Cedar Falls, Halloween night, 1975
Leslie and Jorjean Mark and their two children were
shot to death as they slept at their rural home. Leslie Mark's
brother, Jerry Mark, 32, was convicted of the deaths.
Jerry Mark files another appeal of 1976 murder conviction
By Jeff Reinitz - Wcfcourier.com
December 26, 2007
CEDAR FALLS - Fresh off a defeat in the U.S. Court
of Appeals, Jerry Mark is asking an Iowa court to declare his 1976
murder trial unfair.
Mark, 64, is serving life in the Iowa State
Penitentiary in Fort Madison in the shooting deaths of his brother and
sister-in-law and their two children in their rural Cedar Falls
Authorities said Mark, who lived in California,
drove his motorcycle to Iowa to commit the crime Nov. 1, 1975, because
of an inheritance dispute and then returned to the West Coast.
Mark continues to deny any involvement in the
slayings and came within inches of getting a new trial last year.
"I am innocent. I did not shoot my brother, Les,
and his family, and I come before the court claiming actual
innocence," Jerry Mark said in his most recent application for
post-conviction relief filed in Black Hawk County District Court.
An earlier appeal was based on the fact prosecutors
and the court had failed to hand the defense certain pieces of
evidence that contradicted the state's case.
That appeal first garnered an order for a new trial
in U.S. District Court in September 2006, but the decision was
reversed - and the conviction upheld - in August 2007 after it was
appealed to the U.S. Eighth Circuit Court of Appeals.
Mark's new challenge focuses on developments in
forensic science which he claims debunks and raises questions about
evidence used to convict him during his 1976 trial.
Witnesses had told jurors that saliva found on
cigarette butts discovered at the crime scene had been smoked by
someone with Type O blood, which Mark has.
DNA analysis hadn't been developed at the time of
the trial, and 40 percent of the population also has Type O.
In the 1990s, after DNA testing became available,
the butts from the farmhouse were examined and excluded Jerry Mark as
Also during trial, prosecutors introduced evidence
that lead from the fatal bullets was similar to other bullets of the
same caliber on the shelf of a California store where Jerry Mark had
purchased ammunition before the murders.
That science has since come under fire, and in
2005, the FBI Laboratory permanently discontinued bullet lead analysis
after the National Research Council expressed concerns over
interpretation of test results.
Mark said in court records the bullet analysis from
his trial was misleading and the cigarette butt testimony was improper
He is asking the court to rule the 1976 trial was
unfair and to overturn the jury's verdict and release him from prison.
Mark is asking the court to order additional DNA
testing on two cigarette butts where he has not already been
eliminated as the smoker. Earlier DNA tests were unable to develop a
profile, records state.
He is also seeking DNA tests for other evidence
found at the farmhouse including fingernail scraping from Les and his
wife, the wife's nightgown, bedding, the interior of two leather
gloves and two condoms.
He believes the results will show there is no
evidence he was at the house and described one of the mystery
cigarette butts - one found in the daughter's room - as pivotal.
"It alone will prove my innocence," Mark said in
Other evidence against Mark includes the fact he
initially lied to police about the route of a motorcycle trip and his
purchase of a box of rare .38-caliber Long Colt bullets in California
a month earlier.
Mark said he initially misled police about his trip
because he didn't want his girlfriend to know he took a female
hitchhiker to Wyoming, but he denied ever entering Iowa.
Witnesses put him within 30 miles of Cedar Falls,
and he said he purchased the bullets to form connections with Weather
Underground radicals for a book he planned to write.
Jerry Mark case back in court
June 12, 2007
OMAHA, Neb.(AP) - Attorneys are again arguing the
fate of a man who was convicted of killing his brother's family three
decades ago but had the conviction overturned last year.
Jerry Mark, 63, was convicted in 1976 of killing
his brother, sister-in-law and their two children in their Cedar Falls
home. A judge ruled last September that the state should either retry
or release Mark because prosecutors withheld evidence from his
It prompted an appeal from prosecutors, who argued
their case Monday in the 8th Circuit Court of Appeals.
Mark, a law-school graduate, has spent the last 30
years in prison for allegedly riding his motorcycle from his home in
Berkley, Calif., and killing the family on Nov. 1, 1975, because of a
disagreement over inheritance of the family farm.
He remains in prison pending the court's ruling.
Mark is accused of killing his brother Leslie Mark,
his brother's wife Jorjean and their children - 5-year-old Julie and
Defense attorney Paul Rosenberg argued Monday that
DNA evidence that could play in Jerry Mark's favor was withheld during
the trial, preventing him from receiving a fair trial. Rosenberg
questioned the accuracy of witness testimony and whether the crime
scene was secure for the investigation.
"The place was a mess, everyone was smoking - in
styrofoam cups, everywhere," he said. "… It was Jerry Mark that was
trying to get to the truth and the state stood in the way."
Assistant Attorney General Bob Ewald said there
were several other pieces of evidence that led to the conviction,
including the fact that Jerry Mark bought bullets before the slayings.
Jerry Mark's appeals twice reached Iowa's appellate
courts - the Iowa Supreme Court in 1979 and the Iowa Court of Appeals
in 1997. Each of those appeals ended with the conviction being upheld.
Then last fall U.S District Court Judge Donald
O'Brien overturned the conviction, ordering authorities to retry or
release Jerry mark.
The appeals court will consider the evidence and
make a ruling later.
Judge: Cain and Abel murder trial unfair
Iowa prosecutors hid facts in '75 slayings, federal
McRoberts and Maurice Possley - ChicagoTribune.com
September 2, 2006
A federal judge
has ordered Iowa authorities to retry or release a man convicted of
one of the most notorious slayings in the state's history--the murder
of a Cedar Falls farmer, his wife and two young children more than 30
The judge ruled
this week that Jerry Mark, a former Peace Corps volunteer and
self-described hippie lawyer, was denied a fair trial because
prosecutors and the trial judge withheld key evidence that could have
proven Mark's innocence.
included testimony from eyewitnesses that suggested Mark was hundreds
of miles away when his brother, Les Mark, and his family were slain in
the farmhouse that had been passed down for generations. In some
instances, prosecutors hid the identity of people who contradicted
their witnesses, according to the ruling.
District Judge Donald O'Brien found that the failure of the state to
turn over more than 50 pages of investigative reports was a "gross"
and "flagrant" violation of the prosecutors' duties.
"This court is
not ruling that Mark is not guilty of the crimes," O'Brien wrote,
"only that in a careful detailed review of the cumulative effect of
all the evidence that was not disclosed, Mark did not receive a fair
He was convicted
in 1976 and sentenced to life in prison for the gunshot slayings, in
which Les and Jorjean Mark's 5-year-old daughter and 18-month-old son
were both shot in the chest and head. Prosecutors invoked the biblical
brothers Cain and Abel, contending at Jerry Mark's trial that he had
told a friend: "My little brother screwed me out of my farm."
who found the bodies of her younger son and his family at dawn on Nov.
