Baldwin

Opinion by Judge Reinhardt; Dissent by Judge Bybee

I.

This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into not testifying on his behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites. Roger Smith is currently serving a life sentence with a 30-year minimum term. The district court dismissed on procedural grounds his petition for a writ of habeas corpus without reaching the merits of his claims. It found that he had not exhausted those claims in state court and that, because state procedural rules barred him from doing so now, the claims were procedurally defaulted. Like the district court, we do not consider the merits of his case. All we decide is that, under an exception to the applicable procedural rules, Smith may pursue his federal constitutional claims in federal court. Both the facts and the law are complex, however, as they tend to be these days in almost all habeas corpus cases.

Smith argues on this appeal that his petition has not been procedurally defaulted and…

dissenting.

Roger Smith and Jacob Edmonds needed money. Bad. For an Anthrax concert. So they burglarized the Konzelmans’ garage to obtain tools. They then put bandannas on their faces to disguise themselves and made up code names. Smith took a rope into the house. One of them took a three-foot-long crowbar as well and savagely beat the Konzelmans with it, killing Mr. Konzelman and severely injuring Mrs. Konzelman. When Edmonds entered into a plea agreement and agreed to testify against Smith, Smith pled no contest to felony murder. Edmonds now claims that Smith did not kill Mr. Konzelman, and the majority, willing to believe him, thinks that Smith is innocent. The problem is that Smith was convicted of felony murder. Even accepting every word of Edmonds’s latest story as true— and there is good reason not to — it is entirely irrelevant that “Edmonds, and not Smith, was the killer,” or that “Smith did not kill Konzelman.” Maj. Op. at 814. Nonetheless, the majority, reviewing the record afresh and construing all evidence in favor of Smith, concludes that Smith is actually innocent because the evidence “would more likely than not lead any reasonable juror to believe that Smith was…

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER PAUL SMITH,  No. 04-35253 Petitioner-Appellant, v.  D.C. No.

CV-98-00059-OMP

GEORGE H. BALDWIN,

OPINION

Respondent-Appellee.  Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior Judge, Presiding

Argued and Submitted March 9, 2005—Portland, Oregon

Filed October 24, 2006

Before: Procter Hug, Jr., Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Bybee

17725 SMITH v. BALDWIN 17729

COUNSEL

Thomas J. Hester, Office of the Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Hardy Myers, Attorney General for the State of Oregon, Mary H. Williams, Solicitor General (On the Briefs); Kathleen Cegla, Assistant Attorney General, Salem, Oregon (Argued), for the respondent-appellee. 17730 SMITH v. BALDWIN

OPINION

REINHARDT, Circuit Judge:

I.

This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into…