Defendant Denied Relief Under Innocence Protection Act

US v. Jordan, No. 08-1431, 2/11/10 - Defendant was convicted of assaulting and murdering a fellow inmate with a shank one afternoon in the recreation yard at Florence. Two eyewitnesses identified him as the stabber, and several more saw him chase the victim after the stabbing and then throw the shank on a roof. There was DNA on the shank, as well as on a glove found in the prison yard. None of it was defendant's. The 10th affirmed the convictions on direct appeal.

Defendant then filed a motion for DNA testing pursuant to the Innocence Protection Act (IPA)and another for preservation of trial evidence. The district court denied the IPA motion because defendant did not show that his proposed method off testing was substantially more probative than the prior testing method, and because the proposed testing would not produce new material evidence that would raise a reasonable probability that defendant did not commit the offenses. The 10th affirmed, addressing only the latter issue. There was no chance that additional DNA testing would in any way exculpate defendant; the most it could do is prove that someone else had handled the shank, which would make no difference, especially since the eyewitnesses identified defendant as the stabber and defendant admitted at trial that he himself handled the shank and threw it on the roof. As for the evidence preservation motion, the district court originally denied it, but then granted the same request defendant made in a separate 2255 action, so the 10th dismissed this issue as moot.

Lucero concurred in the opinion, and wrote separately to state his view of the proper standard of review. Analogizing to Brady claims, he sees the reasonable probability test as a mixed question of law and fact, but the ultimate question of whether defendant is entitled to relief under the IPA should be reviewed de novo.