1, 1975, said in an interview that she had been expecting a favorable
ruling. "We were sure that Jerry was innocent," said Mark, who heard
news of the ruling when her surviving son called from prison Thursday
night. "We thought the judge, when he studied the case, he would rule
in Jerry's favor."
attorney general's office, which is handling the case for the state,
said it would appeal the decision to the 8th U.S. Circuit Court of
Appeals. "We are disappointed in the decision," said Bob Brammer,
spokesman for the attorney general's office. "Mark will remain in
prison . . . during any appeal."
Mark's trial prosecutor who now is in private practice, declined to
comment, saying he was "ethically prohibited from commenting on a
matter in litigation."
The case against
Mark was circumstantial. It featured eyewitness testimony supporting
the theory that he had driven his motorcycle from his home in
California to the farm, committed the murders, then fled.
going on a road trip, but contended he never reached Cedar Falls. In
granting a new trial, O'Brien ruled that prosecutors and the judge
never gave Mark's lawyers reports of witnesses who supported his
account. Some of those witnesses told authorities they saw Mark
hundreds of miles west, traveling toward the crime scene after the
One of them,
Jean Doyle, "would have been an important witness for Mark as she
would have testified that she saw him arriving from the west, and
traveling east, and she witnessed all of this on Saturday morning,
Nov. 1, after the murders had occurred 540 miles away."
co-counsel in his appeals, Jim Cleary, agreed that various witnesses
support his client's alibi, including a waitress in western Nebraska
who said she saw him a few hours after the murders. "If he was in
North Platte, Neb., on Saturday morning, it would've been physically
impossible for him to be [at the farm] at the time the crimes were
committed," Cleary said.
Among the other
withheld reports were those that undermined state witnesses, including
one person whose memory had been impaired by the removal of a brain
tumor 10 years before the crime. Other reports included widely
different descriptions of the clothes Mark was wearing while allegedly
fleeing on his Honda motorcycle. "You cannot get that many sets of
clothes into this motorcycle. To not turn over these exhibits was a
violation," the judge wrote.
attorneys also never saw a report that cast doubt on a prosecution
claim that a shoe print found at the crime scene was left by Mark.
The case against
Mark also rested on forensic evidence that has since been overturned
or otherwise called into doubt. So if the case is retried, prosecutors
will have far less forensic evidence to present.
For instance, at
the original trial, the state said blood typing tests found that
saliva on a cigarette butt inside the farmhouse matched Mark's blood
type, O. But subsequent, more precise DNA tests two years ago
definitively excluded Mark.
used a technique that compared bullet lead at the scene to lead in
bullets purchased by Mark. The process, known as comparative bullet
lead analysis, has been found to be flawed and unreliable.
The case has
long been contentious. During a postconviction hearing, one of Mark's
trial attorneys testified that obtaining information from the
prosecution "was like tooth and nail. You couldn't get anything out of
them," according to O'Brien's ruling. "Nobody volunteered anything."
At the same
time, prosecutors repeatedly have contended they acted properly and
turned over everything required of them. But O'Brien was unconvinced.
He said those claims were "self-serving" and that the evidence showed
"They did not
actually do what they swear they did," he wrote.
DNA undercuts verdict in infamous Iowa case
Key fact disproved in chilling 1975 'Cain-Abel'
massacre of family, yet circumstantial evidence remains strong
McRoberts and Steve Mills - ChicagoTribune.com
April 11, 2005
CEDAR FALLS, Iowa
— In the days after Dorothy Mark found her son, daughter-in-law and
their two children murdered, neighbor after neighbor came to her
bearing casseroles, pies and assurances.
No matter what
police suspected, they said, there was no way Jerry Mark, one of her
three surviving sons, could have broken into the family farmhouse
under the cover of a harvest night in 1975 and committed what remains
one of Iowa's most notorious crimes.
But the sympathy
soon curdled into something darker. Folks began coming to her door
with uglier messages, like how vigilantes would shoot Jerry if he
showed himself in public.
now 87 but still tough and blunt, doesn't fault them.
"It was not a
vindictive thing," she said one recent evening, sifting through family
photographs. "They were just scared out of their holy skins."
decades after Jerry Mark, a former Peace Corps volunteer and
self-described hippie lawyer, was convicted of the slayings, the fear
that choked this college town and farming community is gone. But the
case refuses to go away.
After years of
failed appeals, his fight for release received its most significant
boost when the state crime lab reported recent DNA test results. They
exclude him from saliva found on cigarette butts recovered from
several rooms in the farmhouse--the only physical evidence the state
had to link Jerry Mark to the crime scene.
in forensic science also have undermined other elements of a
prosecution that always was circumstantial. Last month, the FBI
disclosed that a key discipline used to convict Mark--bullet-lead
analysis--was so flawed that it has stopped using it.
Still, the Iowa
case serves as a reminder that even DNA's famous precision can leave
Mark's genetic profile was not found on crucial physical evidence,
does that negate the suspicious actions that led to his arrest and
evidence remains that Mark, now a 62-year-old grandfather being held
at the state prison in Ft. Madison, killed his brother Les, Les' wife,
Jorjean, and their children in an alleged dispute over the family
Not only did he
lie to investigators about a motorcycle trip he took around the time
of the murders, but he also bought a box of bullets in California
whose uncommon round--.38 Long Colt--matched bullets found at the
As Mark put it in
late February at the prison: "Here's why I got convicted. I lied to
the cops, and I bought the bullets."
The case shows
that some doubts never can be purged. This one may always be seen
through starkly different prisms--one of circumstantial evidence, the
other of forensics.
a tidy explanation for the bloody scene that Dorothy Mark and her
neighbors stumbled upon at dawn on Nov. 1, 1975. Jerry and Les Mark,
they reasoned, were akin to the biblical brothers Cain and Abel, with
the bad son of Adam and Eve slaying the good son.
and jurors, it wasn't a stretch. After stints in the Peace Corps in
Brazil and as a legal-aid lawyer, Jerry Mark moved to Berkeley,
Calif., and soon immersed himself in the radical left and the city's
He and his
girlfriend lived just blocks from where the Symbionese Liberation Army
kidnapped newspaper heiress Patty Hearst in 1974.
"It was an
exciting, scary, wonderful time," Mark recalled.
By contrast, Les
Mark, who was seven years younger than Jerry, had stayed home in Iowa
to farm the family's 1,200 acres of corn and soybeans. He married
Jorjean Colthurst, his college sweetheart at the University of
Northern Iowa in Cedar Falls, and had two children.
Not long before
the murders, the couple took over the family farm from the brothers'
ailing father, Wayne, settling into the 17-room house that had been in
the Mark clan for generations.
The move was
central to prosecutor David Dutton's theory of the crime. Invoking the
jealousy that led Cain to kill Abel, Dutton asserted at Jerry's trial
that he had told a friend in California: "My little brother screwed me
out of my farm."
To this day,
Jerry Mark maintains his innocence and says he always loved Les and
Les' children. But some powerful circumstantial evidence is difficult
In the days
before the murders, Mark left his apartment in Berkeley for a road
trip on his newly purchased Honda motorcycle. He and prosecution
witnesses disagreed on just how close to Cedar Falls he ended up, but
the timing of his long-distance trip east remains suspicious.
