THE STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

http://www.arthurrutherford.us/legal/rutherfordfurman3850.htm

THE STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Recently, in House v. Bell, 126 S.Ct. 2064 (2006), the United States Supreme Court again considered the significance of actual innocence claims brought by capital postconviction defendants.

The Supreme Court reviewed Mr. House=s evidence of innocence in the federal habeas context and found that he had shown that in light of the evidence presented Aany reasonable juror would have [had] reasonable doubt@. Id at 2077.

In the federal habeas context, meeting the actual innocence burden of proof provided Mr. House with the opportunity to pursue Ahabeas corpus relief based on constitutional claims that are procedurally barred under state law.@ Id. at 2068.

3. Additionally, the House Court examined evidence of innocence similar to the evidence of innocence previously pleaded by Mr. Rutherford.

In House, the Supreme Court reviewed Atroubling evidence@ of another suspect. Id. at 2083

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As in Mr. Rutherford=s case A[t]he confession evidence here involves an alleged spontaneous statement recounted by [one] eyewitness[] with no evident motive to lie.

For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.@ Id. at 2085.

Heaton=s confession, especially in light of her possession of the victim=s check shortly after the crime was committed would have Areinforced other doubts as to [Mr. Rutherford=s guilt.@ Id.

4. The State of Florida leads the country in death row exonerations. ABA Report on Florida at 8. However, despite this troubling statistic Florida does not recognize actual innocence as a claim for relief. In addition, innocence, or lingering doubt is not a factor for a jury to consider in determining punishment. ABA Report on Florida at 311 (Athe Florida Supreme Court has consistently rejected >residual= or >lingering doubt= as a non-statutory mitigating circumstance@).

And, in Florida, under the current governor, actual innocence or lingering doubt, is not a factor to be considered in the clemency process. See Claim II, supra. Thus, in the State of Florida actual innocence means nothing after a jury has rendered a guilty verdict. This predicament demonstrates the unreliability and failure of the death penalty scheme in Florida.

5. This Court must establish an actual innocence exception and allow Mr. Rutherford to fully present his evidence of innocence. Relief is proper.