2022.04.29 Filed Successive Petition

22-1892
UNITED STATES COURT OF APPEALS

EIGHTH CIRCUIT
MOTION FORA
SUCCESSIVE PETITION
CHRISTOPHER DUNN,
Petitioner,
-against-
Dock. No.
Dave Donnire,
Respondent.
PRELIMINARY STATEMENT
As was noted earlier, in the instant case new evidence has emerged, in addition to the
recantations, which make it likely that reasonable, 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.
'Lat ex rel. Dunn Y. Buckner, 17TE-CC00059 and SC99157, p. 19 (Sept. 23, 2020) (Judge William E.
Hickle). See Exhibit A.
Christopher Dunn is actually innocent of the murder of Rico Rogers. Significantly, Mr. Dunn's
declaration of innocence is not his own: it is Missouri Circuit Judge Hickle's determination after taking
testimony and reviewing all of the evidence. See 28 U.S.C. § 2244(6)(2)(B)(ii); In re Davis, 130 S. Ct.
1 (2009); see also Housev. 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.
A_ece,veo
See 28 U.S.C. § 2244(6)(2)(B)(i);. rate ex rel. Dunn v. 13ucknct, 17TE-CC00059 and SC99157 (.Citing
1 APR 2 9 2022
U.S. COURT OF AP
EIGHTH CIRCUPEAIT
LS
Appellate Case: 22-1892 Page: 1 Date Filed: 04/29/2022 Entry ID: 5152378
State ex rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo. bane 2011)). As the first recantation did not
occur until 2005, there is also cause and prejudice to allow review of Petitioner's due process claims.
ee Murray v. Carrier, 477 U.S. 478 (1986); State ex rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo.
bane 2011). Christopher Dunn has proven, with both old and new evidence which the jury never
heard, that he is actually innocent.
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 to prisoners who are not
sentenced to death. See In re Lincoln Y. Cassad~r, 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.• ee genetally Jonathan M. Kirshbaum, Actual Innocence after Friedman v .
Rehal: The. econd Circuit Pursues a New Mechanism for Seeking Justice ju Actual lnnoecence
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). 2
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
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 111ere corroborated f?y 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.
2 The State of Missouri must not be familiar with the United States Constitution, specifically the 8 th and 14th
Amendments, which do not permit unlawful seizures and hold that wrongful confinement (i.e., the incarceration of an
innocent person) is cruel and unusual punishment.
death. A judge has already heard this case and detennined that no reasonable juror would have
convicted Christopher Dunn had it heard such evidence. 3 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. Cf. Feather v. U nited States, 18 F.4th 982 (8 th Cir. 2021); D ansbv v. Hobb ,
766 F.3d 809 (8 th Cir. 2014); Cotnell v. i.'{, 119 F.3d 1329, 1334 (8 th Cir. 1997).
Here, either Christopher Dunn has proven a freestanding claim of actual innocence after a
hearing requiring his immediate release under the mandates of In re Davis, supra., or this Court should
allow Mr. Dunn to proceed to litigate his freestanding actual innocence claim because the evidence
before this Court meets the "extraordinarily high" bar.
PROCEDURAL HISTORY
1) The judgment of conviction was rendered in the St. Louis City Circuit Court, located at 10 N.
Tucker Blvd, St. Louis, Missouri 63101.
2) The cause number is 901-1555.
3) The sentence imposed was LIFE without the possibility of parole plus 90 years.
4) Christopher Dunn ("Petitioner") was convicted on July 18, 1991, of the following charges: first-
degree murder, in violation of § 565.020.1 RSMo 1986_, two counts of first-degree assault, in
violation of § 565.050 RSMo 1986, and three counts of armed criminal action, in violation of.§.
571.015 RSMo 1986.
5) The Petitioner pled not guilty.
6) The Petitioner had a jury trial.
7) The Petitioner did not testify.
8) The Petitioner filed a timely notice of appeal from the judgment of conviction.
3Specifically, Judge Hickle stated that he did not believe that any jury would convict Christopher Dunn after hearing the
evidence before him.
9) Petitioner also filed a timely Mo. Cr. Rule 29.15 motion pursuant to Missouri's then-existing
consolidated post-conviction review system. After a hearing, where the hearing court heard alibi
evidence and arguments regarding ineffective assistance of counsel, the lower court denied
Petitioner's motion.
10) On a consolidated appeal, the Missouri Court of Appeals, Eastern District remanded the matter
based upon Petitioner's Batson claim and affirmed Petitioner's conviction and the denial of his
post-conviction motion in State v. D unn, 889 S.W.2d 65 (Mo. App. E.D. 1994). Ultimately, the
Missouri Court of Appeals, Eastern District denied Petitioner's Batson claim as well. State v.
Dunn, 906 S.W.2d 388 (Mo. App. E.D. 1995). The following grounds were raised on direct
appeal:
a) The trial court erred in overruling his Batson motion without requiring the state to give
reasons for its strikes.
b) The court erred in overruling his objection to the state's comments in voir dire and plainly
erred in not declaring a mistrial sua sponte with respect to the state's comments in closing
arguments.
c) Challenged the lower court's reasonable doubt instruction and grand and petit jury panel
selection.
d) Petitioner asserted that the motion court erred in failing to inquire S11a sponte into counsel's
reasons for not filing an amended motion, in failing to make factual findings and legal
conclusions on all issues raised in his prose motion, and in adopting the state's proposed
findings verbatim.
e) Petitioner argued that the motion court erred in denying his motion for post-conviction
relief after an evidential:)' hearing because he was denied his right to effective assistance of
counsel in that his attorney failed to investigate and call certain alibi witnesses.
11) Petitioner did not petition the United States Supreme Court.
12) Petitioner's writ of habeas corpus pursuant to 28 U.S.C § 2254 before the United States District
Court for the Eastern District of Missouri under docket number 4:97-cv-0031 was denied on
March 27, 2000. The district court denied Petitioner's certificate of appealability. A writ of
certiorari was filed with the Supreme Court of the United States. This was denied as well.
13) Petitioner filed a writ of habeas corpus before the Circuit Court of Texas County, Missouri. The
original petition raised two claims: (a) a freestanding claim of actual innocence under State ex rel.
Amrine v. Roper, 102 S.W.3d 541 (Mo. Banc 2003) and (b) perjured testimony claim under
Napue v. Illinois, 360 U.S. 264 (1959). A hearing was held on May 30, 2018. After the hearing,
Petitioner filed a motion for leave to amend his petition to conform with the evidence that was
taken at the hearing. In the amended portion of his petition, he raised a claim involving the
State's suppression of exculpatory evidence under Brad1r v. Malyland, 373 U.S. 83 (1963). The
hearing court denied Petitioner's freestanding claim of actual innocence under the precedent set
by State ex rel. Lincoln v. Cassady. 511 S.W.3d 11 (Mo. App. W.D. 2016), wherein freestanding
claims of innocence do not apply to incarcerated inmates not sentenced to death, and found
that, while Petitioner submitted credible, newly-discovered evidence of innocence and that no
reasonable juror would convict him, he failed to prove that his constitutional rights were
violated. See Exhibit A.
THE CLAIMS BEFORE THIS COURT ON 2244
14) The hearing court determined that Christopher Dunn had met the standard for a freestanding
actual innocence claim, but that Missouri law bars its application to non-death sentenced
prisoners. This is an unreasonable application of Supreme Court precedent, and it violates
Christopher Dunn's rights under the 8th Amendment and 14th Amendment of the United States
Constitution. Therefore, this Court has the power to either immediately release Christopher
Dunn or remand the matter to the district court.
15) Alternatively, Petitioner has presented clear and convincing evidence of his innocence that
warrants the district court to hear his habeas petition. 28 U.S.C. § 2244(b)(2)(b)(ii).
POINT I
THE HEARING COURT DETERMINED THAT CHRISTOPHER DUNN

