No.

IN THE SUPREME COURT OF THE UNITED STATES

IN RE CHRISTOPHER DUNN

PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2241

JUSTIN C. BONUS
Justin C. Bonus Attorney at Law
118-35 Queens Blvd, Suite 400
Forest Hills, NY 11375
347.920.0160
Justin.bonus@gmail.com

Counsel for Petitioner

 QUESTIONS PRESENTED

Acquitting the guilty and condemning the innocent— the LORD detests them
both.

Proverbs 17:15 (NIV Edition)

[T]he gravest manner of injustice that we know is the imprisonment of a

fellow human being for a crime that he or she did not commit.

People v. Hargrove, 162 A.D.3d 25 (N.Y. App. Div. 2d Dept. 2018).

During his post-conviction proceedings, Christopher Dunn proved that no

jury would have convicted him after the hearing court took testimony from

witnesses and heard and considered all the evidence both from the State and from

Dunn. This Court has yet to definitively hold that defendants have a right to

pursue freestanding actual innocence claims in a post-conviction setting. The closest

to such precedent came from In re Davis, 130 S. Ct. 1 (2009), when this Court held

that a United States District Court should “receive testimony and make findings of

fact as to whether evidence that could not have been obtained at the time of trial

clearly establishes petitioner’s innocence.” With this decision, this Court was

implying that if a petitioner “clearly establishes” his “innocence,” he or she is entitled

to relief.

Christopher Dunn has been in prison for over 30 years for a crime that he has

maintained that he did not commit. A judge in Missouri state court found that no

jury would convict Christopher Dunn with the evidence presented in Christopher’s

post-conviction proceedings, stating:

As was noted earlier, in the instant case new evidence has emerged, in
addition to the recantations, which make it likely that reasonable,

2
 properly instructed jurors would find [Christopher Dunn] not guilty.
House, 547 U.S. at 538. Eugene Wilson, an independent eyewitness who
has no reason to lie and was the only eyewitness in the case who is not
currently incarcerated for other crimes, provided credible testimony that
none of the witnesses at the scene of the shooting could have identified
the assailant. Mr. Wilson’s testimony provides corroborating evidence to
buttress the recantations of Mr. Stepp and Mr. Davis. Coupled with the
evidence in the record that Petitioner had an alibi, this Court does not
believe that any jury would now convict Christopher Dunn under these
facts. Instead, this Court concludes that, based on all the evidence
considered under the dictates of Schlup, it is more likely than not that
any reasonable juror would have reasonable doubt.

State ex rel. Dunn v. Buckner, 17TE-CC00059 and SC99157, p. 19 (Sept. 23, 2020)
(Judge William E. Hickle). See Appendix A.

Missouri Circuit Judge William E. Hickle came to this determination after

taking testimony and reviewing all the evidence as was directed under In re Davis,

supra. See 28 U.S.C. § 2244(b)(2)(B)(ii); see also House v. Bell, 547 U.S. 518 (2006).

Notably, Judge Hickle also ruled that the evidence presented in the motion was newly

discovered and could not have been discovered with due diligence. See 28 U.S.C. §

2244(b)(2)(B)(i); State ex rel. Dunn v. Buckner, 17TE-CC00059 and SC99157 (Citing

State ex rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo. banc 2011)). As the first

recantation did not occur until 2005, the state court judge ruled there was cause and

prejudice to allow a review of Dunn’s due process claims. See Murray v. Carrier, 477

U.S. 478 (1986); State ex rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo. banc 2011).

The state court concluded that Christopher Dunn proved, with both old and new

evidence, which the jury never heard, that he is actually innocent. See Appendix A.

The question is, why is Christopher Dunn still in prison? The answer is that

the State of Missouri case law bars freestanding actual innocence claims’ application

3
to prisoners who are not sentenced to death. See In re Lincoln v. Cassady, 517 S.W.3d

11 (Mo. Ct. App. W.D. 2016). The Missouri courts believe that an innocent man, who

allegedly received a fair trial, allegedly does not have an underlying constitutional

violation, and was convicted, does not have a due process right to be free from

unlawful seizures and incarceration.1 In re Lincoln v. Cassady, 517 S.W.3d at 21-23.

A freestanding claim of actual innocence is rooted in several concepts, including the

constitutional rights to substantive and procedural due process, and the

constitutional right not to be subjected to cruel and unusual punishment. See

generally Jonathan M. Kirshbaum, Actual Innocence after Friedman v. Rehal: The

Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence

Cases, 31 Pace L Rev 627, 660-661 [Spring 2011]; People v. Cole, 1 Misc 3d 531, 541-

542 (N.Y. Kings Cty. Sup. Ct. 2003).

The evidence now before this Court demands review, as the State of Missouri

is unreasonably applying Supreme Court precedent and keeping innocent people in

prison who are not sentenced to death. A judge has already heard this case and

determined that no jury would have convicted Christopher Dunn had it heard such

evidence.2 The judge also ruled that it is more likely than not that any reasonable juror

1 I pray that this Court notes the undersigned’s use of the term allegedly. Both of the witnesses
who testified against Mr. Dunn have admitted that they lied under oath – that their testimony
was false. Judge Hickle found both recantations credible because they were corroborated by
independent evidence. To find that Christopher Dunn received due process by way of a fair trial
is to condone the use of false and unreliable evidence to convict an innocent man, which is a
violation of the 6th Amendment of the United States Constitution.

2Specifically, Judge Hickle stated that he did not believe that any jury would convict
Christopher Dunn after hearing the evidence before him.

4
would have reasonable doubt. This finding by the hearing court judge meets the

“extremely high” threshold set by Herrera v. Collins, 506 U.S. 390, 417 (1993) and

House v. Bell, 547 U.S. at 554-55.

Here, this Court should overrule the atrocious precedent set in In re Lincoln

v. Cassady, supra. Mr. Dunn has proven his innocence and deserves, at the very

least, a new trial.3

Additionally, this Court should find that it is cruel and unusual punish for

an individual to remain in prison for a crime that he did not commit. See U.S.

Const. 8th & 14th Amends. Dunn’s current imprisonment would shock the

conscience of a reasonable citizen. His continued incarceration is a substantive due

process violation, violates his Eighth Amendment right to be free from such

unlawful punishment, and may only be remedied by this Court’s action under 28

U.S.C. 2241.

3 New York state courts have ruled that if a defendant proves his innocence by clear and

convincing evidence “the indictment should be dismissed pursuant to CPL 440.10 (4) which
authorizes that disposition where appropriate”, as “there is no need to empanel another jury to
consider the defendant’s guilt where the trial court has determined, after a hearing, that no
juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.” People v.
Hamilton, 115 A.D.3d 12, 15, 979 N.Y.S.2d 97, 109 (N.Y.App.Div. 2d Dep’t 2014).

5
The following questions are presented.

1. Is the claim of freestanding actual innocence a cognizable claim for both

petitioners sentenced to incarceration or death under the United States
Constitution when a state court has concluded, after taking testimony and
hearing evidence at a post-conviction hearing, that no jury would convict
the petitioner?

