ORDER SETTING EVIDENTIARY HEARING
Petitioners Kevin B. Johnson and Wade Thornton are state prisoners proceeding through separate counsel with related applications for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioners challenge a judgment of conviction entered against them in the Sacramento County Superior Court on August 4, 2000, after a joint trial, on a charge of second degree robbery.*fn1 Both petitioners claim that they are factually innocent of the robbery and that their imprisonment therefore violates their rights under the Eighth and Fourteenth Amendments. Petitioners request an evidentiary hearing on their claim of actual innocence. After careful consideration of the record and the applicable law, this court will grant the petitioners' request for an evidentiary hearing.
The California Court of Appeal described the relevant underlying facts and the procedural history of this case in its decision on the appeal filed by petitioners Thornton and Johnson. This court presumes that the state court's findings of fact are correct unless petitioners rebut that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioners have not attempted to overcome the presumption with respect to the underlying events. The court will therefore rely on the state court's recitation of the facts.
Defendants Kevin B. Johnson and Wade Felix Thornton were convicted of second degree robbery ( Pen. Code, §§ 211, 212.5), and the jury also found Thornton guilty of possessing cocaine base (Health & Saf. Code, § 11350, subd. (a). The trial court found true the allegations that Johnson had two prior serious felony convictions within the meaning of the "three strikes law" and that Thornton had one such prior conviction. (Pen. Code, §§ 667, subds. (a) and (b) - (I), 1170.12.) Johnson was sentenced to state prison for 25 years to life, and Thornton received a prison term of 17 years and 4 months.
Late one evening, Easmon Durant cashed a social security check for about $700 at a convenience store on Del Paso Boulevard in Sacramento. On the way home after purchasing some food and groceries, he encountered two men, one Caucasian and the other African-American.
Acting and talking in a way that led Durant to believe the two men were undercover police officers, the Caucasian accused Durant of being a drug user. Grabbing Durant and pushing him up against a wall, the man took everything out of Durant's pockets. After removing the cash from Durant's wallet, the man said that he had to verify if Durant got the money legitimately or from drug dealing. Durant replied he had just cashed his social security check. Telling Durant there were undercover cars around the corner in the alley, the man said he had to go there to make a call and verify Durant's claim. He then escorted Durant to a parking lot, tapped on a red van, and counted the $680 he had taken from Durant's wallet. At this point, the African-American came up and said he had run a warrant check and there were no outstanding warrants on Durant. The African-American told Durant to sit down and not move while the men went to "check out the money situation." The men then walked away separately. Durant waited a "long time" but the men did not return with his money. He had not resisted the men because, based upon their words and actions, he was afraid they would arrest him. The robbery occurred around 11:00 p.m.
At about 11:18 p.m., Officer Patrick MacBeth was on patrol on Del Paso Boulevard when he saw defendant Johnson, a Caucasian, and defendant Thornton, an African-American, running across the road within about 100 yards of the site of the robbery. MacBeth was unaware that the robbery had occurred because Durant did not report it until shortly before midnight. However, because the men were running in a direction away from a Shall station, MacBeth suspected they might have been involved in a theft at the station. Thus, he shined his spotlight on the men and told them to stop. Defendant Thornton immediately put his hands into his pockets. Fearing for his safety, MacBeth ordered Thornton to "show [MacBeth] his hands." When Thornton did so, he dropped two items onto the ground: Durant's wallet; and an orange container holding .04 grams of cocaine base. After testing the substance in the container, MacBeth arrested Thornton for possessing a controlled substance.
Officer Kevin Griffin, who had arrived to assist MacBeth, searched Johnson and found approximately $700 in his right front pants pocket. Johnson claimed he had obtained the money by cashing a social security check. The money was returned to Johnson, and he was released.
The primary issue at trial was whether Johnson and Thornton were the two men who robbed Durant.
In a photographic line-up, Durant identified Johnson as the Caucasian robber. At trial, Durant was "almost" willing to identify Johnson as the Caucasian robber, but was not positive because Johnson's physical appearance at trial was somewhat different from how the Caucasian robber looked at the time of the robbery.*fn2 Officers MacBeth and Griffin identified Johnson as the Caucasian man they detained on the night of the robbery; but Griffin said he was not certain of the identification because Johnson's appearance had changed. However, Griffin testified that the man had identified himself as Johnson and had provided Griffin with personal information, including a Department of Corrections (CDC) number assigned to Johnson.
Durant testified that Thornton might or might not have been the African-American involved in the robbery. But the description that Durant gave of the perpetrator on the night of the robbery was consistent in some particulars with Thornton's appearance when he was arrested the same night. And Officer MacBeth identified Thornton as the African-American man he arrested approximately 100 yards from the crime scene soon after the robbery.
Johnson's Defense Johnson testified that he was not involved in the robbery and, in fact, was not even the man detained by police that evening. As for the identifying information the Caucasian suspect had given to Officer Griffin, Johnson claimed someone had stolen his wallet, which contained his driver's license and other personal documents, prior to the date of the robbery. Johnson also asserted that he could not have been the suspect whom Officer MacBeth saw running without any noticeable impairment, because Johnson could not run on the date of the robbery due to a medical condition -- he walked with a limp and often used a cane. To bolster this claim, Johnson introduced evidence from medical professionals who had previously treated him.
The People introduced evidence to rebut Johnson's claim about his medical condition. The officer who arrested Johnson two days after the robbery testified that he saw Johnson exit a motorhome, walk down four steps, and then walk about 50 feet. Johnson did not limp, was not using a cane, and had no trouble walking. While the officer was present at the medical intake screening at county jail, Johnson noted his medical condition but indicated that he did not have any physical disabilities and did not use a walking aid.
A further blow to Johnson's defense occurred when co-defendant Thornton testified in his own defense and identified Johnson as the man who was with Thornton when they were stopped by Officer MacBeth. When asked if he had an explanation why Thornton so testified, Johnson replied: "I do not."
Thornton's Defense Thornton denied any involvement in the robbery. Thornton testified as follows: He met Johnson for the first time that night, when Johnson and a "tall, skinny" African-American man came up to Thornton as he was sitting at a bus shelter in front of the Shell station on Del Paso Boulevard. Johnson offered to pay Thornton to get some drugs, and they left the bus shelter together to do so. They ran across the boulevard because it was a "pretty busy street." Johnson did not have a cane or a limp, and had no problem running. Thornton disputed Officer MacBeth's testimony that Thornton pulled Durant's wallet from his pocket and dropped it on the ground. According to Thornton, when the officer pulled up, Johnson tried to hand Thornton the wallet and, in Thornton's words: "I was like, [w]hat is this? What are you doing?" The wallet then dropped to the ground. Thornton admitted possessing the orange container with cocaine base.
(November 28, 2001, opinion by the California Court of Appeal for the Third Appellate District, filed as Ex. A to the Amended Petition in Thornton Habeas, at 2-6).
2. