Brown v. Muniz

Northern District of California, cand-4:2014-cv-04497

ORDER by Judge Yvonne Gonzalez Rogers granting {{18}} Renewed Motion to Dismiss the Petition as Successive. GRANTING CERTIFICATE OF APPEALABILITY Modified on 2/24/2016

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 GREGORY L. BROWN, 4 Case No. 14-cv-04497-YGR (PR) Petitioner, 5 ORDER GRANTING RESPONDENT'S v. RENEWED MOTION TO DISMISS 6 PETITION AS SUCCESSIVE; AND DEBBIE ASUNCION, Acting Warden,1 GRANTING CERTIFICATE OF 7 APPEALABILITY Respondent. 8 9 Petitioner Gregory L. Brown, a state prisoner, filed the instant pro se action for a writ of 10 habeas corpus pursuant to 28 U.S.C. § 2254. 11 Before the Court is Respondent's renewed motion to dismiss the instant petition as 12 Northern District of California successive under 28 U.S.C. § 2244(b). Dkt. 18. Petitioner filed an opposition to the renewed United States District Court 13 motion. Dkt. 19. Respondent filed a reply and two addendums to the reply. Dkts. 20, 21, 25. 14 Having read and considered the papers submitted and being fully informed, the Court 15 GRANTS Respondent's renewed motion and DISMISSES the petition as successive. 16 I. BACKGROUND 17 In 1995, Petitioner was sentenced to fifty-six years to life in state prison, following his 18 conviction of conspiracy to commit first degree murder and attempted first degree murder. 19 Thereafter, Petitioner unsuccessfully pursued direct and collateral review in state court. 20 The Court does not detail Petitioner's state post-conviction proceedings here as they are not 21 relevant to the pending renewed dispositive motion. 22 On October 7, 2014, Petitioner filed the instant petition. Dkt. 1. 23 On November 17, 2014, the Court issued an order to show cause. Dkt. 7. 24 On February 6, 2015, in lieu of an answer, Respondent moved to dismiss the instant 25 petition as successive because Petitioner filed a prior federal habeas petition, which challenged the 26 27 1 28 Debbie Asuncion, the current warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 same underlying state conviction. Dkt. 13 at 3. In Petitioner's previous federal habeas action, 2 Case No. C 98-2013 MMC (PR), Judge Maxine M. Chesney denied the petition on the merits. 3 Dkt. 28 in Case No. C 98-2013 MMC (PR). In his opposition to that motion to dismiss, Petitioner 4 did not deny that he filed a previous federal habeas petition, but argued that the petition was not a 5 second or successive petition because it is based on new Brady2 claims. Dkt. 14 at 6-10. 6 In an Order dated May 14, 2015, the Court denied Respondent's motion to dismiss without 7 prejudice to renewing the motion to address "whether this case fits the exception to section 8 2244(b)(2) as recognized by the Ninth Circuit in King v. Trujillo.3" Dkt. 17 at 7. 9 On June 11, 2015, Respondent filed the instant renewed motion to dismiss the petition as 10 successive. Dkt. 18. On June 29, 2015, Petitioner filed his opposition to renewed motion. Dkt. 11 19. Thereafter, Respondent filed a reply and two addendums to the reply.4 Dkts. 20, 21, 25. 12 II. DISCUSSION Northern District of California United States District Court 13 A claim presented in a second or successive petition for a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254 must be dismissed if presented in a prior petition. See 28 U.S.C. § 2244(b)(1); 15 Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Section 2244(b) applies when a court 16 has disposed of a previous petition on the merits. See 28 U.S.C. § 2244(b)(1) (emphasis supplied). 17 Under that section, a petitioner must obtain an order from the court of appeals which authorizes 18 the district court to consider any second or successive petition before that petitioner can file such a 19 petition. See 28 U.S.C. § 2244(b)(3)(A). Without such an order, a district court must dismiss the 20 successive petition. See id. § 2244(b)(2). 21 Further, a new claim presented in a second or successive petition under 28 U.S.C. § 2254 22 that was not presented in a prior petition must also be dismissed unless it satisfies one of two sets 23 2 24 Brady v. Maryland, 373 U.S. 83 (1963). 3 25 King v. Trujillo, 638 F.3d 726, 729-30 (9th Cir. 2011) (per curiam). 4 26 On February 9, 2016, Petitioner informed the Court that he had not received a copy of the second addendum to the reply, which had been sent to Salinas Valley State Prison, where he was 27 previously incarcerated. Dkt. 29. However, also on February 9, 2016, Respondent filed a notice entitled, "Re-Service of Second Addendum to Reply," which indicates that another copy of the 28 second addendum to the reply had been sent to Petitioner's current address, CSP-Los Angeles County. Dkt. 28. 2 1 of requirements. The first set requires dismissal unless the applicant "shows" that the "claim relies 2 on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme 3 Court, that was previously unavailable." See 28 U.S.C. § 2244(b)(2)(A). The second set allows a 4 newly presented claim where: 5 (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 6 (ii) the facts underlying the claim, if proven and viewed in 7 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no 8 reasonable factfinder would have found the petitioner guilty of the underlying offense. 9 See 28 U.S.C. § 2244(b)(2)(B). 10 In its May 14, 2015 Order, the Court noted that there was "some uncertainty regarding how 11 the second or successive restrictions apply with respect to Brady claims," stating as follows: 12 Northern District of California United States District Court Several circuits have ruled that second-in-time claims arising under 13 Brady are not exempt from the second or successive restrictions. See Quezada v. Smith, 624 F.3d 514, 520 (2nd Cir. 2010) (applying 14 section 2244(b) to Brady claim); In re Siggers, 615 F.3d 477, 479 (6th Cir. 2010) (same); Tompkins v. Sec'y, Dept. of Corr., 557 F.3d 15 1257, 1259-60 (11th Cir. 2009); Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000) (same); see also Johnson v. Dretke, 442 F.3d 901, 16 911 (5th Cir. 2006) ("a successive petitioner urging a Brady claim may not rely solely upon the ultimate merits of the Brady claim in 17 order to demonstrate due diligence under [section] 2244(b)(2)(B) where the petitioner was noticed pretrial of the existence of the 18 factual predicate and of the factual predicate's ultimate potential exculpatory relevance"). 19 The Ninth Circuit in King, on the other hand, has 20 "recognized that a Brady v. Maryland violation claim in a habeas petition may not be subject to the 'clear and convincing standard' 21 [under section 2244(b)(2)(B)(ii)], provided the newly discovered evidence supporting the claim [i]s 'material' under Brady." King, 22 638 F.3d at 729 (citing United States v. Lopez, 577 F.3d 1053, 1066- 68 (9th Cir. 2009) (leaving open the question of whether meritorious 23 Brady claims that would have been reviewable under the pre- AEDPA prejudice standard are subject to section 24 2244(b)(2)(B)(ii))). 25 In Lopez, the federal prisoner argued that the United States Supreme Court's decision in Panetti v. Quarterman, 551 U.S. 930 26 (2007), holding that competency-to-be-executed claims based on Ford v. Wainwright, 477 U.S. 399 (1986), are exempt from 27 AEDPA's second or successive requirements, established that Brady claims are exempt from the second-or-successive restrictions as 28 well. Lopez, 577 F.3d at 1066. The government, on the other hand, 3 argued that all second-in-time Brady claims are subject to the 1 second or successive restrictions because they are second or successive claims that rely on "newly discovered" evidence. Id. In 2 considering both arguments, the Ninth Circuit observed that the Supreme Court has not always read "second or successive" literally. 3 Id. at 1062. The Ninth Circuit also noted that in Panetti, the Supreme Court held "[t]he phrase 'second or successive' is not self- 4 defining." Id. (quoting Panetti, 551 U.S. at 943). Responding to the government's argument, the Lopez court stated that under a literal 5 reading of "second or successive" in AEDPA, 6 federal courts would lack jurisdiction to consider any second-in-time Brady claims unless petitioner 7 demonstrates by clear and convincing evidence that no reasonable factfinder would have found 8 petitioner guilty of the offense had the newly discovered evidence been available at trial. If 9 [section 2244(b)]5 applies literally to every second- in-time Brady claim, federal courts would be unable 10 to resolve an entire subset of meritorious Brady claims: those where petitioner can show the 11 suppressed evidence establishes a reasonable probability of a different result and is therefore 12 material under Brady, but cannot, under [section Northern District of California 2244(b)(2)]'s more demanding prejudice standard, United States District Court 13 show that the evidence establishes by clear and convincing evidence that no reasonable juror would 14 have voted to convict petitioner. 15 Lopez, 577 F.3d at 1064 (emphasis in original) (citations omitted and footnote added). The effect, the Ninth Circuit concluded, was 16 the "perverse result" of foreclosing federal review of some meritorious claims and rewarding prosecutors for failing to meet 17 their constitutional disclosure obligations under Brady. Id. at 1065. 18 Ultimately, however, the Lopez court declined to resolve the issue regarding whether meritorious Brady claims were categorically 19 exempt from AEDPA's second or successive petition provisions, holding that "[e]ven if Panetti could be viewed as supporting an 20 exemption from AEDPA's gatekeeping provisions for meritorious Brady claims, such a rule would not benefit Lopez, because we 21 conclude (1) that Brady claims that fail to establish materiality (and therefore lack merit) are subject to AEDPA's gatekeeping 22 provisions and (2) that Lopez has failed to establish materiality." Id. 23 As noted above, recently and subsequent to Lopez, the Ninth Circuit in King, again suggested that the section 2244(b)(2) second 24 and successive restrictions do not necessarily apply to meritorious Brady claims. King, 638 F.3d at 729. 25 The Court finds that to the extent an exception to section 26 27 5 Lopez was a section 2255 case, and the Ninth Circuit was applying section 2255(h)'s 28 gateway in that case; however, the court of appeals treats the section 2244(b) gateway identically. See United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000). 4 2244(b)(2) exists for Brady claims, as suggested by the Ninth 1 Circuit, this may be a case that would fit that exception. See id. 2 Dkt. 17 at 3-5 (footnotes renumbered). As explained above, the Court allowed Respondent to 3 renew the motion to dismiss and directed him to "address[] whether this case fits the exception to 4 section 2244(b)(2) as recognized by the Ninth Circuit in King v. Trujillo." Id. at 7. 5 In the renewed motion to dismiss, Respondent continues to argue that the petition should 6 be dismissed as successive because no such exception to section 2244(b)(2) exists, stating as 7 follows: As respondent noted in his original motion, no case has held that 8 Brady claims of any sort are excepted from the requirements of 28 U.S.C. § 2244(b). United States v. Lopez, 577 F.3d 1053 (9th Cir. 9 2009), is not to the contrary. There, the court held in the context of the analogous gatekeeping provisions of 28 U.S.C. § 2255(h) that 10 "Brady claims are not categorically exempt from AEDPA's gatekeeping provisions and that second-in-time Brady claims that do 11 not establish materiality of the suppressed evidence are subject to dismissal under § 2255(h)(1)." Lopez, 577 F.3d at 1066. In other 12 words, under Lopez, second-in-time habeas petitions raising Brady Northern District of California United States District Court claims not establishing materiality must be dismissed under 28 13 U.S.C. § 2244(b) if permission to file the petition has not been obtained from the court of appeals. See Lopez, 577 F.3d at 1066. 14 Dkt. 18 at 3. Respondent adds that "the Ninth Circuit has theorized that an exception to section 15 2244(b) might exist for Brady claims establishing materiality, but has not had occasion to decide 16 the question." Id. Therefore, Respondent argues that this Court lacks jurisdiction to decide such 17 an issue and consider the petition, stating: 18 Respectfully, a holding establishing for the first time in any 19 circuit a new exception to § 2244(b) for Brady claims demonstrating materiality should come from the court of appeals in the first 20 instance. This is particularly so where, as here, it is the court of appeals that serves as the gatekeeper for second-in-time habeas 21 petitions. This Court currently lacks jurisdiction to address the petition, and should not create jurisdiction by creating new law not 22 yet established by the court of appeals. 23 Even assuming, arguendo, an exception to 28 U.S.C. § 2244(b) exists for Brady claims, the court of appeals, not this 24 Court, should determine whether the exception applies. Even under the exception theorized in Lopez, supra, there still remains a 25 standard to be met—"materiality" of the withheld evidence—to establish whether an exception applies. See United States v. Lopez, 26 577 F.3d at 1066-67. Hence, just as the court of appeals determines whether a petitioner has made a prima facie case of satisfying 27 § 2244(b), that court should be the one to determine whether a petitioner has established materiality of the allegedly withheld 28 evidence, and thus whether § 2244(b) applies at all for a given case. 5 Absent such an order, this Court lacks jurisdiction to consider the 1 petition. 2 Id. at 4. Finally, Respondent argues that "even if this Court were to establish an exception for 3 Brady claims establishing materiality, it could only do so if petitioner can meet his burden of 4 showing that the withheld evidence was material." Id. Respondent stresses that if Petitioner 5 cannot meet such a burden, then "this Court has no jurisdiction to address the petition." Id. (citing 6 Lopez, 577 F.3d at 1066.) 7 In his opposition to the renewed motion, Petitioner bases his case for materiality on copies 8 of letters from the San Francisco District Attorney's Office to the San Francisco Public Defender's 9 Office stating, in essence, that there is evidence in three officers' files that may constitute Brady 10 material for some cases. Dkt. 19 at 6; see also Dkt. 14 at 2-3; Dkt. 1-2 at 9, 11, 13. Those officers 11 from the San Francisco Police Department are: Sergeants Michael Hutchings and Wallace Gin, 12 and Police Officer Pamela Hockett. See id. Northern District of California United States District Court 13 In the reply and addendums to the reply, Respondent argues that the letters to which 14 Petitioner refers "do not concede or establish that Brady material exists, but rather that it may exist 15 depending on, inter alia, each officer's role in a given case." Dkt. 20 at 2. Moreover, since the 16 filing the renewed motion to dismiss, Respondent and the San Francisco County District 17 Attorney's Office have reviewed the material referenced in the letters pertaining to the three 18 officers and have concluded there is no evidence that must be disclosed under Brady.6 See Dkt. 20 19 at 2; Dkt. 25 at 2. Therefore, Respondent argues that there is no Brady evidence concerning any 20 of the three officers. Id. 21 Upon reviewing the above-referenced arguments by the parties, this Court agrees that as a 22 threshold matter uncertainty remains regarding how the Ninth Circuit would consider second or 23 successive petitions based upon Brady claims. Therefore, the Court concludes that it does not 24 have jurisdiction to decide the instant petition. 25 The Court GRANTS Respondent's renewed motion to dismiss. Dkt. 18. Given the 26 6 27 A copy of the material concerning Sergeant Hutchings and Officer Hockett was sent to Victor Blumenkrantz, Petitioner's appellate counsel. Dkt. 20 at 2 note 1. The record does not 28 indicate whether the material concerning Sergeant Gin was similarly sent to Petitioner's appellate counsel. See Dkt. 25. 6 1 deference to the Ninth Circuit, the Court declines to make any determination as to the instant 2 petition or to the alleged Brady evidence. 3 Accordingly, the instant petition is thus classified as a successive petition, and an 4 authorization order from the court of appeals is necessary before this Court may consider the 5 instant successive petition. See 28 U.S.C. § 2244(b)(3)(A). As Petitioner has not presented an 6 order from the Ninth Circuit authorizing this Court to consider any new claims, this Court 7 DISMISSES the instant petition in its entirety under section 2244(b). 8 III. CERTIFICATE OF APPEALABILITY ("COA") 9 "Where a district court has rejected the constitutional claims on the merits, the showing 10 required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable 11 jurists would find the district court's assessment of the constitutional claims debatable or wrong." 12 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(1) also applies to an appeal of a Northern District of California United States District Court 13 final order entered on a procedural question antecedent to the merits, for instance a dismissal of 14 the petition as successive, as here. See id. 15 "Determining whether a COA should issue where the petition was dismissed on procedural 16 grounds has two components, one directed at the underlying constitutional claims and one directed 17 at the district court's procedural holding." Id. "When the district court denies a habeas petition on 18 procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should 19 issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the 20 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 21 find it debatable whether the district court was correct in its procedural ruling." Id. As each of 22 these components is a "threshold inquiry," the court "may find that it can dispose of the 23 application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is 24 more apparent from the record and arguments." Id. Supreme Court jurisprudence "allows and 25 encourages" federal courts to resolve the procedural issue first, as was done here. See id. 26 Reasonable jurists could find debatable whether an exception to section 2244(b) might 27 exist for Brady claims establishing materiality. Therefore, reasonable jurists could also find 28 debatable whether Petitioner met his burden of showing that the withheld evidence relating to the 7 1 three officers was material. Moreover, because the Court found in its Order to Show Cause that it 2 did not appear from the face of the petition that it was without merit, then it is reasonably 3 debatable that the claims in the petition are valid. Accordingly, a certificate of appealability is 4 GRANTED as to the aforementioned issues. 5 IV. CONCLUSION 6 For the foregoing reasons, Respondent's renewed motion to dismiss the petition as 7 successive is GRANTED. Dkt. 18. The instant petition is DISMISSED as a successive petition 8 pursuant to 28 U.S.C. § 2244(b). The Clerk of the Court shall enter judgment, terminate all 9 pending motions and close the file. 10 As explained above, the Court finds that a certificate of appealability is warranted in this 11 case. See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring 12 district court to rule on certificate of appealability in same order that denies petition). The Clerk Northern District of California United States District Court 13 shall provide a copy of this Order to the Ninth Circuit. 14 This Order terminates Docket No. 18. 15 IT IS SO ORDERED. 16 Dated: February 23, 2016 17 ______________________________________ YVONNE GONZALEZ ROGERS 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 8