Criminal Practice – Habeas Corpus – Newly Discovered Evidence – Dissociative Amnesia

In his quest for habeas relief, petitioner asserts that – years after a trial at which he testified in detail as to how he had accidentally killed his girlfriend by tripping and falling on top of her – he has retrieved a repressed memory that his girlfriend actually committed suicide. While petitioner’s claim of dissociative amnesia provides some support for his claim of innocence, such support is undercut by (1) petitioner’s failure to provide details as to how his girlfriend committed suicide, (2) the fact that his new wife lost her security clearance and job with the FBI due to her association with him and that her attorney advised the best chance of contesting the dismissal was for petitioner to be exonerated, and (3) the fact that the state presented substantial evidence that petitioner killed his girlfriend. We cannot conclude that it is reasonably likely that petitioner’s testimony about his regained memory is reasonably likely to persuade a district court that no jury could find him guilty of his girlfriend’s killing.

The court denies petitioner’s motion for authorization to file a successive motion under 28 U.S.C. § 2254.

Concurrence

(Roger Gregory, C.J.) I write separately to emphasize that a proper dissociative amnesia diagnosis may support a successive habeas petition. Recovered memories may qualify as new evidence which “could not have been discovered previously through the exercise of due diligence.” § 2244(b)(2)(B)(i). Furthermore, a petitioner’s dissociative amnesia diagnosis could demonstrate that it was constitutional error to subject that person to trial, whether or not the diagnosis was known at the time.

In re Stewart (Lawyers Weekly No. 001-040-23, 32 pp.) (Marvin Quattlebaum, J.) No. 21-278. Appealed from USDC at Anderson, S.C. Ciara Barone, Walker Fortenberry and Dawinder Sidhu for movant; Mary Jane Brown, Alan Wilson and Donald Zelenka for respondent. United States Court of Appeals for the Fourth Circuit