2. Is the standard to meet a freestanding actual innocence claim “clear and

convincing evidence”?

3. Is it cruel and unusual punishment and a substantive due process violation

for an innocent man to remain in prison?

6
 TABLE OF CONTENTS

QUESTIONS PRESENTED.................................................................................. 2

TABLE OF CONTENTS ....................................................................................... 7

TABLE OF AUTHORITIES .................................................................................. 9

Federal Statutes ................................................................................... 12

Rules ..................................................................................................... 12

Other ..................................................................................................... 12

I. PETITION FOR WRIT OF HABEAS CORPUS......................................... 13

II. OPINIONS BELOW .................................................................................... 13

III. JURISDICTION .......................................................................................... 14

IV. STATUTORY PROVISIONS INVOLVED .................................................. 14

V. STATEMENT OF THE CASE .................................................................... 15

VI. REASONS FOR GRANTING THE WRIT .................................................. 26

POINT I ................................................................................................ 27

POINT II ............................................................................................... 33

POINT III……..………………………………………………………………35

VII. CONCLUSION AND PRAYER FOR RELIEF ........................................... 38

7
 INDEX OF APPENDICES:

APPENDIX A State ex rel. Dunn v. Buckner,

17TE-CC00059 and SC99157, (Sept. 23, 2020)

APPENDIX B Dunn v. State.

February 17, 1997, 4:97-CV-331-MLM (denied March
22, 2000)

8
 TABLE OF AUTHORITIES
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................................................................ 37

Abney v. United States,

431 U.S. 651, 656, 97 S. Ct 2034, 2038 (1977) ...................................................... 27

Amrine v. Roper,
102 S.W.3d 541 (Mo. 2003) .................................................................................... 34

Burton v. Dormire,
295 F.3d 839 (8th Cir. 2002) ................................................................................... 31

Byrnes v. Walker,
371 U.S. 937 (1962);............................................................................................... 13

Chappel v. Cochran,
369 U.S. 869 (1962)................................................................................................ 13

In re Davis,
130 S. Ct. 1 (2009) ....................................................... 2, 3, 14, 29, 30, 32, 34, 35, 37

Douglas v. California,
372 U.S. 353, 83 S.Ct 814 (1963)........................................................................... 27

Dunn v. Bowersox,
Dock. No. 4:97-cv-00331-MLM (March 27, 2000) ................................................. 12

Dunn v. Bowersox,
Dock. No. 00-2008 (8th Cir. August 24, 2000) ......................................................... 12

Ex parte Elizondo,
947 S.W.2d 202 (Tex. Crim. App. 1996) ............................................................... 34

Felker v. Turpin,
518 U.S. 651, 663 (1996); ....................................................................................... 13

Griffin v. Denney,
347 S.W.3d 73, 77 (Mo. banc 2011) ......................................................................... 3

Griffin v. Illinois,
351 U.S. 12, 76 S.Ct 585, (1956)............................................................................ 27

In re Hardy,
41 Cal. 4th 977, 1016 (Cal. Sup. Ct. 2007) ............................................................. 33

Harris v. Kuhlman,
601 F.Supp. 987 (E.D.N.Y. 1985 .......................................................................... 27

9
 Herrera v. Collins,
506 U.S. 390, 417 (1993) .................................................................................... 5, 29

House v. Bell,
761 F.3d 443 (5th Cir. 2014) 3, 5, 29

Kaufman v. United States,

394 U.S. 217 (1969) ................................................................................................. 37

Meadows v. Delo,
99 F.3d 280 (8th Cir. 1996) ...................................................................................... 32

People v. Bermudez,
2009 N.Y. Misc. LEXIS 3099 (Sup. Ct., N.Y. Co. 2009) ......................................... 27

People v. Cole,
1 Misc 3d 531, 541-542 (N.Y. Kings Cty. Sup. Ct. 2003) .................................. 4, 33

People v. Hargrove,
162 A.D.3d 25 (N.Y. App. Div. 2d Dept. 2018)........................................................ 2

Lincoln v. Cassady,
517 S.W.3d 11 (Mo. Ct. App. W.D. 2016) ................................................ 4, 5, 25, 26
Miller v. Comm’r of Correction,
242 Conn. 745, 700 A.2d 1108 (Conn. 1997) ......................................................... 33

Montoya v. Ulibarri,
163 P.3d 476, 484 (N.M. 2007) .............................................................................. 34

People v. Days,
2009 N.Y. Misc. LEXIS 3677, *15 (Westchester Co. Ct. 2009.............................. 27

People v. Hamilton,
115 A.D.3d 12, 15, 979 N.Y.S.2d 97, 109 (N.Y.App.Div. 2d Dep’t 2014).......... 5, 33

People v. Washington,
171 Ill. 2d 475, 665 N.E.2d 1330, 216 Ill. Dec. 773 (Ill. 1996 ......................... 31, 33

People v. Wheeler-Whichard,
25 Misc. 3d 690 (Sup. Ct., Nassau Co. 2009) (McKay, J.) ..................................... 27

Rinaldi v. Yeager,
384 U.S. 305, 86 S.Ct 1497, (1966)......................................................................... 27

Roper v. Simmons,
543 U.S. 551 (2005) ................................................................................................. 37

County of Sacramento v. Lewis,

10
 523 U.S. 833 (1998) ........................................................................................... 37-38
Schlup v. Delo,
513 U.S. 298, 327 (1995) .............................................................................. 3, 25, 32

Sawyer v. Whitley,
505 U.S. 333 (1992)................................................................................................ 32

State v. Dunn,
889 S.W.2d 65 (Mo.App. E.D. 1994) ................................................................ 12, 15

State ex rel. Dunn v. Buckner,

17TE-CC00059 and SC99157, p. 19 (Sept. 23, 2020) ............................. 3, 12, 13, 26

State ex rel. Dunn v. Buckner,

Dock. No. SD36893 (Mo.App. S.D. November 13, 2020) ..................................... 13

State ex rel. Dunn v. Buckner,

Dock. No. SC99157 (Mo. June 9, 2021) ................................................................ 13

Wolff v. McDonnell,
418 U.S. 539, 558 (1974) ....................................................................................... 38

11
 Federal Statutes

28 U.S.C. § 2241 ..................................................................................................... 14, 32

28 U.S.C. § 2254………………………………………………………. 8, 13, 14, 16, 30, 31, 32
28 U.S.C. § 2244 (b)(2)(B)(ii) ....................................................................................3, 14

Rules

Missouri Criminal Procedural Rule 29.15 ........................................... 12, 15, 24, 27, 28
Supreme Court Rule 20.4............................................................................................. 13

Other

Jonathan M. Kirshbaum, Actual Innocence after Friedman v. Rehal: The Second Circuit
Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases, 31 Pace L Rev
627, 660-661 [Spring 2011];.......................................................................................... 13
“Is Innocence Irrelevant? Collateral Attack on Criminal Judgments.” University of
Chicago Law Review: Vol. 38: Iss. 1, Article 9.............................................................. 36

12
 I. PETITION FOR WRIT OF HABEAS CORPUS

Christopher Dunn petitions this Court for a writ of habeas corpus based upon

his freestanding claim of actual innocence.