When a police
officer questioned him after the murders, he lied about his route. He
now says he did so to keep his girlfriend from finding out that he had
picked up a hitchhiker on the way out of Berkeley, had sex with her
and dropped her off in Wyoming, instead of driving to Southern
California as he had told his girlfriend.
United States Court of Appeals
For the Eight Circuit
Mark v. Ault
Jerry MARK, Appellee/Cross-Appellant,
John AULT, Appellant/Cross-Appellee, Warden Herb Maschner; Warden Ken
Nos. 06-3476, 06-3513
August 16, 2007
Before MELLOY, SMITH and GRUENDER, Circuit Judges.
Counsel who presented argument on behalf of the
appellant/cross-appellee was AAG Robert P. Ewald, Des Moines,
Iowa.Counsel who presented argument on behalf of the
appellee/cross-appellant was Paul Herschel Rosenberg, Des Moines,
An Iowa jury convicted Jerry Mark (“Mark”) on four
counts of first-degree murder in 1976. Following unsuccessful state
appeals and postconviction proceedings, Mark filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. After denying Mark's
motion to expand the record, the district court granted his petition
for writ of habeas corpus. Warden John Ault appeals the district
court's grant of Mark's petition, and Mark cross-appeals its denial of
his motion to expand the record. For the reasons that follow, we
affirm the district court's denial of Mark's motion to expand the
record and reverse its grant of his petition for writ of habeas
On November 1, 1975, between 1:00 a.m. and 3:00
a.m., four persons were shot to death in their home at the Leslie Mark
farm in Black Hawk County, Iowa. The four victims, all of whom were
related to Mark, were Leslie Mark, Mark's brother, Leslie's wife
Jorjean, their five-year-old daughter Julie and eighteen-month-old son
Jeffery. Mark was charged with four counts of first-degree murder
and tried in Iowa District Court for Woodbury County. After a jury
trial in which Mark did not testify, he was convicted on all four
counts and subsequently received a sentence of life imprisonment.
On direct appeal, the Iowa Supreme Court concluded
that the jury could have determined that the following events
On October 3, 1975, [Mark] purchased a white helmet
and a used 450cc Honda motorcycle somewhere near his residence in
Berkeley, California. The motorcycle was dark brown in color, had a
windshield and leg protectors and a luggage box on the back.
[Mark] also owned an Iowa registered 100cc Honda
motorcycle. At sometime prior to November 1, 1975, he removed the
Iowa license plate from his 100cc Honda and put the plate on the 450cc
On October 20 [Mark] purchased one box of fifty .38
caliber Winchester Western Long Colt bullets manufactured in 1975,
using his Iowa driver's license for identification, from Ken's Sport
Shop in Paso Robles, California. He had access to a pistol capable
of firing these bullets.
On October 28 [Mark] bought a black Belstaff riding
suit and a pair of motorcycle gloves from a Honda dealership in
Jerry Mark left his apartment in Berkeley on the
morning of October 29 on his 450cc motorcycle. He traveled through
Lovelock, Nevada, on Interstate 80. He proceeded on Interstate 80
through Cheyenne, Wyoming, to Chappell, Nebraska, arriving there on
the morning of October 31. [Mark] continued east toward Iowa stopping
at a Stuckeys Pecan Shoppe in Brady, Nebraska. He left Brady and
traveled to Atlantic, Iowa, stopping at the Shamrock Cafe. Mark then
proceeded to Newton, where he was observed at another Stuckeys Pecan
Shoppe. After leaving Newton, [Mark] traveled north to Ackley,
stopping at a Holiday gas station at approximately 8:00 p.m. on
October 31. Ackley is only 36 miles from the Leslie Mark farm, which
is located just west of Cedar Falls, Iowa, on Union Road.
Jerry Mark left Ackley after getting gas and later
was at the Leslie Mark farm in the early morning hours of November 1.
He cut the wires in the telephone terminal box located across the road
from the Leslie Mark farmhouse. In the process he dropped two .38
caliber Long Colt bullets on the ground. He then walked up the
driveway to the Mark residence. He walked past the house to a
camper, in which Leslie occasionally slept after unloading corn into
his storage bin. He returned to the house and using the key that
normally hung by the back door, entered the house. At sometime he
went to the basement, turned off the power and while there smoked two
Jerry Mark proceeded to Leslie's and Jorjean's
bedroom, located on the main floor of the house. He shot each of
them, Leslie five times, four times in the head and once in the
stomach, and Jorjean four times, twice in the head and once in the
back, with another shot simply grazing her skin. The wounds were
fatal to each.
[Mark] also made his way upstairs to Julie Mark's
bedroom. He fatally shot Julie twice, once through the heart and
once through her right eye. While in her room, he smoked another
[Mark] also went to Jeffery Mark's bedroom and shot
the infant two times, once in the left chest and once above the right
eye, killing him.
Jerry Mark left the farm and was next observed in
Williams, Iowa, sixty-six miles west of the Mark farmhouse, at
approximately 5:00 a.m. on November 1. At 7:30 a.m. he was seen in
Stuart, Iowa, and between 3:00 and 4:00 p.m. he called his residence
in California from Alda, Nebraska.
State v. Mark, 286 N.W.2d 396, 401 (Iowa 1979).1
On direct appeal, Mark claimed that the State suppressed numerous
pieces of material exculpatory evidence in violation of his due
process rights. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963). The Iowa Supreme Court affirmed Mark's
conviction and sentence. Mark, 286 N.W.2d at 414.
Receiving no relief on direct appeal, Mark filed a
petition for postconviction relief (“PCR”) in the Iowa District Court
for Black Hawk County based on his claim that the State suppressed
material exculpatory evidence in violation of his due process rights.
The district court denied Mark's PCR petition, holding that “[a]fter
considering the many claims that exculpatory evidence was wrongly
withheld, both individually and collectively, this court is satisfied
that there is no reasonable probability that the results of the trial
would have been different had the material been disclosed.” Mark v.
State, No. PCCV069121, slip op. at 50 (Iowa D. Ct. Black Hawk County,
Feb. 3, 1995).
On appeal of the denial of Mark's PCR petition, the
Iowa Court of Appeals addressed in detail each of Mark's Brady claims,
which it arranged into six categories. The first category of
evidence related to witness Jean Doyle. Doyle, who did not testify
at Mark's trial, had made a tentative identification placing Mark at a
truck stop in North Platte, Nebraska, at noon on Saturday, November 1.
