence is material if it would reasonably “put the whole case in such a different

light as to undermine confidence in the verdict,” id. at 435, and materiality must be assessed

collectively, see id. at 436 n.10. The exculpatory facts Stevens identifies are both favorable

to him and may be used collectively to undermine confidence in the verdict. Though the

district court will need to determine if the effect of these facts is significant enough, at this
                                               13
stage Stevens has made a prima facie showing that his claim describes a constitutional

violation.

                                              II.

       Pursuant to 28 U.S.C. § 2244(b)(2)(B)(ii), the third “essential component” of

Stevens’s claim is a prima facie showing that “the newly discovered facts . . . when viewed

in conjunction with ‘the evidence as a whole,’” are “sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.” In re Williams, 330 F.3d 277, 282

(4th Cir. 2003).

       The evidence as a whole is important here because it is “all the evidence put before

the court at the time of its § 2244(b)(2)(B)(ii) . . . evaluation.” United States v. MacDonald,

641 F.3d 596, 610 (4th Cir. 2011). The Court must make “its § 2244(b)(2)(B)(ii) . . .

determination—unbounded ‘by the rules of admissibility that would govern at trial’—

based on ‘all the evidence, including that alleged to have been illegally admitted [and that]

tenably claimed to have been wrongly excluded or to have become available only after the

trial.’” Id. at 612 (alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 327–28

(1995)).     In other words, “the court must consider all the evidence, old and new,

incriminating and exculpatory, without regard to whether it would necessarily be admitted

under [evidentiary rules].” Id. (internal quotation marks omitted) (alteration in original).




                                              14
Thus, the ‘evidence as a whole’ includes all new developments in Stevens’s case,

regardless of whether those developments are part of his § 2254 claims.

      From my vantage point, the evidence as a whole overwhelmingly supports a

conclusion that no reasonable jury would have convicted Stevens. In addition to the new

facts discussed above, there have been developments in several other key respects.

      First, when the victim’s body was discovered, there were several wounds on her

back. A local Medical Examiner (“ME”) initially determined the cause of death was

asphyxiation and that the wounds were caused by the body scraping material in the water

after death. The Chief ME initially signed off on these conclusions. But, curiously, after

speaking with law enforcement about the case, the Chief ME changed course and

determined that the wounds were caused by a cutting instrument. See id. The Chief ME

then added “cutting wounds” as a second cause of death.

      Then, during the trial, the prosecution presented a theory that the wounds could have

been caused by a Wildcat Skinner knife. A crime scene technician testified that he had

found a knife sheath in Stevens’s truck that was of the type that could have contained a

Wildcat Skinner. Interestingly, however, this sheath was not collected as evidence or

presented at trial. The Chief ME testified that a Wildcat Skinner could have caused the

wounds, and a friend of Stevens’s testified that Stevens owned a similar knife.

Significantly, however, the Chief ME has since reviewed her own findings and has

admitted in a sworn affidavit that the wounds are not consistent with knife or cutting

wounds but are instead consistent with a “post-mortem encounter with a boat propeller.”

J.A. 230–32.
                                           15
       Next, the prosecution presented only one piece of physical evidence at trial to

connect Stevens to the murder -- a single hair found on Stevens’s jacket. The hair was

compared to the victim’s hair using microscopic hair comparison analysis, and an expert

for the prosecution testified that the two were microscopically alike in all identifiable

characteristics. But microscopic hair comparison analysis is now considered scientifically

invalid and unreliable. Virginia recognized this in 2012 when it granted an order to retest

the hair in evidence using modern science. However, the hair was too old to be retested.

       Finally, Clyde Dunaway, a witness who testified against Stevens and placed his

truck in the vicinity of the victim’s house, has since pled guilty to obstruction of justice for

providing false testimony during the trial. Specifically, during his testimony Dunaway

denied having asked the prosecution about potential reward money for supplying

information in the case. In fact, Dunaway had inquired about reward money on numerous

occasions.

       Based on each of these new developments -- combined with the new facts Stevens

discovered in the October 2016 box -- I simply cannot see how any reasonable factfinder

could convict in this case. There is now no reliable physical evidence, the prosecution’s

theory that Stevens’s knife caused the back wounds is no longer viable, the jury could

seriously question at least one prosecution witnesses credibility based on his false

testimony, and the FBI report at least makes the prosecution’s theory that the body traveled

ten miles much more difficult to believe.

       At a minimum, Stevens has made a prima facie showing that, based on the evidence

as a whole, no reasonable jury would have convicted him of this crime.
                                              16
                                          III.

      Though I would go farther than the majority by way of explanation, I concur for all

of the foregoing reasons.




                                          17