HAD MET THE STANDARD FOR A FREESTANDING ACTUAL
INNOCENCE CLAIM, BUT THAT MISSOURI LAW BARS ITS
APPLICATION TO NON-DEATH SENTENCED PRISONERS. THIS IS AN
UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT
AND IT VIOLATES CHRISTOPHER DUNN'S RIGHTS UNDER THE 8TH
AMENDMENT AND 14TH AMENDMENT OF THE UNITED STATES
CONSTITUTION. THEREFORE, THIS COURT MAY ACT NOW TO
RELEASE CHRISTOPER DUNN OR REMAND TO THE DISTRICT
COURT.
16) First, Petitioner adopts the factual finding of the Circuit Court of Texas County, Missouri. See
Exhibit A-A copy of tat x. rel. D unn v. Buckner, 17TE-CC00059 and SC99157 (Sept. 23,
2020) Gudge William E. Hickle) .
17) There is no constitutional right to an appeal or post-conviction hearing. Abneyv. United States,
431 U.S. 651,656, 97 S.Ct 2034, 2038 (1977). Having made the right to post-conviction
proceedings available, however, the state is obligated by the United States Constitution to avoid
impending 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 . upp.987)
(1985) .
18) Here, the habeas court in Missouri found that Dunn had presented evidence that was newly
discovered and that established his innocence. The habeas court specifically held it did "not
believe that any jury would now convict Christopher Dunn under these facts." State ·x
rel. D unn v. Buckner, 17TE-CC00059 and SC99157, p. 19.
19) The State of Missouri's denial of habeas relief to an innocent man is a violation of the 8th
Amendment and runs afoul of Article 1 Section 9, Clause 2 of the United States Constitution in
that the State of Missouri is suspending habeas corpus relief that is due to Dunn.
20) Moreover, contrary to the belief that the Supreme Court has not held that there exists a
freestanding actual innocence claim that warrants relief, In re D avis, 557 US at 952 (2009) stands
for the proposition that a petitioner who files a petition for a writ of habeas corpus is entitled to
relief based upon "evidence that could not have been obtained at the time of trial [which] clearly
establishes petitioner's innocence."
21) Courts around the country, since H errera v. Collins, 506 U.S. 390, 417 (1993), have grappled
with the standard of a freestanding claim of actual innocence. There appear to be two prevailing
standards that are essentially the same: "clear and convincing" and "clearly or unquestionably
established."People v . Hamilton, 115 A.D.3d 12, 15,979 N.Y.S.2d 97, 109 (NY.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) 4; 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. Cornm'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 H ardv, 41 Cal. 4th
977, 1016 (Cal. Sup. Ct. 2007) (California's standard for actual innocence is that the evidence
4 See also People v. Diijrs, 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,].); People v. \Vheeler-Whichru:d, 25 Misc. 3d 690 (Sup. Ct., Nassau Co.
2009) (McKay,].); People v. Bccmudcz, 2009 N .Y. Misc. LEXIS 3099 (Sup. Ct., N.Y. Co. 2009).
must undermine the entire prosecution's case and point unerringly to innocence or 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. m.t-i.ne-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").
22) 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.
Cornell v. ix, 119 F.3d 1329, 1334 (8 th Cir. 1997). And while the standard is more demanding,
this Court has held that freestanding actual innocence claims are available to non-death
sentenced defendants. Feather v. United States, 18 F.4th 982 (8 th Cir. 2021); Cornell v. Nix, 119
F.3d 1329, 1334 (8 th Cir. 1997).
23) Here, the Circuit Court judge in Missouri found that Christopher Dunn's evidence was new and
that the evidence of innocence was corroborated and credible. See generally Exhibit A.
24) The Circuit Court ruled that no reasonable juror 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 14 th 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 II
ALTERNATIVELY, PETITIONER HAS PRESENTED CLEAR AND