Mark claimed that this statement was not disclosed and was material
because it is inconsistent with his guilt. Specifically, since it
had been established at trial that it would take a person
approximately eleven-and-a-half hours to drive from the Leslie Mark
farm to North Platte and because the murders occurred between 1:00 a
.m. and 3:00 a.m., the murderer could not have been at the truck stop
in North Platte until between 12:30 p.m. and 2:30 p.m. According to
Mark, since Doyle saw him at noon, the evidence tended to show that he
was not the murderer. The Iowa Court of Appeals held that this
evidence was not suppressed because investigators had informed Mark
during his interrogation that there was a “lady in North Platte” who
could identify him and one of the investigating agents testified in
his deposition about the details of Doyle's statements. Thus, Mark
“knew or should have known” of this evidence. Mark v. State, 568
N.W.2d 820, 823 (Iowa Ct.App.1997).
The second category of evidence analyzed by the
Iowa Court of Appeals concerned four cigarette butts that were found
at the crime scene. Mark claimed the State suppressed results of
blood testing conducted on saliva from the cigarette butts and the
possibility that the cigarette butt in Julie Mark's room was not a
Marlboro brand cigarette. The Iowa Court of Appeals summarized the
blood-test evidence as follows:
Criminalist Robert Harvey testified [at trial] that
tests indicated all four cigarettes [found at the crime scene] were
smoked by a person with type-O blood. Mark's blood was type-O and he
also smoked Marlboro cigarettes. However, before trial it was
discovered that the cigarette in the upstairs room was smoked by
Deputy James Weiser whose blood type was type-A. In a March 1976
memorandum, prosecutor Harry W. Zanville acknowledged that Harvey
informed him it was “not uncommon for a small saliva sample taken from
a type-A secretor to have a type-O test result.” Harvey's
postconviction testimony confirms this assertion. This document and
other reports concerning the cigarette butts were not produced by the
Id. The Iowa Court of Appeals held that this
evidence was not material and would not have affected the outcome of
the trial because it was “cumulative of other testimony informing the
jury that the cigarette butt evidence had questionable probative
value.” Id. at 823-24. As for the cigarette butt found in Julie
Mark's room, the Iowa Court of Appeals held that because it “was
available for inspection by the defense” prior to trial, “Mark was
aware that it had been smoked down to the filter and may not have been
a Marlboro.” Id. at 824. The court also held that “Mark has not
shown a reasonable probability that the outcome of the trial would
have been different had any of these reports been disclosed.” Id.
The third category of evidence concerned witness
Leslie Warren. The Iowa Court of Appeals explained the significance
of the Warren evidence as follows:
Both the defense and the State agreed at trial that
Leslie Warren, a maintenance employee at an eastbound rest area in
Chappell, Nebraska, saw Mark at the rest area. However, the parties
dispute whether Warren saw Mark on October 31 or on November 1. The
murders took place on November 1 between 1:00 and 3:00 a.m. If Mark
was seen in Chappell on the morning of Friday, October 31, he could
have traveled further east and arrived at the Leslie Mark farm by the
time of the murders. Thus, this fact would be consistent with guilt.
If Warren saw Mark the morning of November 1, this information would
have established an alibi for Mark given the time of the murders and
the distance, approximately 684 miles, between the Leslie Mark farm
Id. at 824. At Mark's trial, Warren testified
that he knew he had seen Mark on Friday, October 31, as opposed to
Saturday, November 1, because he had a doctor's appointment on
November 1 and was therefore not at work on that morning. Mark
claimed that the State suppressed medical records from Warren's doctor
that were stamped with the date of October 31, indicating that Warren
was not at the doctor and was instead at work on November 1. Mark
argued there is a reasonable probability that had the information been
disclosed, the result of the trial would have been different. Mark
also claimed the State failed to obtain Warren's work-related
documents and his diary establishing the date of Warren's appointment
even though the State knew of their existence. The Iowa Court of
Appeals rejected these arguments, holding that “the defense knew or
should have known about the existence of the medical report. There
is no indication that the defense could not have obtained this
information from [the doctor's] office.” Id. Noting that the weight
of the work-record evidence supported the State's theory that Warren
visited the doctor on Saturday, November 1, the court concluded that
the evidence “would not have had an impact on the outcome of the
Mark also claimed that the State suppressed a
fourth category of material evidence relating to shoe prints found at
the crime scene. At trial, Officer Robert Anton testified that the
shoe prints found at the crime scene indicated that the murderer had a
shoe length of twelve inches. He also told the jury that the pattern
of the sole from the shoe prints indicated that the type of shoe worn
by the murderer was the Converse brand shoe called “Indy 500.”
Officer Anton measured a pair of size eleven Converse Indy 500 shoe;
one shoe was eleven and seven-eighths inches long and the other was
twelve inches long. He also stated that of a pair of size
eleven-and-a-half Converse Indy 500 shoes, one of the shoes measured
twelve inches and the other measured twelve and one-eighth inches.
Officer Anton relayed to the jury that when he had Mark try on the
size eleven and the size eleven-and-a-half shoes, Mark complained of
the former not “fitting properly” but that the latter fit “rather
well.” Two podiatrists also testified at trial, both concluding that
Mark had the same unusual, if not unique, combination of gait
characteristics as those exhibited by the shoe prints found at the
crime scene. The actual shoes worn by the murderer were never
Mark claimed that the State suppressed police
reports indicating the shoe prints found at the crime scene “showed
slight deformity to outside rear edge of both heels” and a report
indicating that a pair of shoes fitting Mark properly had a sole
longer than the crime scene prints. The Iowa Court of Appeals held
that this evidence was not suppressed because both were “known and
addressed at trial.” Id. at 826. Mark also claimed that other
reports were suppressed that indicated several models of tennis shoes
could have matched the crime scene prints. The Iowa Court of Appeals
held that these reports “would not have had an impact on the outcome
of the trial” because it “did not demonstrate Mark was incapable of
making the prints, rather only establish several sizes and brands of
shoes could have made the prints.” Id.
Fifth, Mark claimed that the State suppressed
material evidence that .38-caliber Winchester Western Long Colt
bullets, like the ones used in the murders, were available for sale in
northeast Iowa. At trial, the State had argued that this type of
bullet was not readily available in Iowa and that Mark had purchased
this rare type of bullet in California. Mark claimed that an
undisclosed police report revealed that a partial box of .38-caliber
Winchester Western Long Colt ammunition was obtained by police from
Olson's Boathouse in Waterloo, Iowa, within a week of the crime.
Although Mark admitted he knew about the box, he claimed he was not
informed that there were thirteen bullets missing from the box of
fifty. The Iowa Court of Appeals held that this evidence was known
by Mark, not exculpatory because sixteen, not thirteen, bullets were
found at the crime scene, and did not create a reasonable probability
that it “would have influenced the verdict.” Id.
The sixth and final category of evidence Mark
claimed was suppressed in violation of Brady concerned seven other
witnesses. The first witness, Donald Shearer, testified in his
deposition and at Mark's criminal trial that he saw Mark at a
Stuckey's roadside store in Brady, Nebraska, around noon on Friday,
October 31. Shearer's testimony was consistent with the
prosecution's theory of the route traveled by Mark on his way to the
murder scene. Also, both in his deposition and at trial, Shearer
referred to a man named Larry Holmes, who was also at Stuckey's and
who attended to Mark on that day. Mark argued that the State
wrongfully suppressed the report summarizing its interview with
Holmes. The report stated that Holmes “did not personally remember
seeing anything or viewing anyone who appeared to him to be out of the
ordinary.” With respect to this claim, the Iowa Court of Appeals
held that “[t]he defense learned of Holmes' identity during Shearer's
pretrial deposition. Mark also has not shown a reasonable
probability the omissions in Shearer's initial statements to police
would have affected the outcome of the trial.” Id. at 825.
