Actual Innocence Not Recognized Ground for Relief in Federal Habeas Corpus Jurisprudence

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


Is Larry Ray Swearingen guilty of capital murder? The State of Texas, through Montgomery County Assistant District Attorney Marc Brumberger, believes that he is. The parents of Melissa Trotter, Charles and Sandra Trotter, believe that he is. The Texas Court of Criminal Appeals believes that he is.


But Swearingen’s attorney, James Rytting, the New York-based Innocence Project, and a host of forensic pathologists, including Glenn Larkin, strenuously believe that he is not. As Larkin recently told Texas Monthly Magazine: “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” While the Houston Chronicle, in a January 23, 2009 editorial, did not go as far as Larkin, the respected editorial board of the newspaper said: “He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.”


The United States Court of Appeals for the Fifth Circuit is not concerned one way or the other about Swearingen’s guilt or innocence. The appeals court has long held that the execution of an inmate who has demonstrated “actual innocence” does not offend federal due process of law. The appeals court, however, recently stayed Swearingen’s pending execution and ordered a hearing to determine (1) if state prosecutors engaged in prosecutorial misconduct and (2) if he was adequately represented at trial by defense counsel. See: In Re: Larry Ray Swearingen, No. 09-20024, Jan. 26, 2009 [Online citation unavailable].


We cannot conclude whether Swearingen is innocent or guilty. Our intent is to lay out the legal and factual background of his case so our readers can draw their own conclusions based upon the evidence we’ve gleaned from the public record and court decisions.




Larry Ray Swearingen, an electrician who lived in Willis, Texas, was arrested on December 11, 1998 by Montgomery County law enforcement authorities on outstanding charges unrelated to the murder of Melissa Trotter.

The body of Melissa Trotter was found on January 2, 1999 in the Sam Houston National Forest.


Swearingen was subsequently indicted by a Montgomery County grand jury for capital murder pursuant to Tex. Penal Code, Art. 19.03(a)(2)—a murder committed during the commission or attempted commission of either (1) a kidnapping or (2) an aggravated sexual assault.


A Montgomery County jury convicted Swearingen on July 11, 2000 and assessed his punishment at death.


Swearingen filed a mandatory direct appeal to the Texas Court of Criminal Appeals. That appeal was denied on March 26, 2003. See: Swearingen v. State, 101 S.W.3d 89 (Tex.Crim.App. 2003).


While his direct appeal was pending, Swearingen on March 11, 2002 filed his first state habeas corpus application. He raised ten claims for relief. The court of criminal appeals directed the trial court to make factual findings and legal conclusions on the writ application. The trial court heard, and rejected, Swearingen’s claims. The appeals court adopted the trial court’s ruling on May 21, 2003. See: Ex Parte Swearingen, No. WR-53,613-01 [Online citation unavailable].


On May 21, 2004, Swearingen filed his first federal writ of habeas corpus in the U.S. District Court, Southern District of Texas. He argued that there had been insufficient evidence presented at his state trial that he killed Melissa Trotter during the commission or attempted commission of either a kidnapping or a sexual assault. The district court denied habeas relief but issued a certificate of appealability authorizing Swearingen to appeal to the Fifth Circuit. Swearingen appealed to the Fifth Circuit raising the insufficiency of evidence claim and putting the appeals court on notice that he intended to file a future “actual innocence” claim. The Fifth Circuit was not impressed by either issue. Only July 31, 2006, the court denied the habeas claim and warned Swearingen’s counsel that if he intended to file an “actual innocence” claim, he should do so promptly. See: Swearingen v. Quarterman, 192 Fed. Appx. 300 (5th Cir. 2006), cert. denied, 549 U.S. 1216, 127 S.C.

1269, 167 L.Ed.2d 93 (2007).


While the federal habeas proceedings were pending, Swearingen filed motions in state court in the fall of 2004 seeking DNA testing of certain evidence and requesting an evidentiary hearing on the matter. The trial court denied these motions in April 2005. Swearingen appealed this decision to the Texas Court of Criminal Appeals. That court upheld the trial court ruling on February 1, 2006. See: Swearingen v. State, 189 S.W.3d 779 (Tex.Crim.App. 2006).


