Carriger

INTRODUCTION

Paris Hoyt Carriger was convicted and sentenced to death for the brutal murder of Robert Shaw in , 1978. Shaw was beaten on the head with a skillet and strangled with his own necktie’ during a robbery of his Phoenix jewelry store. The chief prosecution witness was Robert Dunbar; Carriger’s defense was that Dunbar committed the murder.

After the trial and unsuccessful appeal, Carriger learned of documents in the state’s records, never disclosed before trial, indicating that Dunbar was a known habitual liar accustomed to blaming others for his own crimes. In our first en banc opinion in the ease, we held that Carriger’s challenge to his counsel’s failure to investigate Dunbar’s background came too late. Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992) (en banc).

After Carriger’s first federal habeas corpus petition had been filed, Dunbar actually confessed in open court that he was the murderer and that Carriger was innocent. Despite the passage of a decade since Dunbar’s sworn confession, and despite numerous attempts by Carriger to raise the issue, we have not yet considered on the merits the effect of Dunbar’s sworn confession on Carri-ger’s continued…

with whom Judges FARRIS, FERNANDEZ, T.G. NELSON and KLEINFELD join, dissenting.

What makes this a tough case is that Robert Dunbar, the prosecution’s key witness, turns out to have been a big liar. Had the jurors seen Dunbar as we now see him, they would not have believed a thing he said. It is therefore surprising that my colleagues in the majority are able to say with confidence that one of Dunbar’s many stories accurately describes what happened the day Robert Shaw was killed. And yet, it is this finding-that Dunbar told the truth when he said that he and his wife killed Shaw-which unlocks the Schlup gateway through which Carriger must pass before we can consider his abusive Brady claim.'

Dunbar’s fairy tale is not the stuff of which Schlup claims are made. The Supreme Court recognized in Schlup that “a substantial .claim that constitutional error has caused the conviction of an innocent person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). To make out such a claim, a petitioner must come forward with reliable new evidence of his innocence. A repudiated recantation can never be reliable enough to satisfy Schlup . But even if it…