Mark next asserted that undisclosed police reports
would have enabled him to discredit the testimony of Karelyn Kemp and
Mary Stinson, two employees at the Shamrock Café in Atlantic, Iowa,
who testified they saw Mark in the café around 6:00 p.m. on October
31. Another undisclosed report revealed Stinson, contrary to her
trial testimony, told police she saw Mark in the café between 7:00 and
8:00 p.m. The reports also referred to a trucker, James Prosser, who
was present in the café at the same time and denied Mark was there.
The Iowa Court of Appeals held that Mark knew or should have known of
Prosser's existence because Stinson stated at her deposition that two
truckers were in the café at the same time Mark was present and that
“Mark has not shown the discrepancies in Stinson's initial
identification would have changed the verdict.” Id.
Barbara Ann Smith, the manager of a Stuckey's
roadside store in Newton, Iowa, identified Mark in a lineup as being
at her store on Friday, October 31 between 5:00 p.m. and 6:00 p.m. At
trial, she testified that she saw him between 6:30 p.m. and 7:30 p.m.
Mark argued that the State wrongfully suppressed a police report
documenting the time frame Smith provided at the lineup and her
statements that the man at the store had blond hair, as opposed to
Mark's red hair. The report also contained a statement by Smith
after her lineup identification that “the subject did not look the
same now as when he did when he was in the Stuckey's Restaurant on
October 31, 1975.” The Iowa Court of Appeals held that “[t]he
imprecision of Smith's identification was revealed during her
deposition and referred to at trial. Mark was aware Smith believed
the motorcyclist had dishwater blond unkempt hair. Mark has failed
to demonstrate the State suppressed this evidence or that the police
report would have changed the verdict.” Id.
The next witness at issue was Delbert Van Hauen,
who testified at trial that he saw Mark at the Holiday service station
in Ackley, Iowa, on Friday, October 31. Some of the details provided
by Van Hauen were contrary to other eyewitnesses and were also
contrary to the actual description of Mark's motorcycle and attire.
The Iowa Court of Appeals held that this evidence was not suppressed
because it was addressed in Van Hauen's deposition and at trial. Id.
The court also concluded that it would not have “influenced the
Jayathan Hurd identified Mark, both in a lineup and
at trial, as having patronized his gas station in Williams, Iowa,
between 3:30 a.m. and 5:00 a.m. on the morning of Saturday, November
1. Mark contended that the State withheld police reports that detailed
inconsistencies in the identifications made by Hurd and also revealed
the existence of other witnesses in the station who did not recall
seeing Mark. For example, another employee informed police that Hurd
told him he observed Mark between 2:30 a.m. and 4:30 a.m. Because Hurd
had indicated at his deposition that other employees were present in
the gas station's café at the time he saw Mark, the Iowa Court of
Appeals held that this evidence was not suppressed because Mark “knew
or should have known the[ ] essential facts” necessary to pursue the
Finally, Mark claimed that the State suppressed
police reports revealing discrepancies in the identification made by
Rosalie McGinnis, who testified at trial that she saw Mark at a Conoco
gas station in Stuart, Iowa, between 7:00 a.m. and 8:00 a.m. on
Saturday, November 1. In a disclosed report, it was revealed that
McGinnis was not sure if the motorcyclist she saw paid for his
groceries with cash or by credit card. The suppressed police reports
indicated that McGinnis believed that the motorcyclist she saw
purchased groceries with a credit card and also stated that she
believed her memory to be impaired by a brain tumor. The Iowa Court
of Appeals held that “[t]hese discrepancies were addressed at trial,”
and that the suppressed reports were of “minimal” impeachment value
and “therefore would not have influenced the verdict.” Id. at 826.
After addressing each of Mark's Brady claims, the
Iowa Court of Appeals concluded its decision with the following
statement: “We affirm the [Black Hawk County] district court's denial
of Mark's petition for postconviction relief in its entirety.” Id. at
827. Mark sought discretionary review in the Iowa Supreme Court,
which was denied.
In 1997, Mark filed a timely pro-se petition for
writ of habeas corpus in the United States District Court for the
Northern District of Iowa, raising the same Brady claims he presented
to the Iowa Court of Appeals.2
After having counsel appointed, Mark filed a discovery motion
requesting testing for DNA profiling on the four cigarette butts found
at the crime scene. Initially, the district court granted the motion
and also granted Mark's motion to expand the record with the
DNA-profile test results. However, after the testing was completed,
the district court reversed its ruling and denied Mark's motion to
expand the record with the DNA test results.
Thereafter, the district court granted Mark's
petition, holding that the State's suppression of twenty-four pieces
of evidence violated Mark's due process rights. Warden Ault appeals
the district court's grant of Mark's petition for writ of habeas
corpus, and Mark cross-appeals its denial of his motion to expand the
record with the DNA results from the tests conducted on the four
cigarette butts found at the crime scene. For the reasons discussed
below, we affirm the district court's denial of Mark's motion to
expand the record, but we reverse its grant of his petition for writ
of habeas corpus.
A. Warden Ault's Appeal
We review the district court's grant of habeas relief de novo.
Colvin v. Taylor, 324 F.3d 583, 586 (8th Cir.2003). “When de novo
review is compelled, no form of appellate deference is acceptable.”
Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217,
113 L.Ed.2d 190 (1991). “Thus, we will look anew at the record which
was before the district court when it made its decision in this
matter.” Colvin, 324 F.3d at 586.
Like the district court, we review the state-court decision under
the standards established by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). “Pursuant to [AEDPA], when a state
prisoner files a petition for writ of habeas corpus in federal court
we are directed to undertake only a limited and deferential review of
underlying state court decisions.” Collier v. Norris, 485 F.3d 415,
421 (8th Cir.2007) (quotation omitted). As the Supreme Court has
stated, “[AEDPA] modified a federal habeas court's role in reviewing
state prisoner applications in order to prevent federal habeas
‘retrials' and to ensure that state-court convictions are given effect
to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 692,
122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). As such, an application for
shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of
the claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States․
28 U.S.C. § 2254(d). Because the Iowa Supreme Court denied Mark
review, we apply the AEDPA standard to the decision of the Iowa Court
of Appeals because it is the “last reasoned decision” of the state
courts. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct.
2590, 115 L.Ed.2d 706 (1991); Oxford v. Delo, 59 F.3d 741, 745 (8th
Well-settled United States Supreme Court precedent teaches that
due process is violated where the state suppresses evidence that is
favorable to the accused and is material to the issue of guilt or
punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. “[E]vidence is
material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667,
682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A “reasonable
probability” is one sufficient to undermine confidence in the outcome
of the trial. Id. Finally, suppressed evidence is to be considered
collectively to determine if it is material-in other words, if the
“net effect of all such evidence” reaches “the point of ‘reasonable
probability.’ ” Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995).