In January 2007, Swearingen filed his second state application for writ of habeas corpus. The Texas Court of Criminal Appeals determined that the trial court should enter factual findings and legal conclusions on six of the claims presented the habeas application. The trial court heard, and rejected, all six claims, and the court of criminal appeals adopted the trial court’s ruling on January 16, 2008. See: Ex Parte Swearingen, 2008 Tex. Crim. App. Unpub. LEXIS 17 (2008).


On January 16, 2008, Swearingen filed his third state application for writ of habeas corpus raising another six claims for relief. The Texas Court of Criminal Appeals on March 5, 2008 found that four of the claims were an “abuse of the writ” but remanded two of the claims to the trial court for factual findings and legal conclusions. The two claims dealt with whether the state had withheld exculpatory evidence and sponsored perjured testimony. See: Ex Parte Swearingen, 2008 Tex. Crim. App. LEXIS 169 (2008).


The trial court heard, and rejected, the two claims dealing with prosecutorial misconduct, and the court of criminal appeals adopted the trial court’s ruling on December 17, 2008. See: Ex Parte Swearingen, 2008 Tex. Crim. App. Unpub. LEXIS 948 (2008), pet. for cert. filed (U.S. Jan. 14, 2009).


Facing a January 27, 2009 scheduled execution, Swearingen on January 14, 2009, filed motions in the Fifth Circuit Court of Appeals for leave to file a second federal petition with the court and for a stay of his pending execution. He raised seven claims for relief in these motions, including the “actual innocence” claim. The appeals court on January 26, 2009 granted the motions with respect to two of the claims: 1) whether the state sponsored perjured testimony and 2) whether Swearingen had been denied effective assistance of counsel. See: In Re: Larry Ray Swearingen, No. 09-20024 [Online citation unavailable].




Larry Ray Swearingen apparently met Melissa Trotter on Sunday, December 6, 1998, in Montgomery County. They chatted at some length. Swearingen managed to get Melissa’s telephone number. They made plans to see or talk with each other the next day. Swearingen bragged to co-workers that he would be taking Melissa lunch. But Melissa did not show up for the meeting. Swearingen explained to his co-workers that he had called Melissa and learned she had to take a test. They did not believe him. They teased him about being “stood up” by Melissa. Swearingen was reportedly angry the rest of the day.

On the evening of December 7 Swearingen transported some furniture in his red pickup truck. He was accompanied by two acquaintances, Bryan Foster and William Brown. Swearingen told Foster and Brown that he was going to meet Melissa the next day – and if everything went okay, they would have lunch together. Later that evening at Foster’s house Swearingen called Melissa and talked about meeting her for lunch and helping her study for an exam.


The following day, December 8, Swearingen met Melissa at approximately 1:30 p.m. at the Montgomery College library in Conroe. Melissa was eating tater-tots she had purchased from the school’s cafeteria. The couple sat around a computer chatting amicably before leaving the library together at around 2:00 p.m.


Melissa’s vehicle remained the college parking lot.


Five minutes after exiting the library, Swearingen returned a page he had received. He told the calling party he would call back later because he was having lunch with a friend.


Swearingen returned to his trailer and left sometime between 2:00 p.m. and 3:30 p.m. He returned again to the trailer sometime before 5:30 p.m. He asked his landlord some questions before leaving again to pick up his wife, Terry, from her mother’s house. This time period was uncertain but was placed at sometime between 4:30 and 5:30 p.m. A neighbor saw Swearingen’s truck coming and going that afternoon but could not see who got in or out of the vehicle because of its tinted windows.


When Swearingen returned home with his wife, she noticed a pack of Marlboro Light cigarettes and a red lighter on top of the television. The items caught her attention because neither she nor Swearingen smoked. But evidence revealed that Melissa smoked Marlboro lights.


Later, during the evening of December 8, Swearingen called a former girlfriend named Phyllis Morrison and told her that he was in trouble. He said the police might be after him.


Swearingen was arrested on December 11 in connection with several outstanding warrants unrelated to the Melissa Trotter case. While being handcuffed, he told the police that his wrists and ribs were sore from a bar fight he had been a week earlier.