II. OPINIONS BELOW

Mr. Dunn filed a pro se motion for post-conviction relief under Missouri

Criminal Procedural Rule 29.15 and a direct appeal. His motion for post-conviction

relief was denied and his conviction was affirmed in all respects, except that the

appellate division remanded the matter back down to the trial court to have a

hearing on Mr. Dunn’s Batson claim. See State v. Dunn, 889 S.W.2d 65 (Mo.App.

E.D. 1994). Mr. Dunn’s Batson claim was ultimately denied as well. See State v.

Dunn, 906 S.W.2d 388 (Mo.App. E.D. 1995).

Mr. Dunn therein filed a writ of habeas corpus in the United States District

Court, Eastern District of Missouri, pursuant to 28 U.S.C. 2254, which was denied

on March 27, 2000. See Exhibit B - Dunn v. Bowersox, Dock. No. 4:97-cv-00331-

MLM (March 27, 2000). Dunn sought a certificate of appealability from the United

States Court of Appeals for the Eighth Circuit, which was denied. Dunn v.

Bowersox, Dock. No. 00-2008 (8th Cir. August 24, 2000). This Court denied Mr.

Dunn’s petition for writ of certiorari on February 5, 2001.

On September 23, 2020, after finding that no jury would convict Christopher

Dunn with the evidence presented at Dunn’s post-conviction hearing, the Circuit

Court of Texas County, Missouri, denied Mr. Dunn’s state petition for writ of

habeas corpus. State ex rel. Dunn v. Buckner, 17TE-CC00059 and SC99157, (Sept.

13
 23, 2020) (Judge William E. Hickle). See Appendix A. Dunn appealed his denial to

the Missouri Appellate Division Southern District. His appeal was denied. State ex

rel. Dunn v. Buckner, Dock. No. SD36893 (Mo.App. S.D. November 13, 2020). Dunn

appealed the Appellate Division’s denial to the Missouri Supreme Court. His

application before the Missouri Supreme Court was likewise denied. State ex

rel. Dunn v. Buckner, Dock. No. SC99157 (Mo. June 9, 2021).

On April 29, 2022, Dunn sought leave to file a successive petition for writ of

habeas corpus before the United States Court of Appeals for the Eighth Circuit

pursuant to 28 U.S.C. § 2244. His petition for leave was denied on July 27, 2022.

Dunn v. Buckner, 22-1892 (8th Cir. July 27, 2022)

III. JURISDICTION

This Court has jurisdiction over original writ of habeas corpus petitions

pursuant to United States Supreme Court Rule 20.4(a) and 28 U.S.C. § 2241. See

Felker v. Turpin, 518 U.S. 651, 663 (1996); Byrnes v. Walker, 371 U.S. 937 (1962);

Chappel v. Cochran, 369 U.S. 869 (1962). Mr. Dunn’s claims are ripe before this

Court, as he has exhausted all his state court and federal court remedies. See 28

U.S.C. §§ 2241, 2242 & 2254(b).

IV. STATUTORY PROVISIONS INVOLVED

This case involves an original habeas application pursuant to 28 U.S.C. §

2241, which is an extraordinary form of review for both state and federal

convictions that have exhausted post-conviction remedies. See generally In re

Davis, 130 S. Ct. 1 (2009); Felker v. Turpin, 518 U.S. 651 (1996). The constitutional

14
 provision directly at issue here is the 8th Amendment right to remain free from cruel and

unusual punishment based upon the incarceration of an innocent man.

V. STATEMENT OF THE CASE4

Christopher Dunn was convicted by a jury on July 18, 1991, for the May 18,

1990 murder of Ricco Rogers. Dunn was also convicted of two counts of assault in

the first degree and three counts of armed criminal action arising from the same

occurrence. Mr. Dunn was subsequently sentenced to life without parole and

consecutive sentences of ninety years by St. Louis City Circuit Judge Michael

Calvin.

The State's case rested upon the eyewitness testimony of fourteen-year-old

DeMorris Stepp and twelve-year-old Michael Davis. Both of these young men

testified at trial that on May 18, 1990, these two juveniles and Mr. Rogers were

sitting on a porch at a house at 5607 Labadie in the City of St. Louis. Just before

midnight, Mr. Stepp testified that he saw Christopher Dunn standing in the

gangway of the house next door. A few minutes later, shots rang out and all three

boys tried to run away. Both Mr. Stepp and Mr. Davis testified at trial that Mr.

Dunn was the person who fired the fatal shots that caused the death of Mr. Rogers.

At the time he testified, Mr. Stepp had pending charges for armed robbery,

armed criminal action, unlawful use of a weapon, and tampering in the first degree.

In exchange for his testimony against Dunn, the prosecution dropped the armed

criminal action charges against Mr. Stepp, who then pleaded guilty to the

4 The factual recitation of this case is gathered directly from Appendix A.

15
remaining charges. The state recommended a fifteen-year sentence for the charges;

however, the sentencing judge granted Mr. Stepp probation.

After Mr. Dunn was convicted and sentenced, he filed a timely notice of

appeal and a timely Rule 29.15 motion pursuant to Missouri's then-existing

consolidated post-conviction review system in criminal cases. After holding an

evidentiary hearing, the trial court denied Petitioner's Rule 29.15 motion. On

consolidated appeal, the Missouri Court of Appeals, Eastern District affirmed Mr.

Dunn's convictions and the denial of his post-conviction motion in State v. Dunn,

889 S.W. 2d 65 (Mo. App. E.D. 1994). Mr. Dunn, thereafter, unsuccessfully sought

federal habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States

District Court for the Eastern District of Missouri.

In 2005, DeMorris Stepp signed a sworn affidavit claiming that he committed

perjury when he identified Christopher Dunn as the man he saw shoot Ricco

Rogers. Mr. Stepp indicated he was pressured by police and prosecutors to falsely

identify Mr. Dunn as the shooter because they wanted him off the streets. Mr. Stepp

also asserted that the prosecution utilized Mr. Stepp's pending felony charges as

leverage to convince him to testify that Christopher Dunn was the shooter and

promised him he would avoid jail time if he did so. Mr. Stepp's affidavit states that

because it was so dark that night, he could not identify the person who fired the

fatal shot.

At the recent evidentiary hearing, Mr. Stepp testified that he committed

perjury when he identified Christopher Dunn as the shooter. In addition, he

16
testified that he lied under oath regarding the plea bargain he reached with the

prosecution about his pending charges. Mr. Stepp testified that he had an

understanding with the prosecution that, if he testified against Dunn, he would be

guaranteed probation and there was no danger in his mind that he would receive a

fifteen-year sentence.

At the Court's request, the record was recently reopened to allow the

presentation of a transcript from Mr. Stepp's 1991 guilty plea and sentencing,

which was marked and received as Petitioner's Exhibit 19. Though the transcript

corroborated that Mr. Stepp received probation, it did not evidence an agreement or

understanding with Mr. Stepp or anyone else that Mr. Stepp would receive

probation.