The district court held that Mark is entitled to relief under
§ 2254(d)(1) because the decision of the Iowa Court of Appeals is
“contrary to” and an “unreasonable application” of Supreme Court
precedent, specifically Brady and its progeny, in that it failed to
consider the allegedly suppressed evidence collectively in order to
determine whether confidence in the outcome of the trial was thereby
undermined. We address each provision of § 2254(d)(1) in turn,
beginning with the “contrary to” analysis.
“[A] state-court decision is contrary to [Supreme Court] precedent
if the state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law”-in other words, if it
“applies a rule that contradicts the governing law set forth in our
cases.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000) (stating that a hypothetical state-court decision
applying a “preponderance” burden instead of a “reasonable
probability” burden for demonstrating prejudice in an
ineffective-assistance-of-counsel claim would be “contrary to” its
precedent) (citing Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The decision of the Iowa Court
of Appeals did not contain a statement of law directly contrary to the
Supreme Court's rule announced in Kyles that suppressed evidence be
considered collectively to determine whether it is material. In the
absence of such direct evidence that the Iowa Court of Appeals applied
“a rule that contradicts the governing law set forth in [Supreme
Court] cases,” Mark argued that the Iowa Court of Appeals “did not
cite Kyles v. Whitley, nor did it address Mark's Brady claims
collectively.” The district court agreed.
Mark is correct that the Iowa Court of Appeals did not cite Kyles
v. Whitley nor did it expressly state the rule that suppressed
evidence is to be considered collectively to determine if its net
effect is material.3
However, “[a]voiding the[ ] pitfalls [of the “contrary to” provision
of § 2254(d)(1) ] does not require citation of our cases-indeed, it
does not even require awareness of our cases․” Early v. Packer, 537
U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam)
(emphasis in Early); see also Brown v. Luebbers, 371 F.3d 458, 467
(8th Cir.2004) (en banc) (holding that “the absence of reasoning is
not a barrier to a denial of [habeas] relief”). Therefore, our focus
is on Mark's claim that the Iowa Court of Appeals' decision is
contrary to Supreme Court precedent because it failed to address his
Brady claims collectively.
The decision of the Iowa Court of Appeals will be “contrary to”
clearly established federal law if the controlling Supreme Court cases
require a “different outcome” or a “particular result.” See Long v.
Humphrey, 184 F.3d 758, 760 (8th Cir.1999); see also McReynolds v.
Kemna, 208 F.3d 721, 723 (8th Cir.2000) (citing Long); Atley v. Ault
191 F.3d 865, 871 (8th Cir.1999) (citing Long). The result of the
Iowa Court of Appeals' decision was its holding that Mark's due
process rights were not violated by the alleged suppression of
exculpatory evidence. As we will demonstrate, the governing law set
forth by Supreme Court precedent-namely, the rule that allegedly
suppressed evidence be considered collectively in order to determine
if its net effect is material-does not require a different outcome in
Without indulging in a “federal habeas ‘retrial,’ ” Bell, 535 U.S.
at 692, 122 S.Ct. 1843, we must review some of the additional facts
that were presented to the jury in Mark's trial and contained in the
record before the Iowa Court of Appeals in order to examine the net
effect of the allegedly suppressed evidence. See Kyles, 514 U.S. at
441-54, 115 S.Ct. 1555 (examining the evidence presented at trial in
order to weigh the net effect of the suppressed evidence). For
example, the record contained evidence of Mark's motive for the
murders. Mark did not have an amicable relationship with his
brother, Leslie, and they disagreed over the distribution of their
father's estate. Once his father died and his brother took over the
family farm, Mark was repeatedly heard saying that he “hated his
little brother and would never forgive him for screwing him out of the
farm.” Additionally, nothing was stolen from the house, eliminating
the motive of theft.
The jury also heard evidence that Mark had access to a murder
weapon. Mark had obtained a .38-caliber Colt revolver from his
girlfriend that used the same type of rare bullets used to commit the
murders. Originally, Mark lied to the police and stated that he had
never bought ammunition for this Colt revolver, but the jury heard
testimony from the co-owner of a sporting goods store in California
who produced records showing that Mark purchased a box of .38-caliber
Winchester Western Long Colt bullets-the same type of bullets used in
the murders-from his store just eleven days before the murders. On
the same day he bought the bullets, Mark altered his appearance by
shaving off his beard and mustache.
Evidence was presented that tended to show that the murderer was
someone familiar with the victims and the premises. The
investigators learned that the telephone wires which led to a
neighboring farm had been cut on the night of the murders. Prior to
1974, that set of wires actually led to the Mark farm, but they were
re-routed during the summer of 1974. Because Mark moved from Iowa,
where he had been living and working during and after college, to
California in 1974, he would have been familiar with the telephone
wires only as they existed before they were re-routed. Near the
location where the telephone wires had been cut, investigators found
two of the rare .38-caliber Winchester Western Long Colt bullets.
The investigators also found shoe prints near and around a small
camper located on the farm. Because Mark had previously worked on
the farm with his father and brother, he would have been aware of
Leslie's tendency to sleep in the camper. Each victim was murdered
in or near their own bed, indicating that the murderer was able to
enter the house without rousing anyone or the family dog. The jury
heard evidence that Mark knew that the key to the back door of the
house hung from a nail on the back porch.
The jury also heard evidence that Mark lied to investigators
regarding his route of travel. Originally, Mark stated that he left
California on October 29 and traveled south to the Mojave Desert. He
eventually admitted to traveling as far east as the panhandle of
Nebraska, but he denied traveling farther than fifty miles east of
Chappell, Nebraska, which was nearly 600 miles from the crime scene,
despite the many witnesses who placed him as far as Ackley, Iowa, just
thirty-six miles from the crime scene.
Finally, the jury was also presented with telephone records,
revealing that a call was made from a telephone booth in Alda,
Nebraska, between 3: 00 p.m. and 4:00 p.m. on Saturday, November 1,
to the residence of Mark's girlfriend and her family. When Mark's
girlfriend's mother answered the phone, she heard Mark's voice. She
then asked him, “Jerry, where are you?” to which he replied, “I can't
say.” All of this evidence, along with the evidence we previously
recounted, was presented at trial and contained in the record before
the Iowa Court of Appeals.