Melissa Trotter’s body was found in the Sam Houston National Forest on January 2, 1999. A piece of hosiery, still tied as a ligature, was around her neck. The body was on its back in a pile of bushes. Her right arm was above her head and slightly to the left. Her top and bra had been pulled up under her arms, leaving her breasts and back exposed. The body had creases running from the neck to the waist, probably caused by lying on the pile of bushes. Melissa had on jeans at the time of her death. The pants were open but the fly was closed. A right rear pocket had been torn downward, exposing part of her buttocks and red underwear. There were no scratches on the body’s exposed skin which indicated she had not been dragged to the spot where the body was found. She had on one shoe, and the other lay nearby. There was no soil on the shoes, indicating she had not walked to that location in the forest.


The location of Melissa’s body was in a heavily wooded, secluded, and remote area. The police had searched the area three times before without finding a body. One had to be within 20 feet of the body to see it.


Swearingen was familiar with this area. He had previously driven a date around this forest area a few months earlier in his pickup.


An autopsy revealed Melissa had died from asphyxia due to lacked of oxygen caused by ligature strangulation. The nylon ligature was cut from a pair of the pantyhose. The matching portion of the pantyhose was found in Swearingen’s trailer during a police search. However, two previous law enforcement searches had failed to discover the matching pantyhose. The New York Innocence Project is currently trying to obtain DNA testing of the matching pantyhose.


The autopsy also revealed a sharp-forced injury on Melissa’s neck that had been inflicted before she died and while her blood continued to flow. This area of injury also had animal tooth marks and activity around it.


There were no defensive wounds, such as broken fingernails, on the body. This suggested the nylon ligature had been tied around Melissa’s neck after she was unconscious. This suggestion was premised on the theory that a struggling Melissa would have fought hard against attempts to wrap the nylon ligature around her neck and caused defensive wounds.


Despite the body’s advanced stage of decomposition, the autopsy revealed that the left side of Melissa face was much darker than the other side. The report concluded this darken area had been caused by a bruise to that side of the face, indicating she had been struck in the face before her death.


The autopsy also revealed a deep bruise on Melissa’ tongue. The report concluded this bruise had probably been caused by a bite or a cut. This conclusion was premised on the theory that a blow under the chin would have pushed the lower jaw up onto the tongue, or that Melissa had bitten down on her tongue while being strangled.


The autopsy further revealed discoloration on Melissa’ vaginal wall. The report concluded this bruising could have been caused by sexual intercourse on the day prior to her death.


Fibers were removed from Melissa’s body. These fibers were similar to fibers found on Swearingen’s jacket, on the seat and headliner in his truck, and on the carpet in the master bedroom of his trailer. Fibers found in Swearingen’s truck were also similar to fibers found on Melissa’s jacket.


There were hairs found in Swearingen’s truck that appeared to have been forcibly removed from Melissa’s head.

The contents of Melissa’s stomach revealed what appeared to be some form of potato, chicken, and a small amount of greenish vegetable material. These contents indicated Melissa had eaten a recent meal before her death. It was clearly established that she had lunch with Swearingen on December 8.


While in jail, Swearingen reportedly sent a letter written in Spanish to his mother. Swearingen had used an English-Spanish dictionary to compose the letter and gotten a cellmate to copy it. The letter, purportedly written by someone named “Robin” and addressed to “Larry,” stated someone other than Swearingen killed Melissa. The translated letter read:


”I have information that I need to tell you about Melissa and Wanda. I was with the murderer of Melissa, and with the one that took Wanda from work. I am not sure what he did with Wanda, but I saw everything that happened to Melissa. He was talking to her in the parking lot. They went to school together is what he told me. “We drove for awhile, and then we went and had breakfast. I began to talk about sex when she said she had to go home.” He hit her in the left eye, and she fell to the floor of her car. He took her to the wood and began to choke her with his hands at first, then he jerked (jalar is slang) her to the bushes. He cut her throat to make sure that she was dead. Her shoe came off when he jerked (slang) her into the bushes. Her jabear (cannot make out/ no such word in Spanish) was torn. I am in love with him, and I don’t want him in jail.