On July 17, 1991, in Mr. Dunn's trial, Mr. Stepp testified against Dunn. Mr.

Stepp acknowledged to the jury that he had unrelated charges pending against him.

He testified that he had reached a plea agreement where the state dropped armed

criminal action charges to give him a chance at probation, and that the state was

recommending that he receive fifteen years in prison (Tr. 147, 155-156). Later that

same day, on July 17, 1991, Mr. Stepp pleaded guilty before Judge Michael Calvin,

who was also the judge presiding over Mr. Dunn’s trial. In cause number 911-640,

Mr. Stepp was charged with robbery in the first degree, armed criminal action,

tampering in the first degree, and unlawful use of a weapon. At the commencement

of the plea hearing, the prosecution announced that there was a plea agreement

whereby the State would recommend concurrent sentences of fifteen years on the

17
robbery charge, one year on the tampering charge, and one year on the weapons

charge, all to run concurrently. The armed criminal action charge would be

dismissed pursuant to this plea bargain. During the plea colloquy, the trial court

noted that this plea bargain was offered in consideration for Mr. Stepp's testimony

in the case that he was presently trying. After the court accepted the plea, a

presentence investigation was ordered, and sentencing was set for August 30, 1991.

At the sentencing hearing, Mr. Stepp's counsel requested on behalf of Mr.

Stepp probation rather than fifteen years’ imprisonment. Judge Calvin then

conducted a lengthy hearing in which he inquired of other family members of Mr.

Stepp who were present in the courtroom, and ultimately elected to suspend

imposition of sentence on all three charges, granting Mr. Stepp only three years of

probation. The prosecutor remained silent during the sentencing hearing.

The Circuit Court, during Dunn’s state habeas hearing, found that no

agreement for probation existed at the time of Mr. Stepp's testimony at Dunn's trial

for Mr. Stepp to receive probation. The Circuit Court found that it appeared that

Judge Calvin at Mr. Stepp's sentencing hearing made an independent

determination as to whether young DeMorris Stepp should have been granted

probation rather than being sent to prison for fifteen years. The Court believed that

Judge Calvin ultimately decided on probation, not because the parties had agreed to

it, but because Judge Calvin deemed it appropriate.

After he received probation, Mr. Stepp repeatedly violated his probation and

ultimately served his fifteen-year sentence. After he was released, Mr. Stepp was

18
subsequently convicted of first-degree murder involving the killing of his girlfriend

and is currently serving a sentence of life without parole at the Jefferson City

Correctional Center.

In 2017, in an interview with an investigator from the Missouri Attorney

General's office, Mr. Stepp provided a third version of the events he purportedly

observed the night of the shooting. In this 2017 statement, Mr. Stepp stated that

another unknown individual shot and killed Ricco Rogers and Mr. Dunn was

standing by him when the shooting occurred. At the evidentiary hearing in the

instant case, in addition to claiming that his trial testimony was fabricated and

false, Mr. Stepp testified that this story he told the prior year to the attorney

general's investigator was also false. In his 2018 testimony, Mr. Stepp asserted that

he hoped by giving this false statement to obtain a reduction of his current sentence

of life without parole.

At 2:50 a.m. on May 19, 1990, less than three hours after the shooting, Mr.

Stepp gave a recorded interview with law enforcement officers, the transcript of

which was marked as Exhibit 14 of the post-conviction hearing. Mr. Stepp said that

Ricco Rogers, Michael Davis, and DeMorris Stepp were on the porch at 5607

Labadie, when Mr. Stepp saw Christopher Dunn hiding around the corner next

door. He then stated, “You know, I thought my mind, you know, was playing games

and I looked dead in his face, and I guess he fired, he thought I seen him, so he shot

at me first...It missed me by just an inch.” Several shots were fired, and the boys

started running, except that Ricco Rogers fell and died. When Mr. Stepp was asked

19
whether he saw Christopher Dunn prior to the shots being fired, Mr. Stepp

answered: “He was shooting the gun.” (Exh. 14, pp. 2-6).

The hearing judge held that it was next to impossible to determine which

version of events related by Mr. Stepp was the most credible. The hearing judge

continued, “[h]owever, regardless of which of Mr. Stepp's multiple statements are

true, it is beyond dispute that Mr. Dunn was convicted based upon the eyewitness

testimony of a person who at this point has told multiple contradictory versions of

what he claims to have observed on the night of the shooting.” See Appendix A. The

hearing judge determined that DeMorris Stepp was a liar.

The other eyewitness, Michael Davis, moved to California shortly after he

testified at Mr. Dunn’s trial. Mr. Davis was on the Labadie porch with Ricco Rogers

and DeMorris Stepp at the time of the shooting. He was interviewed by law

enforcement at 3:04 a.m. on May 19, 1990, within approximately three hours of the

shooting. The statement was recorded, and the transcript was marked as Exhibit

20. He stated in the interview that moments after the shooting he fell to the ground

and played dead and looked up and was able to see the shooter. He claimed to have

recognized the shooter as “Trap”, the nickname for Christopher Dunn, by the

unique sunglasses that Mr. Dunn regularly wore. (Exh. 20, pp. 2-9).

At trial, Mr. Davis testified that he did not see the shooter until after the first

shot was fired. Ricco Rogers fell, and Mr. Davis fell beside him to avoid getting shot.

Mr. Davis claimed that right before he fell, he looked and saw the shooter, who he

identified as Christopher Dunn. (Tr. 174-182).

20
 In 2015, Mr. Davis was located at the Solano County Jail in Fairfield,

California where he was incarcerated on pending criminal charges. (Exh’s. 2, 17,

18). After being interviewed, Mr. Davis also recanted under oath in a sworn

affidavit. (Id.). This affidavit indicates that Mr. Davis committed perjury when he

identified Mr. Dunn as the killer at the 1991 trial. (Id.). Mr. Davis stated that he

could not see the shooter from his location. (Id.). Mr. Davis indicated that Mr. Stepp

convinced him to implicate Mr. Dunn as the shooter because they believed he was a

member of the Crips gang in their neighborhood. (Id.). Because Mr. Stepp and Mr.

Davis were members of the rival Bloods gang, they wanted Mr. Dunn out of the

neighborhood and believed implicating him in the murder was an easy way to get

that done. (Id.). This account is corroborated by the testimony at the evidentiary

hearing from Mr. Stepp, who stated that he convinced Mr. Davis to tell the police

that Mr. Dunn was the shooter.

A couple of weeks after the shooting, Mr. Davis moved to California with his

mother. (Id.). He was brought back to Missouri by the prosecutors in 1991 to testify

at Dunn’s trial. When interviewed by the police prior to testifying, he stated that he

hesitated as to whether he could identify who shot Ricco Rogers. (Id.) At that time,

he asserted that he was pressured by the police to identify Christopher Dunn as the

killer. The police showed Mr. Davis photos of Ricco Rogers’ corpse. The police also

arranged to have Ricco Rogers’ mother call him and urge him to testify. (Id.) Mr.

Davis stated that as a result of this pressure, Mr. Davis appeared in court and

committed perjury at trial by identifying Mr. Dunn as the shooter. (Id.).