Although the Iowa Court of Appeals held that some of the disputed
evidence was not suppressed because Mark “knew or should have known”
of its existence, we assume for our purposes that all of the disputed
evidence was wrongfully suppressed. In order to weigh the net effect
of the suppression of this evidence, we must consider its exculpatory
value. We believe that some of the evidence was of very little, if
any, value to Mark. For example, Jean Doyle originally identified a
man in a photograph presented to her by investigators as having been
at the truck stop in North Platte at noon on Saturday, November 1. As
previously explained, this statement was, to some extent, exculpatory
because it appeared to provide an alibi for Mark. However,
investigators subsequently realized that they accidentally had shown
Doyle a picture of Leslie Mark, Mark's brother, that was approximately
ten years old. When they re-interviewed Doyle and presented her with
a current picture of Mark, Doyle stated “positively” that this was not
the man she observed at the truck stop. In light of Doyle's second
statement, this evidence is hardly exculpatory. Likewise, the
evidence that investigators had obtained a fifty-count box of
Winchester Western Long Colt bullets from Olson's Boathouse in
Waterloo, Iowa, of which thirteen had been sold one week prior to the
murder, was not exculpatory. Because sixteen, not thirteen, bullets
were recovered from the crime scene, Mark's trial counsel conceded
during Mark's state postconviction proceedings that this evidence was
However, even assuming that all of disputed evidence was to some
degree exculpatory, in light of the strong circumstantial evidence
connecting Mark to the murders, the “net effect of” the minimally
exculpatory evidence cannot “reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.”
See id. at 435-37, 115 S.Ct. 1555. Accordingly, it is not contrary
to Supreme Court precedent to conclude that the allegedly suppressed
evidence, when considered collectively, does not create “a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different,” and that
therefore it is not material. Kyles, 514 U.S. at 433, 115 S.Ct. 1555.
Under Supreme Court precedent, the result of this conclusion is that
Mark's due process rights were not violated. See id. This is the
same result reached by the Iowa Court of Appeals. Accordingly, we
cannot say that Supreme Court precedent requires a result “contrary
to” that reached by the Iowa Court of Appeals. See Nelson v. Hvass,
392 F.3d 320, 322 (8th Cir.2004) (“[W]e may grant habeas relief only
if the state court's resolution of the claim cannot reasonably be
justified under existing Supreme Court precedent.”). Therefore, we
hold that Mark is not entitled to relief under the “contrary to”
provision found in § 2254(d)(1).
Turning to the “unreasonable application” provision of
§ 2254(d)(1), relief is warranted only where the state court decision
“ ‘identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case.’ ” Collier, 485 F.3d at 421 (quoting Williams,
529 U.S. at 413, 120 S.Ct. 1495). It is not enough for the federal
habeas court to conclude that, in its independent judgment, it would
have applied federal law differently from the state court; the state
court's application must have been objectively unreasonable. Id.
(citing Williams, 529 U.S. at 411, 120 S.Ct. 1495). In other words,
“[a] federal court may not overrule a state court for simply holding a
view different from its own.” Mitchell v. Esparza, 540 U.S. 12, 17,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam).
Mark did not present an argument on appeal concerning the
unreasonable application provision. Ordinarily, this “failure to
raise or discuss an issue in his brief [would] be deemed an
abandonment of that issue.” Hacker v. Barnhart, 459 F.3d 934, 937 n.
2 (8th Cir.2006). However, even assuming Mark had properly presented
this claim, in light of the evidence set out above and our conclusion
that the allegedly suppressed evidence, when considered collectively,
does not require the conclusion that Mark's due process rights were
violated, we would not find the decision of the Iowa Court of Appeals
to be “objectively unreasonable.” See Collier, 485 F.3d at 421. We
hold that Mark is not entitled to relief under the “unreasonable
application” provision of § 2254(d)(1).
The Supreme Court has instructed us to give decisions of state
courts “the benefit of the doubt.” Woodford v. Visciotti, 537 U.S.
19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). The
Court has cautioned us that “readiness to attribute error is
inconsistent with the presumption that state courts know and follow
the law.” Id. With these principles in mind, and granting substantial
deference to the Iowa Court of Appeals as mandated by AEDPA, we
conclude that, despite its failure to cite Kyles v. Whitley directly,
its decision denying Mark relief is not “contrary to” nor an
“unreasonable application” of clearly established federal law as
determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Accordingly, we reject Mark's claim for writ of habeas corpus and
reverse the district court's grant of his petition.4
B. Mark's Cross-Appeal
Mark cross-appeals the district court's denial of his motion to
expand the record with the DNA-profile results collected from testing
of four cigarette butts found at the crime scene. Warden Ault
resisted the motion, arguing that Mark was asserting a claim based on
newly discovered evidence, a claim that must first be exhausted in
state court. After originally granting Mark's motion, the district
court reversed its ruling, stating that it did not want “the appellate
process ․ complicated by the reviewing court concluding that there is
an exhaustion problem.” We affirm the district court's denial of
“An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that (A) the applicant has exhausted the
remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1). While Mark does not contest the fact that he did not
present the new DNA evidence to the state courts, he argues that there
is no exhaustion issue because this evidence does not support a new
claim but rather is offered as relevant evidence to bolster his Brady
claim. In other words, he argues that the new DNA evidence is
relevant “to show that Mark was prejudice [sic] by the state's
suppression of exculpatory evidence relating to pretrial blood-type
testing of the cigarette butts.” Although we are inclined to view
this argument as an attempt to inappropriately bootstrap the new
evidence to Mark's properly exhausted claim, for the purposes of this
appeal we will assume without deciding that the new evidence serves
only to bolster Mark's claim of constitutional error under Brady and
does not present a new, unexhausted claim.
Mark's motion to expand the record is governed by Rule 7 of the
Rules Governing Habeas Corpus Cases under Section 2254, which provides
that “[i]f the petition is not dismissed, the judge may direct the
parties to expand the record by submitting additional materials
relating to the petition.” See also Brown v. Johnson, 224 F.3d 461,
468-69 (5th Cir.2000). When a petitioner seeks to introduce evidence
pursuant to this rule, the conditions prescribed by § 2254(e)(2) must
still be met. See Holland v. Jackson, 542 U.S. 649, 652-53, 124
S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005) (stating that a
petitioner “must comply with § 2254(e)(2) in order to expand the
record under Rule 7”); Boyko v. Parke, 259 F.3d 781, 790 (7th
Cir.2001) (“When expansion of the record is used to achieve the same
end as an evidentiary hearing, the petitioner ought to be subject to
the same constraints that would be imposed if he had sought an
evidentiary hearing.”). A district court's decision regarding
whether to expand the record under Rule 7 is reviewed for an abuse of
discretion. See, e.g., Hoi Man Yung v. Walker, 468 F.3d 169, 177 (2d
Cir.2006); Apanovitch v. Houk, 466 F.3d 460, 478-79 (6th Cir.2006);
Eckstein v. Kingston, 460 F.3d 844, 852 (7th Cir.2006); Landrigan v.
Stewart, 272 F.3d 1221, 1229 n. 7 (9th Cir.2001).
Under 28 U.S.C. § 2254(e)(2), “[a] habeas petitioner must develop
the factual basis of his claim in the state court proceedings rather
than in a federal evidentiary hearing unless he shows that his claim
relies upon a new, retroactive law, or due diligence could not have
previously discovered the facts.” Cox v. Burger, 398 F.3d 1025, 1030
(8th Cir.2005) (citing 28 U.S.C. § 2254(e)(2)). It is undisputed
that the DNA testing yielding the results now at issue was not
available at the time of Mark's state court proceedings and therefore
could not have been discovered previously by due diligence.