CONVINCING EVIDENCE OF HIS INNOCENCE THAT WARRANTS THE
DISTRICT COURT TO HEAR HIS HABEAS PETITION. 28 U.S.C. §
2244(b)(2)(B)(i), (ii).
25) Mr. Dunn repeats and realleges each and every allegation set forth above with the same force
and effect as though set forth herein at length.
26) We respectfully request that this Court adopt the findings of the State Circuit Court in the case
at bar. See Exhibit A. Here, the hearing court found that no reasonable juror would have
convicted Petitioner with the evidence presented to the hearing court; i.e. that there was clear
and convincing evidence of Dunn's innocence. 28 U.S.C. § 2244(b)(2)(B)(ii). The hearing court
also found that there was evidence presented to the court that could not have been produced
with due diligence, thereby rendering that evidence new. 28 U.S.C. § 2244(b)(2)(B)(i). As such,
this petition is ripe for the district court's review.
27) The hearing court found the following (See Exhibit A):
a. The hearing court found the testimony of eyewitness Eugene Wilson both
independent and credible.
b. The recantations were bolstered by independent evidence that the hearing court
deemed credible. In fact, at the very least, the hearing court found that Demorris
Stepp was a proven liar. The hearing court found that Michael Davis's recantation
was corroborated by Eugene Wilson, an independent eyewitness who testified that
neither Davis nor Stepp could have witnessed the crime 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, Curtis Stewart, the alibi witnesses, and the
testimony of the deceased's brother, Dwayne Rogers, 5 that he presented in his
Missouri Rule 29 .15 in the 1990's prior to his direct appeal.
28) As such, this Court should grant Mr. Dunn's motion to file a successive habeas petition under 28
U.S.C. § 2244(b)(2)(B).
29) There is no other litigation in state or federal court in this matter.
30) Petitioner has no other future sentence to serve after the completion of the sentence he is now
serving.
Wherefore, based on the facts and the law, Petitioner's right to due process was violated when
the State Court failed to release him based upon his freestanding claim of actual innocence after he
proved that no reasonable juror would convict him with the evidence before the hearing court. We
respectfully request that the Court exercise compassion and remedy this injustice by either releasing
Petitioner immediately or allowing Petitioner to file a successive petition and remand this matter to
the District Court to adjudicate the evidence that demonstrates Mr. Dunn's newly discovered evidence
and actual innocence.
DATED: APRIL 29, 2022 Respectfully Yours,