21
 On November 17, 2015, Mr. Davis gave a tape-recorded statement to

Christopher Dunn’s investigator, Craig Speck, at the Solano County Jail. (See Exh.

17). A copy of this tape-recorded statement was transcribed by a court reporter and

was attached to Mr. Dunn’s reply in support of his original petition as Exhibit 7.

Mr. Davis provided another tape-recorded statement to Investigator Speck on June

9, 2017 and affirmed his 2015 statement.

At the time of the evidentiary hearing, Mr. Davis was in California custody

and had been released from jail to an inpatient drug treatment program. Counsel

for Dunn intended to take Mr. Davis’ deposition on or before August 1, 2018 and

submit it to the hearing court. However, Mr. Davis absconded from the halfway

house and a warrant was issued for his arrest. Because he was not arrested on this

warrant, Mr. Dunn requested that the hearing court consider the testimony of Mr.

Davis’ through his sworn affidavit and through the transcribed taped statement

that were previously submitted to the hearing court.

The hearing court held that the recantations of DeMorris Stepp and Michael

Davis were bolstered by the testimony of an independent eyewitness, Eugene

Wilson, who was present at the house and witnessed the shooting death of Ricco

Rogers. Mr. Wilson is referred to as “Geno” in the police reports and during the trial

testimony of Mr. Stepp and Mr. Davis. Mr. Wilson signed a sworn affidavit and

testified at the evidentiary hearing that he was present with Ricco Rogers,

DeMorris Stepp, and Michael Davis on Marvin Tolliver’s porch at 5607 Labadie on

the night of May 19, 1990. Several shots rang out that came from the front of the

22
house to the west. Mr. Wilson stated that because it was dark outside, none of the

young men on the porch could see who was shooting at them. Everybody started to

run except for Ricco Rogers and, after the gunshots stopped, Mr. Wilson realized

that Ricco had been shot.

Shortly after the shots were fired, one of the men on the porch mentioned

Christopher Dunn’s name and indicated he might have been the shooter. Mr.

Wilson stated that many of the younger kids in that neighborhood did not like

Christopher Dunn. Mr. Wilson also testified that because he and Marvin Tolliver

were friends with Mr. Dunn, he did not believe that Dunn would have shot at them

because of that friendship. He also testified that he was certain that because of

where Mr. Stepp and Mr. Davis were positioned when Ricco Rogers was shot,

neither of them could have possibly seen the shooter or positively identified Mr.

Dunn. When he was told about some of the prior statements that Mr. Stepp and Mr.

Wilson had given regarding the description of the shooter, Mr. Wilson stated that

these statements were false because it was not possible that either of them could

have seen the shooter.

The hearing court found that Mr. Wilson’s testimony was credible. The court

reasoned that Wilson had no obvious motive to lie. Mr. Wilson credibly testified that

he did not speak to the police that night because he could not identify who did it and

did not believe at that time that he had any relevant information to aid the police in

catching the actual shooter. Mr. Wilson's credibility was also enhanced by the fact

that he had lived with Ricco Rogers’ family since he was fourteen years old. As a

23
result, he was very close to Mr. Rogers’ mother and would have no apparent motive

to hinder the effort to hold accountable the murderer of Ricco Rogers.

Mr. Wilson testified at the evidentiary hearing that Mr. Rogers’ mother’s

boyfriend had a motive to commit these crimes because Mr. Rogers, Mr. Stepp, and

Mr. Davis had beaten him up three days earlier because he was physically abusive

toward Ricco Rogers’ mother. Mr. Wilson also testified that Ricco Rogers’ younger

brother was shot approximately three months later. Mr. Rogers’ brother was also

involved in the beating of his mother's boyfriend.

The hearing court found that Christopher Dunn’s claim of innocence was also

corroborated by other independent evidence. Mr. Dunn submitted a sworn affidavit

from Catherine Jackson indicating that she was friends with Mr. Dunn at the time

of the shooting in 1990 and that they often spoke on the phone.

Ms. Jackson indicated that at approximately 11:00 p.m. on the night of the

shooting, she was engaged in a lengthy phone conversation with Mr. Dunn that

lasted between thirty and sixty minutes that could have been ongoing at the time

that Mr. Rogers was shot. During that conversation, she remembered that Mr.

Dunn was happy and acting normal and did not seem upset or indicate that he had

been involved in any altercation or dispute with anyone. When she was contacted

about being a trial witness for Mr. Dunn, Ms. Jackson's mother did not want her to

get involved and refused to answer the door when the public defender’s office came.

However, she did not testify at the evidentiary hearing in this cause.

Another friend of Dunn, Nicole Bailey, provided an affidavit and testified at

24
the Mr. Dunn’s post-conviction hearing. Ms. Bailey testified that she spoke on the

phone with Dunn on the night that Mr. Rogers was shot. Ms. Bailey remembers this

phone conversation because it occurred while she was in the hospital, after having

given birth to her first child the night before. Ms. Bailey also was certain that this

phone conversation occurred on the night that Mr. Rogers was killed because she

attempted to call Mr. Dunn again that same night and was informed by Dunn’s

sister that the police had just come to Dunn’s house looking for him as a suspect in

the killing of Mr. Rogers that had occurred earlier that evening. (Id.).

Curtis Stewart testified at the post-conviction evidentiary hearing. Mr.

Stewart testified that he was incarcerated in a ten-man pod at the St. Louis City

workhouse with DeMorris Stepp in 1991. Mr. Stewart overheard Mr. Stepp making

a telephone call, during which Mr. Stepp indicated that he did not know who shot

Ricco Rogers. When Mr. Stewart and the other inmates in that pod learned that Mr.

Stepp was going to falsely accuse Mr. Dunn of being the shooter, this caused friction

and fights and, as a result, Mr. Stepp was removed to another area of the

workhouse.

Finally, the hearing court found that Christopher Dunn’s claim of innocence

was corroborated by several alibi witnesses whose testimony was presented at Mr.

Dunn’s Missouri Criminal Procedure Rule 29.15 hearing. Mr. Dunn’s claim of

innocence was also bolstered by evidence adduced during the Rule 29.15 hearing

that the victim’s brother, Dwayne Rogers, had made statements that Petitioner was

not the man who had killed his brother and that he knew the identity of the actual

25
shooter.

The hearing court found that no jury would convict Mr. Dunn with the

evidence that Dunn had presented in his post-conviction proceedings. Yet, the

hearing court denied Dunn’s freestanding actual innocence claim because

freestanding actual innocence claims are not available to defendants who are not

sentenced to death based upon Missouri precedent set in In re Lincoln v. Cassady,

517 S.W.3d 11 (Mo. Ct. App. W.D. 2016). While the hearing court found that Mr.

Dunn had met the gateway claim of actual innocence pursuant to Schlup, supra., it

also ruled that his underlying constitutional claims were without merit. Dunn’s

applications to the Appellate Division and Supreme Court in Missouri were all

denied, as was his application for successive writ of habeas corpus before the United

States Court of Appeals Eighth Circuit.

