from the Iowa District Court for Polk County, Paul D. Scott,
Miller appeals the dismissal of his application for
C. Miller, Fort Madison, pro se appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee State.
Considered by Mullins, P.J., Bower, J., and Carr, S.J.
Miller appeals the dismissal of his application for
postconviction relief (PCR). He asserts he has raised a
proper gateway claim of actual innocence to survive summary
judgment. We affirm the dismissal of his application for PCR.
November 2007, Miller was convicted of murder in the first
degree for the death of Jamey Brucker. This court affirmed
his conviction on direct appeal. State v. Miller,
No. 07-2051, 2009 WL 249646, at *4 (Iowa Ct. App. Feb. 4,
2009). He filed a first application for PCR, which the
district court denied and dismissed, and we affirmed the
district court. Miller v. State, No. 12-0826, 2014
WL 1746572, at *2 (Iowa Ct. App. Apr. 30, 2014). He filed a
second application for PCR, which the district court again
denied and dismissed; he did not appeal this decision.
March 2, 2017, Miller filed this, his third, application for
PCR. He asserted actual innocence related to new evidence and
other claims. The district court granted summary judgment in
favor of the State and dismissed his application. He now
appeals regarding his actual innocence claim.
normally review postconviction proceedings for errors at
law." Castro v. State, 795 N.W.2d 789, 792
(Iowa 2011). "In determining whether summary judgment is
warranted, the moving party has the burden of proving the
material facts are undisputed. We examine the facts in the
light most favorable to the nonmoving party."
Id. (citation omitted).
seeks PCR under a gateway claim of actual innocence. Iowa
recognizes freestanding claims of actual innocence, in which
"the applicant must show by clear and convincing
evidence that, despite the evidence of guilt supporting the
conviction, no reasonable fact finder could convict the
applicant of the crimes for which the sentencing court found
the applicant guilty in light of all the evidence, including
the newly discovered evidence." Schmidt v.
State, 909 N.W.2d 778, 797 (Iowa 2018). Under a
federally-recognized gateway claim of actual innocence, the
petitioner "must demonstrate that in light of all the
evidence, including the new evidence, 'it is more likely
than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.'" Id. at
791 (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). To assert a gateway claim of actual innocence, the
petitioner must make an initial showing of an underlying
constitutional violation. Id.
Iowa Supreme Court has not adopted gateway claims of actual
innocence, and we decline to do so. Even if we were to
analyze Miller's claim as a gateway claim of actual
innocence, his PCR action would still fail. Federal courts
use a two-part test to review gateway claims of actual
innocence. Amrine v. Bowersox, 238 F.3d 1023, 1029
(8th Cir. 2001). Under the first part, "allegations of
constitutional error must be supported with new reliable
evidence." Id. (citing Schlup, 513
U.S. at 327-28). However, Miller has not claimed the
necessary constitutional error. Schlup, 513 U.S. at
316 (explaining a petitioner's "evidence of
innocence need carry less of a burden" in a gateway
claim than a freestanding claim due to the underlying
constitutional error at trial); see also Schmidt,
909 N.W.2d at 797. While Miller claims that imprisoning an
innocent person is itself a constitutional violation, a
gateway "claim of innocence does not by itself provide a
basis for relief." Schlup, 513 U.S. at 315.
Furthermore, he must introduce "new reliable
evidence" to support his claim of constitutional error.
Id. at 324. We note that under Amrine,
"evidence is new only if it was not available at trial
and could not have been discovered earlier through the
exercise of due diligence." 238 F.3d at 1028 (quoting
Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir.
1997)). However, most other federal circuits have found
evidence is new if it was merely "not presented at
trial." Reeves v. Fayette SCI, 897 F.3d 154,
161-62 (3d Cir. 2018). For his PCR claim, Miller provided
emails from Nicole Tyler, who claims to know a friend or
relative of Brucker. He also provides an affidavit from James
Dixon, who claims he encountered someone matching
Brucker's description a few months before his death.
While Miller clearly did not present this evidence at his
trial, we doubt it satisfies the more demanding "not
available at trial" standard under Amrine, 238
F.3d at 1028.
we presume Miller has claimed constitutional error that is
supported by new reliable evidence, he must also
"establish 'that it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence.'" Amrine, 238 F.3d at 1029
(quoting Schlup, 513 U.S. at 327). The
"Schlup standard is demanding and permits
review only in the 'extraordinary' case."
House v. Bell, 547 U.S. 518, 538 (2006) (quoting
Schlup, 513 U.S. at 327). This second part of the
test requires consideration of "'all the
evidence,' old and new, incriminating and exculpatory,
without regard to whether it would necessarily be admitted
under 'rules of admissibility that would govern at
trial.'" Id. (quoting Schlup, 513
U.S. at 327-28). Tyler's emails indicate Brucker
"was in a dark place" before his death, and
Dixon's affidavit indicates Brucker "was manic, up
and down between happy and sad" and had "overdosed
a lot in the past." To the extent Miller argues Brucker
wanted to die, Brucker's allegedly "suicidal intent
is no defense" to murder. See State v. Couser,
567 N.W.2d 657, 661 (Iowa 1997). Dixon's affidavit also
describes Brucker aggressively pursuing a sexual encounter
with him, which ended with Dixon "grab[bing] his hand
out of my pants and actually kick[ing] him away." Miller
asserts this affidavit enforces his account that Brucker had
aggressively pursued a sexual encounter with him and
"forced his death with an 'unwanted sexual
advance.'" In Miller's direct appeal, we
summarized the evidence supporting his conviction and the
rejection of his self-defense claim. Miller, 2009 WL
249646, at *4. In addition to the fact "Miller openly
admitted to killing Brucker," evidence presented at
that Miller routinely drove his vehicle while under the
influence of marijuana and alcohol; that he enjoyed firing
his shotgun within city limits, often near the interstate;
that he punched Brucker in the face when Brucker tried to
touch him; that he put a bladed martial arts weapon to
Brucker's throat when Brucker was too loud; that he
fantasized about slitting someone's throat from ear to
ear; that for several weeks he had craved killing another
human being; that he was not remorseful for killing Brucker;
that he had stolen Brucker's cash and cell phone; that he
had destroyed incriminating evidence and attempted to flee