FOREST HILLS, NY
.
Isl Tustin Bomrs
JUSTIN C. BONUS, ESQ.
ATTORNEY FOR CHRISTOPHER DUNN
118-35 QUEENS BLVD., SUITE 400
FOREST HILLS, NY 11375
JU TIN.BONUS@GMAIL.COM
347.920.0160
5 Dwayne Rogers testified that Petitioner was not the man who had killed Rico Rogers, his brother, and that Dwayne
knew the identity of the actual killer.
10

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22-1892

UNITED STATES COURT OF APPEALS

heard, that he is actually innocent.

Cty. Sup. Ct. 2003). 2

before this Court meets the "extraordinarily high" bar.

Tucker Blvd, St. Louis, Missouri 63101.

2) The cause number is 901-1555.

571.015 RSMo 1986.

5) The Petitioner pled not guilty.

6) The Petitioner had a jury trial.

7) The Petitioner did not testify.

reasons for its strikes.

violated. See Exhibit A.

THE CLAIMS BEFORE THIS COURT ON 2244

prisoners. This is an unreasonable application of Supreme Court precedent, and it violates

Dunn or remand the matter to the district court.

THE HEARING COURT DETERMINED THAT CHRISTOPHER DUNN

2020) Gudge William E. Hickle) .

rel. D unn v. Buckner, 17TE-CC00059 and SC99157, p. 19.

establishes petitioner's innocence."

innocence that undermines confidence in the correctness of the judgment. Unfortunately,

F.3d 1329, 1334 (8 th Cir. 1997).

Dunn because he has proven that he is innocent.

ALTERNATIVELY, PETITIONER HAS PRESENTED CLEAR AND

and effect as though set forth herein at length.

this petition is ripe for the district court's review.

independent and credible.

was corroborated by Eugene Wilson, an independent eyewitness who testified that

the time of the shooting.

Missouri Rule 29 .15 in the 1990's prior to his direct appeal.

29) There is no other litigation in state or federal court in this matter.

and actual innocence.

DATED: APRIL 29, 2022 Respectfully Yours,

knew the identity of the actual killer.

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