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49 F.3d 440

Docket No. 94-2301.

Barrington v. Norris

Eighth Circuit Court of Appeals

Submitted Dec. 16, 1994.

Decided March 7, 1995.

Eighth Circuit Court of Appeals · decided 1995-03-07

Cited by 10 later decisions — most recently September 1997

7 federal appellate · 1 district ·

2 counsel of record

Key passage — most relied on by later courts

“a sufficient showing of actual innocence to warrant a hearing on the issue”

quoted by 1 later decision, including Bannister v. Delo

Applies 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Murray v. Carrier · Schlup v. Delo

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1995-03-07

View the full empirical analysis of this case →

¶1*441Garry J. Corrothers, Little Rock, AR, for appellant.

¶2Joseph V. Svoboda, Little Rock, AR, for appellee.

¶3Before MAGILL, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

¶4PER CURIAM.

¶5Cleta M. Barrington appeals the district court’s1 denial of her 28 U.S.C. § 2254 petition. We affirm.

¶6Barrington pleaded guilty p to possessing with intent to manufacture or deliver methamphetamine, and to possessing drug paraphernalia, in violation of Ark.Code Ann. §§ 5-64-401 and 5-64-403. She filed this habeas petition, claiming that her counsel was ineffective and that her guilty plea was involuntary. The State argued Barrington’s claims were proeedurally barred. Barring-ton responded that her default should be excused because she was actually innocent. Without conducting a hearing, the magistrate judge recommended denying relief. Bar-rington filed objections in which she identified a witness and specified what his exculpatory testimony would be. The district court denied relief. On appeal, Barrington argues she can demonstrate her actual innocence so that the merits of her section 2254 petition can be heard, and she requests a remand to the district court with directions to hold a hearing on the issue.

¶7To invoke the actual-innocence exception to the procedural default rule, the habeas petitioner must “show that it is more likely than not that ‘no reasonable juror’ would have convicted [her].” Schlup v. Delo, — U.S.-,-, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (interpreting standard of proof established by Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986)). In applying this standard to a request for an evidentiary hearing on actual innocence, “the District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt.... [T]he court may consider how the timing of the submission and the likely credibility of the affiants bear on the *442probable reliability of that evidence.” Schlup, — U.S. at-, 115 S.Ct. at 869. Under these criteria, we do not believe Barrington made a sufficient showing of actual innocence to warrant a hearing on the issue. Considering her failure to meet this threshold showing, we conclude the district court properly declined to reach the merits of her petition.

¶8Accordingly, we affirm.

¶10MORRIS SHEPPARD ARNOLD, Circuit Judge,

¶11dissenting.

¶12In light of the testimony Barrington asserts she can present, I believe she is entitled to an evidentiary hearing on the subject of actual innocence, and I would remand this ease for that purpose.

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