VI. REASONS FOR GRANTING THE WRIT

This Court’s intervention is necessary to answer the question once and for

all - “Does innocence matter?” In this Court’s decision In re Davis, supra., this Court

held that a defendant has the right to present all of his evidence on the merits when

there is a prima facie claim of innocence. Additionally, this Court held that a

defendant is entitled to relief if he “clearly establishes” his “innocence.” Id.

Courts around the country have held that the standard to meet a

freestanding actual innocence claim is “clear and convincing evidence” of innocence.

These same courts found that “clear and convincing evidence” means that no

reasonable juror would convict the post-conviction petitioner after hearing the

26
 evidence presented by said petitioner during his or her post-conviction proceedings.

Well, the hearing court in Christopher Dunn’s case found that Dunn’s

evidence was credible and held that no jury would convict Dunn if it had heard the

evidence that Mr. Dunn presented during his post-conviction proceedings. We

merely ask the Court to give Christopher Dunn the remedy he so rightly deserves

because he has, by this Court’s own standard set in In re Davis, proven his

innocence.

POINT I

CHRISTOPHER DUNN IS ENTITLED TO HABEAS RELIEF BECAUSE A STATE

COURT JUDGE FOUND THAT NO JURY WOULD CONVICT HIM AFTER
HEARING AND CONSIDERING ALL OF THE EVIDENCE IN MR. DUNN’S
POST-CONVICTION PROCEEDINGS.

The Circuit Court of Texas County, Missouri found that, after hearing

testimony and considering all the evidence presented by both the State of Missouri

and Christopher Dunn, no jury would convict Dunn. See Appendix A – A copy of

State ex rel. Dunn v. Buckner, 17TE-CC00059 and SC99157 (Sept. 23, 2020) (Judge

William E. Hickle). Based upon this finding, Dunn was entitled to habeas relief, yet

he was barred because of the unconscionable Missouri state court precedent set in

In re Lincoln v. Cassady, 517 S.W.3d 11 (Mo. Ct. App. W.D. 2016), which held that

inmates who were not sentenced to death were not entitled to habeas relief under

freestanding claims of actual innocence. This is an unreasonable application of

Supreme Court precedent both in the fact that (a) the State of Missouri’s denial of

habeas relief to an innocent man is a violation of the 8th and 14th Amendment of the

United States Constitution and (b), pursuant to Article 1 Section 9, Clause 2 of the

27
United States Constitution, the State of Missouri is suspending habeas corpus relief

that is due to Dunn.

It is true that there is no constitutional right to an appeal or post-conviction

hearing. Abney v. United States, 431 U.S. 651, 656, 97 S. Ct 2034, 2038 (1977).

Having made the right to post-conviction proceedings available under Mo. R. 29.15

and Mo. R. 91, however, the State of Missouri is obligated by the United States

Constitution to avoid impeding effective access to or relief under the post-conviction

process. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct 1497, (1966); Douglas v. California,

372 U.S. 353, 83 S.Ct 814 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct 585, (1956)

(quoting from Harris v. Kuhlman, 601 F.Supp. 987 (E.D.N.Y. 1985)).

Here, the habeas court in Missouri found that Dunn had presented evidence

that was newly discovered and that established his innocence. See Appendix A.5

The habeas court specifically held it did “not believe that any jury would now

convict Christopher Dunn under these facts.” See Appendix A, p. 19. The state court

came to this conclusion by finding the following:

a. The affidavit and hearing testimony of eyewitness Eugene Wilson was

both independent and credible.

b. The recantations of Michael Davis and DeMorris Stepp were bolstered

by independent evidence that the hearing court deemed credible. While

the judge concluded that DeMorris Stepp was a proven liar, the

5This Court should know that the judge in the state court proceeding specifically address the newly
discovered aspect of the evidence and found that any procedural hurdle based upon the timing
discovery of the evidence was defeated. See Appendix A.

28
 hearing court specifically found that both Davis’s and Stepp’s

recantations were corroborated by Eugene Wilson, an independent

eyewitness who testified that neither Davis nor Stepp could have

identified the shooter because of their positions at the time of the

shooting.

c. The hearing court found that Petitioner’s claims of innocence were also

corroborated by Catherine Jackson, Nicole Bailey, and Curtis Stewart,

who were presented during Dunn’s last post-conviction hearing, the

alibi witnesses, and the statement of the deceased’s brother, Dwayne

Rogers,6 that Mr. Dunn presented in his Missouri Rule 29.15 hearing

in the 1990’s prior to his direct appeal.

Christopher Dunn has presented a freestanding claim of actual innocence,

because no jury would convict him with the evidence presented to the Circuit Court

in Missouri. His continued incarceration is a violation of the Eighth Amendment – it

is cruel and unusual punishment. This is plainly a constitutional violation that this

Court recognized in its seminal decision In re Davis, 130 S. Ct. 1 (2009). And as this

Court required to obtain habeas relief in Davis, here, a hearing court took testimony

and evidence and found that there was clear and convincing evidence, i.e., no jury

would convict, that Christopher Dunn is an innocent man. As such, this Court should

either grant immediate relief and free an innocent man or order a new trial.

6Dwayne Rogers testified that Petitioner was not the man who had killed Ricco Rogers, his brother,
and that Dwayne knew the identity of the actual killer.

29
 Contrary to popular belief, this Court never foreclosed freestanding actual

innocence claims. As more and more evidence of wrongful convictions has come to

light, this Court, like all courts around the country, has recognized that there may be

innocent people languishing in prison. In Herrera v. Collins, 506 U.S. 390 (1993), a

case from 1993, this Court set the stage for freestanding claims of actual innocence.

But the criminal justice system, and this Court, for that matter, have greatly

progressed since 1993, recognizing that there are innocent people in prison. In House

v. Bell, 547 U.S. 518, 554-555 (2006), this Court specifically addressed a petitioner’s

freestanding claim and did not foreclose relief for a prisoner who makes a claim of

actual innocence that is unaccompanied by an underlying constitutional violation

outside of his or her incarceration. But that changed when the Supreme Court held

that the execution of an innocent man is cruel and unusual punishment. In Re Davis,

supra.

Specifically, In Re Davis made it clear that habeas relief is appropriate for an

innocent man who does not have an underlying constitutional violation:

Second, JUSTICE SCALIA assumes as a matter of law that, “[e]ven if the

District Court were to be persuaded by Davis's affidavits, it would have no
power to grant relief” in light of 28 U.S.C. § 2254(d)(1). Post, at 2. For several
reasons, however, this transfer is by no means “a fool's errand.” Post, at 5. The
District Court may conclude that § 2254(d)(1) does not apply, or does not apply
with the same rigidity, to an original habeas petition such as this.
See Felker v. Turpin, 518 U.S. 651, 663, 116 S. Ct. 2333, 135 L. Ed. 2d 827
(1996) (expressly leaving open the question whether and to what extent the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to
original petitions). The court may also find it relevant to the AEDPA analysis
that Davis is bringing an “actual innocence”
claim. See, e.g., Triestman v. United States, 124 F.3d 361, 377-380 (CA2
1997) (discussing “serious” constitutional concerns that would arise if AEDPA
were interpreted to bar judicial review of certain actual innocence claims); Pet.

