Texas state prisoner Danny Richard Rivers filed his petition for a writ of certiorari in June, claiming he ended up on the wrong side of an appellate circuit split on whether inmates can amend their habeas corpus petitions.
"This case is about the hurdles that a prisoner must clear before a court will hear him out," Rivers said.
Rivers is represented by a team from Sidley Austin LLP.
A habeas corpus petition is often the last resort for incarcerated people challenging their detention, and every prisoner is guaranteed the right to file one by the U.S. Constitution.
Rivers' case centers on the Antiterrorism and Effective Death Penalty Act of 1996, specifically Section 2244, which makes it very difficult for inmates to succeed on a "second or successive" habeas corpus petition.
At issue is whether a request to amend a habeas petition with newly uncovered evidence constitutes a "second or successive" petition under Section 2244.
Rivers went through a "bitter divorce" in 2008, the petition said. In 2009, he was indicted for sexually abusing his own children and possessing child pornography, and in 2012, he was convicted following a jury trial. He is serving a 38-year sentence.
The trial hinged on the testimony of Rivers' two young daughters and the several files of child pornography found on Rivers' personal computer.
"No other witnesses saw the alleged abuse, and no physical evidence corroborated the story," Rivers said.
After exhausting all appellate relief in Texas state courts, Rivers filed a habeas petition in federal court in 2017. Rivers claimed he'd received ineffective assistance of counsel because his attorney, Mark Barber, was drunk during the trial, among other things.
In 2018, the district court denied Rivers' petition, and he appealed to the Fifth Circuit. After first requesting his client file from Barber in 2013, Rivers finally received it in 2019.
In that file, Rivers found a state investigator's report that Barber hadn't mentioned once during the trial. Despite file names like "reallyunderagekiddieporn," the report described each instance of alleged child pornography as "not child porn."
"Most telling of all," Rivers said, summarizing the report, the files "were not saved under River's name; they were instead recovered from a download folder bearing the name of Rivers' ex-wife."
In 2021, Rivers sought to supplement the appellate record, citing the state investigator's report and filing an affidavit stating that Rivers' ex-wife had access to his home and computer during the divorce.
The Fifth Circuit denied that motion and ultimately affirmed the district court's dismissal.
Meanwhile, Rivers sought to "bring the new evidence to the district court's attention" by filing a new petition. However, that effort was ultimately stymied by Section 2244.
If Rivers had been in the Second Circuit, however, things would have played out quite differently, according to the petition.
"In the Second Circuit, [Section 2244] doesn't apply until a prisoner has exhausted appellate review of his initial habeas petition — leaving district courts free to consider a filing like Rivers's," the petition said.
Given that some appellate courts apply Section 2244 so differently from others, Rivers said the Supreme Court should step in and resolve the split.
"The split is also outcome-determinative here: if Rivers were incarcerated in New York instead of Texas, courts would have considered the new evidence, giving him a meaningful path to relief," the petition said.
Neither party responded Friday to requests for comment.
Rivers is represented by Peter A. Bruland, Benjamin M. Mundel, Cody M. Akins, Hundley H. Poulson and David H. Kinnaird of Sidley Austin LLP.
The defendant, Texas Department of Criminal Justice-Correctional Institutions Division Director Bobby Lumpkin, is represented by Ken Paxton, Brent Webster, Josh Reno, Edward L. Marshall, Joseph P. Corcoran, Lori Brodbeck and Justine Isabelle C. Tan of the Texas Office of the Attorney General.
The case is Danny Rivers v. Bobby Lumpkin, case number 23-1345, in the Supreme Court of the United States.
--Additional reporting by Marco Poggio. Editing by Jay Jackson Jr.
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