The man in jail doesn’t deserve to be in jail, either. To make sure that you know, I am telling you the truth. She was wearing red panties when R.D. murdered her. He choked her with his hands first, but he used A piece of rope the truck from his truck; he had a piece of black rope that he used in his boat to anchor it, or something, he said. When he dragged her from the car, he put her in the shrub on her back. I know that I should turn him in, but he told me that he would kill me, too, and I believe him. He has told about this murder to 3 other women in the past, will tell you that he smokes, and he smoked with her at the college at 2:30 and drove a blue truck. His hair is blonde and brown and lives here. His name is Ronnie, but that is all I can tell, if you want more information, say it on paper and I will continue to write, but I want to come in.”


See: Swearingen v. State, supra, at 92-95.




At best, the evidence against Larry Ray Swearingen was circumstantial. The Texas Court of Criminal Appeals on direct appeal conceded at much. The state’s highest appeals court pointed out that the forensic evidence was “inconclusive” and the expert witnesses could not conclude that any one given explanation on this evidence was more likely than any other. For example, the experts could not positively state that there was a bruise or a knife wound on Melissa’s body, or that she had been unconscious when the ligature was applied. As for Swearingen’s fabricated Spanish letter, the court said it was not a “confession” and the jury could view it any way it wanted. The court, however, did point out that while the letter contained information inconsistent with the rest of the evidence, it stated information consistent with the “undisputed facts” of the case such as the cause of death, location of the body, and the color of Melissa’s underwear. The letter also supported the State’s theory that it was Melissa’s rejection of Swearingen’s sexual advances that “began the cycle of violence that led to her death.” Swearingen v. State, supra, at 96-97.


Based on the circumstantial evidence, and its reservations about it, the appeals court nonetheless found that:

“ … a rational jury could have concluded that: Trotter left the college with Swearingen in his truck. After she ate some chicken and green vegetables, he made sexual advances which she rejected. This rejection upset him and he hit her on the left side of her face. Then, through the use of the force or intimidation created by having hit her, he restrained her and substantially interfered with her liberty by confining her in his truck while moving her to the forest without her consent and that he did so with the intent to prevent her liberation by either secreting her in a place where she was not likely to be found or by using or threatening to use deadly force.


”A rational jury could also have concluded that at some point during the restraint, knowing that Trotter was unconscious or physically unable to resist, Swearingen intentionally committed acts in furtherance of his intent to have sexual relations with her, such as pulling up her bra and possibly penetrating her vagina. A rational jury could conclude that Swearingen compelled Trotter to submit or participate in such action by the use of physical force and without Trotter’s consent, as indicated by Trotter’s statement that she needed to go home when the conversation turned to sex. A rational jury could then find that Swearingen did attempt to, and succeeded in causing Trotter’s death in the course of the same criminal episode.” Id., at 96.




Since his conviction, Swearingen has secured testimony from at least three current and former Chief Medical Examiners and another forensic pathologist who have concluded that Melissa Trotter’s body had been in the woods no less than 3 and no more than 15 days before it was discovered on January 2, 1999. Dr. Glenn Larkin said Melissa’s body had been in the woods and deceased no more than 3 to 4 days. Dr. Louis Sanchez concluded the body had been in the woods for 10 to 15 days but was “some place else before that.” Dr. James Arends, an entomologist, stated that the body was “stored someplace cold” [“frozen”) before being placed in the woods based on different decomposition of the body from one end to the other. Finally, and more recently, Dr. Lloyd White concluded Melissa had been dead no more than two or three days when her body was found.


This post-conviction forensic evidence is bolstered by an October 31, 2007 affidavit from former Harris County Chief Medical Examiner Joyce Carter, who testified at Swearingen’s trial that Melissa’s body had been in the forest for approximately 25 days. Carter’s testimony supported the State’s theory that Swearingen killed Melissa on December 8 and dumped her body in the forest that same day. Dr. Carter’s 2007 affidavit states she re-examined the autopsy evidence and changed her opinion. She states that had she been given additional forensic evidence that was not available to her prior to trial, she would have concluded that Melissa’s body had been in the forest no more than 14 days.