30
 for Writ of Habeas Corpus 20-22 (arguing that Congress intended actual
innocence claims to have special status under AEDPA). Even if the court finds
that § 2254(d)(1) applies in full, it is arguably unconstitutional to the extent it
bars relief for [an incarcerated] inmate who has established his innocence.
Alternatively, the court may find in such a case that the statute's text is
satisfied, because decisions of this Court clearly support the proposition that it
“would be an atrocious violation of our Constitution and the principles upon
which it is based” to [imprison] an innocent person. In Re Davis, 565 F.3d 820,
830 (11th Cir. 2009) (Barkett, J., dissenting); cf. Teague v. Lane, 489 U.S. 288,
311-313, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion).

JUSTICE SCALIA would pretermit all of these unresolved legal questions on

the theory that we must treat even the most robust showing of actual innocence
identically on habeas review to an accusation of minor procedural error.
Without briefing or argument, he concludes that Congress chose to foreclose
relief and that the Constitution permits this. But imagine a petitioner in
Davis's situation who possesses new evidence conclusively and definitively
proving, beyond any scintilla of doubt, that he is an innocent man. The
dissent's reasoning would allow such a petitioner to be [incarcerated]
nonetheless. The Court correctly refuses to endorse such reasoning.

In re Davis, 130 S. Ct. at 1-2. (Justice Stevens, concur.)7

Even the Eighth Circuit, which heard Dunn’s petition for a successive habeas

petition, has (a). never foreclosed a petitioner from making a freestanding actual

innocence claim and (b). actually recognizes freestanding actual innocence claims,

albeit, at a higher standard than gateway innocence claims. Feather v. United States,

18 F.4th 982 (8th Cir. 2021) (recognizing a freestanding actual innocence claim);

Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014) (contrary to the State’s position in

opposition to Mr. Dunn’s application for a successive habeas petition, Dansby did not

7 Any allusion by the State of Missouri that Dunn has other recourse is absolutely misplaced.
Significantly, Justice Stevens’ response to Judge Scalia’s dissent addressed the same point that the
State of Missouri often points to as an alternative avenue for Dunn to seek relief – via DNA testing,
clemency or Mo. Rev. Stat. § 547.031. Christopher Dunn should not have to present his case to a
prosecutor, who has an obligation to the victim and to vigorously defend convictions. Likewise, he
should not have to seek mercy from the governor. Lastly, to punish a defendant for not having a
DNA case is wholly arbitrary. These avenues still deny Dunn’s right to the criminal justice system -it
denies him due process.

31
foreclose a freestanding actual innocence claim; it merely stated that the freestanding

claim is a higher standard than a gateway innocence claim) ; Cornell v. Nix, 119 F.3d

1329, 1334 (8th Cir. 1997) (recognizing free standing actual innocence and defining

the standard as “clear and convincing evidence” or “unquestionably established”

innocence).8

To be clear, this Court in In Re Davis did not differentiate between petitioners

who are facing death or just imprisonment. Any restriction of a petitioner’s right to

remain at liberty based upon a wrongful conviction is a constitution violation that

entitles a petitioner to relief under 28 U.S.C. 2254 and 28 U.S.C. 2241. Likewise, this

Court has set precedent here for the law that applied to cases concerning inmates

facing death also being applicable to inmates who are imprisoned for however long,

let alone life without parole plus 90 years as Christopher Dunn is facing. See, e.g.,

Strickland v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003);

see also Feather v. United States, 18 F.4th 982 (8th Cir. 2021); Cornell v. Nix, 119

F.3d 1329, 1334 (8th Cir. 1997) (While the standard for a freestanding claim of actual

innocence is more demanding than a gateway claim of actual innocence, a

freestanding claim is available to non-death sentenced defendants).

The state court found that Christopher Dunn’s claims of innocence are

credible and held that no jury would have convicted Dunn had it heard the evidence

before the hearing court. Legal rulings and factual findings of state courts are

entitled to deference. 28 U.S.C. 2254(d); see also Commissioner v. Duberstein, 363

8Both Burton v. Dormire, 295 F.3d 839 (8th Cir. 2002) and Meadows v. Delo, 99 F.3d 280 (8th Cir.
1996), which were cited by the State before the Eighth Circuit, were decided prior to In Re Davis.

32
U.S. 278 (1960). Therefore, this Court should grant habeas relief to Christopher

Dunn.

POINT II

CHRISTOPHER DUNN MET THE STANDARD OF A FREESTANDING CLAIM

OF ACTUAL INNOCENCE WHEN THE HEARING COURT DETERMINED THAT
NO JURY WOULD CONVICT DUNN HAD IT HEARD THE EVIDENCE DUNN
PRESENTED IN HIS POST-CONVICTION PROCEDINGS.

Here, the state court found that no jury would have convicted Dunn had the

jury heard the evidence that was presented to the hearing court. Mr. Dunn submits

that he met the standard for a freestanding claim of innocence when the state court

came to this finding.

This Court has been clear that, while the standard of a freestanding actual

innocence claim does not rise to the level of the standard of beyond a reasonable

doubt, it is more demanding than the gateway claim of actual innocence, which is

that a person is more probably innocent than not. See Schlup v. Delo, 513 U.S. 298,

327 (1995) (citing Sawyer v. Whitley, 505 U.S. 333(1992) (Holding that freestanding

claims of actual innocence must be proven by clear and convincing evidence that no

reasonable juror would convict); see also Cornell v. Nix, 119 F.3d 1329, 1334 (8th Cir.

1997).

Mr. Dunn submits that the standard for a freestanding claim of actual is “clear

and convincing evidence.” See Schlup v. Delo, 513 U.S. at 327. And this is the general

understanding of courts around the country. After remand in In re Davis, the district

court borrowed the “clear and convincing evidence” standard from Sawyer and Delo,

which meant, “Mr. Davis must show by clear and convincing evidence that no

33
reasonable juror would have convicted him in the light of the new evidence.” In re

Davis, No. CV409-130, 2010 WL 3385081, at *47 (S.D.Ga. Aug. 24, 2010). This Court

apparently concurred with the district court’s standard of review when it affirmed

the district court’s denial of Davis’s habeas petition. In re Davis, 137 S. Ct. 2273

(2017).

And clear and convincing evidence of evidence means that no reasonable jury

or juror would convict the defendant had the jury heard that evidence. People v.

Hamilton, 115 A.D.3d 12, 15, 979 N.Y.S.2d 97, 109 (N.Y.App.Div. 2d Dep’t 2014) (New

York has held that clear and convincing is the standard for a freestanding claim of

innocence. Clear and convincing evidence means that no reasonable juror would

convict)9; People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330, 216 Ill. Dec. 773

(Ill. 1996) (In Illinois, freestanding actual innocence claims must be supported by

evidence that is new, material, noncumulative and, most importantly, ‘of such

conclusive character’ as would ‘probably change the result on retrial.’); Miller v.