Additionally, under § 2254(e)(2) “a petitioner must show that the
facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.” Perry v. Kemna, 356 F.3d 880, 889 (8th Cir.2004)
(internal quotation omitted). Again, assuming without deciding that
the “constitutional error” is that alleged in Mark's exhausted Brady
claim, we hold that Mark has failed to show that the new DNA evidence
clearly and convincingly establishes that no reasonable factfinder
would have found him guilty.
Four cigarette butts were found at the crime scene, tested for
blood type and discussed at Mark's criminal trial. The first,
designated “AJ,” was discovered on the floor of Julie Mark's upstairs
bedroom. The second butt, designated “CO,” was discovered in an
unused upstairs bedroom. The third and fourth butts were discovered
in the basement near an electrical box, designated “DM-1” and “DM-2.”
At trial, the State presented evidence that all four cigarette butts
were smoked by a person with “type-O secretor blood,” the same type of
blood as Mark. Mark cross-examined the State's expert witness,
establishing the error rate of the blood-type testing and establishing
that Mark's blood type was common among the general population. Also
on cross-examination, Mark established that the “CO” cigarette butt
contained “type-A secretor blood” traces and was actually smoked by
Deputy Weiser, who was a state investigator present at the crime
scene. Presumably because of the damaging cross-examination of its
expert witness, the State did not once mention the blood-type test
results from the cigarette butts to the jury in either its closing or
During his state PCR proceedings, Mark initiated DNA testing on the
four cigarette butts. No results were yielded, however, due to an
insufficient sample size. In the federal habeas proceedings, and
with the advent of “short tandem repeat” DNA testing which requires a
smaller sample size, Mark initiated further testing of the four
cigarette butts. The results, the accuracy of which is not disputed
by Warden Ault, revealed the following: (1) the DNA profile obtained
from the “CO” cigarette butt eliminated Mark's profile; (2) the DNA
profile obtained from the “DM-2” cigarette butt eliminated Mark's and
Deputy Weiser's profiles; and (3) there was still an insufficient
sample size to create a DNA profile with respect to “AJ” and “DM-1.”
Mark utterly failed to explain in his briefing to this court how
this new evidence clearly and convincingly demonstrates that, if
presented with it, no reasonable factfinder would have found him
guilty, and we are unable to reach such a conclusion. Regarding
samples “AJ” and “DM-1,” the testing yielded no results and therefore
establishes nothing. With respect to the “CO” sample, we already
noted that it was established at trial that Deputy Weiser smoked this
cigarette. Therefore, the results from the “CO” sample simply
confirm what was already known at trial and cannot establish that no
reasonable factfinder would have found Mark guilty had it been
presented. Finally, the new test results from the “DM-2” sample
eliminate Mark's DNA profile, whereas at trial the jury was led to
believe that Mark could have smoked this cigarette since his blood
type was the same as the type found on it. Although the jury heard
testimony that Mark's blood type matched that found on the “DM-2”
sample, the impact of this evidence was somewhat neutralized by Mark
establishing on cross-examination that his blood type was very common
among the general population and the expert's admission that
blood-type testing is subject to error. Furthermore, the jury also
heard testimony that of the many people on the investigation team who
were present at the crime scene, several of them were smokers and
smoked while at the crime scene. Finally, the fact that the State
did not once mention the cigarette butt evidence to the jury in its
closing and rebuttal arguments serves to illustrate the minimal impact
of this evidence on the outcome of the trial.
In sum, the majority of the new DNA evidence with which Mark seeks
to expand the record only confirms what the jury could have reasonably
concluded from the evidence presented to them at trial. With respect
to the results from the “DM-2” sample indicating that Mark did not
smoke that particular cigarette, we conclude that its probative value
is slight when compared to the overall evidence implicating Mark. As
such, the new DNA evidence Mark presents is not clear and convincing
evidence in the face of which no reasonable factfinder would have
found Mark guilty. Therefore, the district court did not abuse its
discretion in denying Mark's motion to expand the record because Mark
has failed to satisfy the clear and convincing evidence standard under
§ 2254(e)(2) that must be met in order to comply with Rule 7. See
Holland, 542 U.S. at 652-53, 124 S.Ct. 2736.
For the foregoing reasons, we reverse the district court's grant of
Mark's petition for writ of habeas corpus and affirm its denial of his
motion to expand the record. On remand, we instruct the district
court to enter an order denying Mark's petition with prejudice.
facts were adopted by the Black Hawk County District Court in Mark's
state postconviction proceedings, by the federal district court in
these proceedings and by Mark in his brief to this court.
also raised a claim that the State used unduly and impermissibly
suggestive photos to obtain out-of-court identifications in violation
of his due process rights. See Simmons v. United States, 390 U.S.
377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The district court denied
Mark's petition for writ of habeas corpus on this basis, and Mark did
not cross-appeal this ruling.
note that the Iowa Court of Appeals did cite to the Iowa Supreme
Court's decision in State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996),
which in turn cited to Kyles.
district court considered many other issues in its order. For
example, it addressed: (1) “the trial judge's failure to correctly
apply ‘Brady law’ that defendant have the right to see and consider
prior to trial all exculpatory evidence at the earliest opportunity”;
(2) the issue that “none of the conclusions by the Iowa courts that
denied any Brady violations because of the ‘knew or should have known’
doctrine was in accordance with prevailing law”; (3) the issue that
“neither the trial judge nor the post-conviction relief judge followed
the mandate of ․ State v. Peterson (citing Brady), 219 N.W.2d 665
(Iowa 1974)”; and (4) the issue that the trial court's in-camera
inspection of the State's file to determine what evidence was to be
disclosed to Mark under Brady did not “comply with federal law.” Mark
v. Burger, No. 97-4059, 2006 WL 2556577, at *12, 22, 77 (N.D.Iowa
Aug.31, 2006). These issues were not raised by Mark below and are
not urged upon us as grounds for affirmance on appeal. Hacker, 459
F.3d at 937 n. 2 (“A party's failure to raise or discuss an issue in
his brief is to be deemed an abandonment of that issue.”).
Therefore, we need not address these claims in detail. Suffice it to
say that we find the additional issues raised by the district court to
be without merit. See e.g., Kyles, 514 U.S. at 436, 115 S.Ct. 1555
(rejecting the notion that Brady requires disclosure all evidence or
information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense); see id. (addressing only
evidence “unknown to the defense” as a basis for a potential Brady
violation) (emphasis added); Estelle v. McGuire, 502 U.S. 62, 67-68,
112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[F]ederal habeas corpus relief
does not lie for errors of state law ․ [and] it is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions.”); United States v. Boykin, 986 F.2d 270, 276 n.
2 (8th Cir.1993) (“We note that it is common practice for the court to
view in camera information which the prosecutor possesses to determine
whether it is Brady material which must be disclosed․”).
GRUENDER, Circuit Judge.
'Brother's Blood' explores the Mark Family murders.