                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1789
                               Filed May 15, 2019


ERIC CHRISTOPHER MILLER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Eric Miller appeals the dismissal of his application for postconviction relief.

AFFIRMED.




      Eric C. Miller, Fort Madison, pro se appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



      Considered by Mullins, P.J., Bower, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.

       Eric Miller appeals the dismissal of his application for postconviction relief

(PCR). He asserts he has raised a proper gateway claim of actual innocence to

survive summary judgment. We affirm the dismissal of his application for PCR.

       In November 2007, Miller was convicted of murder in the first degree for the

death of Jamey Brucker. This court affirmed his conviction on direct appeal. State

v. Miller, No. 07-2051, 2009 WL 249646, at *4 (Iowa Ct. App. Feb. 4, 2009). He

filed a first application for PCR, which the district court denied and dismissed, and

we affirmed the district court. Miller v. State, No. 12-0826, 2014 WL 1746572, at

*2 (Iowa Ct. App. Apr. 30, 2014). He filed a second application for PCR, which the

district court again denied and dismissed; he did not appeal this decision.

       On March 2, 2017, Miller filed this, his third, application for PCR. He

asserted actual innocence related to new evidence and other claims. The district

court granted summary judgment in favor of the State and dismissed his

application. He now appeals regarding his actual innocence claim.

       “We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). “In determining whether summary

judgment is warranted, the moving party has the burden of proving the material

facts are undisputed. We examine the facts in the light most favorable to the

nonmoving party.” Id. (citation omitted).

       Miller seeks PCR under a gateway claim of actual innocence.              Iowa

recognizes freestanding claims of actual innocence, in which “the applicant must

show by clear and convincing evidence that, despite the evidence of guilt

supporting the conviction, no reasonable fact finder could convict the applicant of
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the crimes for which the sentencing court found the applicant guilty in light of all

the evidence, including the newly discovered evidence.” Schmidt v. State, 909

N.W.2d 778, 797 (Iowa 2018). Under a federally-recognized gateway claim of

actual innocence, the petitioner “must demonstrate that in light of all the evidence,

including the new evidence, ‘it is more likely than not that no reasonable juror would

have found petitioner guilty beyond a reasonable doubt.’” Id. at 791 (quoting

Schlup v. Delo, 513 U.S. 298, 327 (1995)). To assert a gateway claim of actual

innocence, the petitioner must make an initial showing of an underlying

constitutional violation. Id.

       The Iowa Supreme Court has not adopted gateway claims of actual

innocence, and we decline to do so. Even if we were to analyze Miller’s claim as

a gateway claim of actual innocence, his PCR action would still fail. Federal courts

use a two-part test to review gateway claims of actual innocence. Amrine v.

Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001). Under the first part, “allegations

of constitutional error must be supported with new reliable evidence.” Id. (citing

Schlup, 513 U.S. at 327–28). However, Miller has not claimed the necessary

constitutional error. Schlup, 513 U.S. at 316 (explaining a petitioner’s “evidence

of innocence need carry less of a burden” in a gateway claim than a freestanding

claim due to the underlying constitutional error at trial); see also Schmidt, 909

N.W.2d at 797. While Miller claims that imprisoning an innocent person is itself a

constitutional violation, a gateway “claim of innocence does not by itself provide a

basis for relief.” Schlup, 513 U.S. at 315. Furthermore, he must introduce “new

reliable evidence” to support his claim of constitutional error. Id. at 324. We note

that under Amrine, “evidence is new only if it was not available at trial and could
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not have been discovered earlier through the exercise of due diligence.” 238 F.3d

at 1028 (quoting Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997)).

However, most other federal circuits have found evidence is new if it was merely

“not presented at trial.” Reeves v. Fayette SCI, 897 F.3d 154, 161–62 (3d Cir.

2018). For his PCR claim, Miller provided emails from Nicole Tyler, who claims to

know a friend or relative of Brucker. He also provides an affidavit from James

Dixon, who claims he encountered someone matching Brucker’s description a few

months before his death. While Miller clearly did not present this evidence at his

trial, we doubt it satisfies the more demanding “not available at trial” standard

under Amrine, 238 F.3d at 1028.

       Even if we presume Miller has claimed constitutional error that is supported

by new reliable evidence, he must also “establish ‘that it is more likely than not that

no reasonable juror would have convicted him in light of the new evidence.’”

Amrine, 238 F.3d at 1029 (quoting Schlup, 513 U.S. at 327). The “Schlup standard

is demanding and permits review only in the ‘extraordinary’ case.” House v. Bell,

547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327). This second part of

the test requires consideration of “‘all the evidence,’ old and new, incriminating and

exculpatory, without regard to whether it would necessarily be admitted under

‘rules of admissibility that would govern at trial.’” Id. (quoting Schlup, 513 U.S. at

327–28). Tyler’s emails indicate Brucker “was in a dark place” before his death,

and Dixon’s affidavit indicates Brucker “was manic, up and down between happy

and sad” and had “overdosed a lot in the past.” To the extent Miller argues Brucker

wanted to die, Brucker’s allegedly “suicidal intent is no defense” to murder. See

State v. Couser, 567 N.W.2d 657, 661 (Iowa 1997).              Dixon’s affidavit also
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describes Brucker aggressively pursuing a sexual encounter with him, which

ended with Dixon “grab[bing] his hand out of my pants and actually kick[ing] him

away.”     Miller asserts this affidavit enforces his account that Brucker had

aggressively pursued a sexual encounter with him and “forced his death with an

‘unwanted sexual advance.’”        In Miller’s direct appeal, we summarized the

evidence supporting his conviction and the rejection of his self-defense claim.

Miller, 2009 WL 249646, at *4. In addition to the fact “Miller openly admitted to

killing Brucker,” evidence presented at trial showed:

         that Miller routinely drove his vehicle while under the influence of
         marijuana and alcohol; that he enjoyed firing his shotgun within city
         limits, often near the interstate; that he punched Brucker in the face
         when Brucker tried to touch him; that he put a bladed martial arts
         weapon to Brucker’s throat when Brucker was too loud; that he
         fantasized about slitting someone’s throat from ear to ear; that for
         several weeks he had craved killing another human being; that he
         was not remorseful for killing Brucker; that he had stolen Brucker’s
         cash and cell phone; that he had destroyed incriminating evidence
         and attempted to flee after the murder, believing he could escape
         and possibly kill again; and that he had a dark side and enjoyed
         committing destructive acts that provided him with a thrill.

Id. at *3–4.     As we noted, “[t]he record overwhelmingly supports the jury’s

conviction of Miller for first-degree murder.” Id. at *3. Even taking the evidence in

the light most favorable to Miller, Dixon’s description of Brucker’s pursuit of a

sexual encounter with him does not make it “more likely than not that no

reasonable juror would have convicted [Miller] in light of the new evidence.” See

Amrine, 238 F.3d at 1029 (quoting Schlup, 513 U.S. at 327).

         Iowa does not recognize a gateway claim of actual innocence. Even if we

were to recognize a gateway claim, Miller has not shown a constitutional error at

trial that is supported with new reliable evidence to establish, more likely than not,
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no reasonable juror would have convicted him.        Therefore, the district court

properly granted summary judgment in favor of the State, and we affirm the district

court’s dismissal of his application for PCR.

       AFFIRMED.