Comm’r of Correction, 242 Conn. 745, 700 A.2d 1108 (Conn. 1997) (In Connecticut, in

a habeas corpus claim of actual innocence, an inmate must establish by clear and

convincing evidence that he was actually innocent and that no reasonable person

would have found him guilty of his charged crime.); In re Hardy, 41 Cal. 4th 977, 1016

(Cal. Sup. Ct. 2007) (California’s standard for actual innocence is that the evidence

must undermine the entire prosecution’s case and point unerringly to innocence or

9See also People v. Days, 2009 N.Y. Misc. LEXIS 3677, *15 (Westchester Co. Ct. 2009), citing People
v. Cole, 1 Misc. 3d 531 (Sup. Ct., Nassau Co. 2003) (Leventhal, J.); People v. Wheeler-Whichard, 25
Misc. 3d 690 (Sup. Ct., Nassau Co. 2009) (McKay, J.); People v. Bermudez, 2009 N.Y. Misc. LEXIS
3099 (Sup. Ct., N.Y. Co. 2009).

34
reduced culpability).; Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)

(Texas’s standard is clear and convincing evidence that no rational jury would

convict); State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003) (Missouri’s

standard is a clear and convincing showing of actual innocence that undermines

confidence in the correctness of the judgment. Unfortunately, Missouri does not

believe that this standard applies to inmates who are not sentenced to death);

Montoya v. Ulibarri, 163 P.3d 476, 484 (N.M. 2007) (In New Mexico, a petitioner

“asserting a freestanding claim of innocence must convince the court by clear and

convincing evidence that no reasonable juror would have convicted him in light of the

new evidence”).

The state court ruled that no jury would have convicted Dunn with the

evidence that was presented in Dunn’s habeas motion. In other words, Dunn met the

standard of clear and convincing evidence of innocence. The State Court’s failure to

release Dunn was a violation of his 8th and 14th Amendment rights under the United

States Constitution and the Supreme Court precedent held in In Re Davis, supra. As

such, this Court has the authority to release Dunn because he has proven that he is

innocent.

POINT III

CHRISTOPHER DUNN’S RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT IS BEING VIOLATED EVERY MOMENT THAT HE REMAINS IN
PRISON. IT WOULD SHOCK THE CONSCIENCE OF EVERY REAONABLE
CITIZEN TO LEARN THAT CHRISTOPHER DUNN, A DEFENDANT WHO WAS
FOUND INNOCENT BY A COURT, REMAINS IN PRISON. See 8th & 14th Amend.
U.S. Const.

35
 Here, Judge Hickle, the Circuit Court judge of Texas County, Missouri, found

that he did not believe any jury would convict Christopher Dunn had it heard the

evidence that he heard during Christopher Dunn’s post-conviction proceedings. Judge

Hickle was constrained by Missouri precedent that an innocent man in the State of

Missouri can receive relief only when he either has met the gateway standard of

actual innocence and has an underlying constitutional claim, or the innocent man

has met the freestanding standard of actual innocence and is sentenced to death.

Unfortunately for Christopher Dunn, Dunn was not sentenced to death, but life in

prison, and, while Judge Hickle found that Dunn met the standard for both a

freestanding and gateway claim of actual innocence, Dunn had not presented a

meritorious underlying constitutional claim. Essentially, Judge Hickle was left with

the fact that he could not free Mr. Dunn based upon precedent, even though Judge

Hickle did not believe that Christopher Dunn murdered Ricco Rogers . See Appendix

A.

This is an affront to the purpose of our justice system, and it stands in direct

conflict with the United States Constitution. As was agreed upon by our founding

fathers in the preamble of the United States Constitution:

“We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defense, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.”

36
 It is beyond obvious and commonsense that an innocent man’s imprisonment

is in direct violation of the basic principles that the founding fathers agreed were to

be the heartbeat of the Constitution.

An innocent man’s imprisonment is exactly the purpose behind the last round

of protection that a criminal defendant has, which is the collateral attack and petition

for habeas corpus. In fact, Judge Henry Friendly specifically stated that all habeas

petitions should come with colorable claims of innocence. Friendly, Henry J. (1970)

“Is Innocence Irrelevant? Collateral Attack on Criminal Judgments.” University of

Chicago Law Review: Vol. 38: Iss. 1, Article 9, page 142. And Justice Harry Black was

clear that innocence was always a factor in his consideration of habeas petitions:

...the defendant's guilt or innocence is at least one of the vital considerations

in determining whether collateral relief should be available to a convicted
defendant… In collateral attacks ... I would always require that the convicted
defendant raise the kind of constitutional claim that casts some shadow of a
doubt on his guilt.

Kaufman v. United States, 394 U.S. 217, 235-36, 242 (1969) (dissenting opinion).

This Court has granted habeas relief solely based upon an Eighth Amendment

claim of cruel and unusual punishment when an underlying constitutional claim did

not exist. See e.g., Roper v. Simmons, 543 U.S. 551 (2005) (Execution of juveniles is

forbidden); Atkins v. Virginia, 536 U.S. 304 (2002) (Execution of the mentally

retarded is forbidden).

Here, Christopher Dunn has clearly established his innocence as set out in In

re Davis, supra. To deny him his right to liberty and to be free from cruel and unusual

punishment is an affront to our society and leaves everyone vulnerable to punishment

37
without guilt. County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708, 140

L. Ed. 2d 1043 (1998) (“Where a particular Amendment provides an explicit textual

source of constitutional protection against a particular sort of government behavior,

that Amendment, not the more generalized notion of substantive due process, must

be the guide for analyzing these claims.”). Moreover, a reasonable citizen’s conscience

would be shocked to learn that Dunn, proven innocent, still remains in prison.

Sacramento, 523 U.S. at 845-46 (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)

(When evaluating whether a governmental action violates a substantive due process

right, the threshold determination is whether the conduct “shocks the conscience.”

“The touchstone of due process is protection of the individual against arbitrary action

of government,” including protection against “the exercise of power without any

reasonable justification in service of a legitimate governmental objective…”).

There is no legitimate governmental objective to keep Christopher Dunn, an

innocent man, in prison. Therefore, this Court should exercise its habeas powers

pursuant to 28 U.S.C. 2241.

VII. CONCLUSION AND PRAYER FOR RELIEF

The country needs guidance as to whether a freestanding claim of actual

innocence indeed exists, what the standard is, and when that standard is met to prove

the freestanding claim. The state court in the case at bar found that Dunn presented

evidence that was new, internally consistent, and credible and that this evidence

proved that there is no jury that would have convicted Dunn had that evidence been

presented at Dunn’s trial. The court also ruled that it is more likely than not that any

38
reasonable juror would have reasonable doubt. As such, Mr. Dunn has proven himself

innocent and this Court should grant him habeas relief. His continued punishment is

a clear violation of his constitutional right to liberty and Eighth Amendment right to

be free from cruel and unusual punishment.

Respectfully submitted,

JUSTIN C. BONUS
Counsel of Record
Justin C. Bonus
Attorney at Law
118-35 Queens Blvd
Suite 400
Forest Hills, NY 11375
347.920.0160 voice
justin.bonus@gmail.com

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