Since Swearingen was arrested on December 11, 1998 and in jail at the time these forensic experts state Melissa’s body was deposited in the Sam Houston State Forest, his attorney and the New York Innocence Project argue these experts make a compelling case of Swearingen’s “actual innocence.”


In granting the stay of execution, two judges of the Fifth Circuit panel were not so convinced and were actually dismissive of the “actual innocence” claim presented by Swearingen’s experts – both from a factual and constitutional perspective. Judges Jones and DeMoss at the outset pointed out that the Fifth Circuit “does not recognize freestanding claims of actual innocence on federal habeas review.” In Re: Swearingen, p. 6 (Slip Opinion) [citing Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)].


As for the new forensic evidence, the judges took particular pains to stress that while each expert shared the opinion that Melissa’s body was not placed in the forest on December 8, 1998, the differences in their opinions as to how long her body had been in the forest before it was discovered “undermine[d] the credibility of their conclusions.” The refusal of these two judges to give credibility to the new forensic evidence was bolstered by the state’s post-conviction “entornological evidence” that Melissa’s body had actually been “colonized by the fly Cynomyopsis Cadavarina, a secondary colonizer, on December 8, 1998,” supporting its theory that her body had been placed in the forest that day. Finally, the judges noted that there was no expert testimony that weakened the link between the contents of Melissa’s stomach and the meal she had eaten with Swearingen on December 8, 1998. Id., at p. 6, n. 6.




In a concurring opinion, Fifth Circuit Judge Jacques L. Wiener, Jr. articulated a constitutional dilemma posed by the Swearingen case. Judge Wiener stated:


“Although my concurrence in the foregoing opinion makes it unanimous, I write separately to address the elephant that I perceive in the corner of this room: actual innocence. Consistently repeating the mantra that, to date, the Supreme Court of the United States has never expressly recognized actual innocence as a basis for habeas corpus relief in a death penalty case, this court has uniformly rejected standalone claims of actual innocence as a constitutional ground for prohibiting the imposition of the death penalty. The Supreme Court has, however, made statements in dicta which at least strongly signal that, under the right circumstances, it might add those capital defendants who are actually innocent to the lists of person who—like the insane, the mentally retarded, and the very young—are constitutionally ineligible for the death penalty.


“I conceive the real possibility that the district court to which we return this case today could view the newly discovered medical expert reports as clear and convincing evidence that the victim in this case could not possibly have been killed by the defendant, yet find it impossible to force the actual-innocence camel through the eye of either the Giglio [prosecutorial misconduct] or the Strickland [ineffective assistance] needle, and thus have no choice but to deny habeas relief to an actually innocent person. Should that prove to be so, this might be the very case for this court en banc—or the U.S. Supreme Court if we should demur—to recognize actual innocence as a ground for federal habeas relief. To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long.” Id., at p. 10-11 (Slip Opinion).


Judge Wiener’s concurring opinion points out that under current federal habeas jurisprudence a condemned inmate who is actually innocent can be legally executed by the states absent a violation of a constitutional right clearly recognized by the United States Supreme Court. Put simply, a guilty condemned inmate with constitutional violations is entitled to a new trial while an innocent condemned inmate with no constitutional violations is not. That’s more than an “elephant in the room.” It’s ludicrous.




As we stated at the outset, we do not have enough information to draw a firm conclusion on Swearingen’s guilt or innocence. It is difficult to see the conflicting conclusions drawn by the medical experts as a “silver bullet” of innocence when compared to the indisputable evidence that Swearingen was the last person seen with Melissa while she was still alive and that he was aware of the undisclosed “red underwear” evidence as he stated in his fabricated Spanish letter. Neither sets of evidence—one favoring innocence, the other guilt—is “compelling” enough for us to draw a firm line in the sand on either issue.


However, we join with the Chronicle editorial that there has been enough “clear and convincing” medical evidence produced since Swearingen’s conviction to warrant further forensic testing and to prevent the condemned inmate’s execution. No one should be executed when doubts about guilt/innocence clutter the decision-making process.


By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair