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Landrigan's Bogus "Innocence" Claim

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Along with the brouhaha over where the State of Arizona gets its thiopental (noted in this post and this NYT story), attorneys for two-time murderer Jeffrey Landrigan also want to file a successive habeas petition using DNA evidence and invoking the "actual innocence" exception for successive petitions, 28 U.S.C. §2244(b)(2)(B).  USCA9 has this page with the pleadings.

The problem is that the DNA evidence does not show Landrigan was innocent or even that he is ineligible for the death penalty (if that mattered). It only shows the involvement of an accomplice, and Landigan's own statement of the crime is sufficient to establish both guilt and eligibility.  The statement is quoted after the jump.
The State's response quotes this statement from the defense's own mental health expert back in 1990, giving Landrigan's own version of the events.

[Landrigan] states that he did speed every day for the 42 days from the time he escaped from the Oklahoma prison to the time he was taken into custody in Phoenix. He goes on to admit that he only slept 14 days out of the 42 he was out, which could not help but have had an effect on his behavior at the time of the commission of the present murder charge. Finally, he admits that he "snorted" amphetamine about one and one-half hours prior to the offense andestimates that he was at the "peak" of the drug effect at the time of the offense itself.

It would appear that the trigger for [Landrigan's] hitting the victim, prior to his crime partner  choking him to death, was the victim making homosexual advances to him and ultimately touching him and rubbing his neck. [Landrigan] admits that the next thing that happened was that he had the thought to just subdue the victim, cut off his unwelcome homosexual advances, and let his partner in through the front door so that they could carry out the original plan to simply rob the victim--which he did. [Landrigan] admits to one previous homosexual experience in prison in which another inmate paid him to submit to oral sex. Afterwards [Landrigan] had a negative reaction as if he "felt dirty, not a right feeling." He admitted that the reaction continued to be with him, "bothering me for a while."

According to [Landrigan], after he let his partner in, the partner began kicking the victim which galvanized the victim to get up and begin struggling with the partner, even starting to get the upper hand. [Landrigan] volunteers that he then put the victim in a head lock, and his partner hit him until he was unconscious. [Landrigan] went back to robbing the place, his original intention, while the partner took an electric cord and began to choke him to death. Afterwards, [Landrigan] and his partner left the apartment, having obtained a payroll check and a small amount of cash.
According to Landrigan's own statement, he was a participant in a robbery in which the victim was killed.  That is sufficient to make him guilty of the "underlying offense," §2244(b)(2)(B)(ii), murder, and therefore he is ineligible to file a successive habeas petition. Congress has not permitted successive petitions for claims that go only to penalty.

But even if the statute did permit successive petitions for "eligibility" claims, Landrigan does not have a prima facie case that he has such a claim, which is the criterion for permission to file.  See §2244(b)((3)(C).  His own statement conclusively establishes "major participation in the felony committed, combined with reckless indifference to human life," Tison v. Arizona, 481 U.S. 137, 158 (1987), which is the requirement for eligibility.

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