Quintin Orrin Morris v. RICK HILL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUINTIN ORRIN MORRIS,
Petitioner - Appellant,
v.
RICK HILL, Warden,
Respondent - Appellee.
No. 13-55143
D.C. No. 2:12-cv-06953-AHM-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Alvin Howard Matz, District Judge, Presiding
Argued and Submitted March 3, 2015
Pasadena California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Quintin Morris appeals from the district court’s order denying his petition
for a writ of habeas corpus and dismissing it without prejudice. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
FILED
MAR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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The district court dismissed Morris’ petition as a “second or successive”
habeas petition filed without the authorization of the court of appeals, as required
by the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. §
2244(b)(3)(A). Morris does not dispute that his petition failed to satisfy the
procedural requirements of 28 U.S.C. § 2244(b)(3)(A). Rather, he contends that
because he alleges a freestanding actual innocence claim, AEDPA’s restrictions on
second or successive petitions are unconstitutional as applied to him.
Neither the Supreme Court nor the Ninth Circuit has determined whether a
freestanding claim of actual innocence is cognizable on federal habeas review,
although each court has assumed without deciding that such a claim is viable. See
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) (“We have not resolved
whether a prisoner may be entitled to habeas relief based on a freestanding claim of
actual innocence.”); Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming
without deciding that the execution of an innocent defendant would be
unconstitutional); accord id. at 419 (O’Connor, J., concurring); id. at 429 (White,
J., concurring); see also Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (“We
have not resolved whether a freestanding actual innocence claim is cognizable in a
federal habeas corpus proceeding in the non-capital context, although we have
assumed that such a claim is viable.”).
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A showing for such a claim must be “extraordinarily high” and “truly
persuasive.” Herrera, 506 U.S. at 417; accord id. at 426 (O’Connor, J.,
concurring). We have said that, at a minimum, a petitioner “must go
beyond demonstrating doubt about his guilt, and must affirmatively prove that he is
probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en
banc) (citing Herrera, 506 U.S. at 442-44 (Blackmun, J., dissenting)); accord
Jones, 763 F.3d at 1246.
Here, we need not decide whether to recognize a freestanding actual
innocence claim, because even assuming that such a claim is cognizable in a non-
capital case, Morris has failed to satisfy this high standard. See Osborne v. Dist.
Atty’s’s Office for the Third Judicial Dist., 521 F.3d 1118, 1131 (9th Cir. 2008)
(“Herrera, House [v. Bell, 547 U.S. 518 (2006)], Carriger, and Jackson [v.
Calderon, 211 F.3d 1148 (9th Cir. 2000)] all support the practice of first resolving
whether a petitioner has made an adequate evidentiary showing of actual innocence
before reaching the constitutional question of whether freestanding innocence
claims are cognizable in habeas.”), rev’d on other grounds, 557 U.S. 52 (2009);
Jones, 763 F.3d at 1251.
To demonstrate his innocence, Morris primarily relies upon the confession
of Howard Holt, a convicted felon serving three life sentences, one of them without
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the possibility of parole, and a consecutive term of 68 years. While a credible
confession by the actual perpetrator may affirmatively demonstrate actual
innocence, see Carriger, 132 F.3d at 477, Holt’s confession is not sufficiently
credible. Holt has nothing to lose by confessing. See House, 547 U.S. at 552
(confessions by inmates have less probative value than confessions by
“eyewitnesses with no evident motive to lie”). Moreover, Holt’s testimony at the
evidentiary hearing is inconsistent with his prior declarations in an important
respect. See Carriger, 132 F.3d at 477 (confession by purported perpetrator did
not affirmatively prove petitioner was actually innocent due to contradictions in his
story).
Nor does Morris’ other new evidence adequately demonstrate his innocence.
The testimony of Claude Davis, Holt’s crime partner, that Holt committed the
crime is not sufficiently credible because his depositions are inconsistent with each
other and with Holt’s description of the route they took while driving away from
the crime scene. The testimony of Harlan Morgan, who was arrested with Morris,
that neither he nor Morris committed the crime does not sufficiently support
Morris’ claim because Morgan previously confessed to being an accessory after the
fact to Morris’ crime.
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For all of these reasons, we find that Morris has failed to meet the
“extraordinarily high” standard of “affirmatively prov[ing] that he is probably
innocent.” Accordingly, his petition must be denied. In reaching this conclusion,
we do not express any view as to whether Morris is actually innocent. We simply
conclude that he does not meet the daunting requirements specified in the cases
that are currently binding on us.
AFFIRMED.
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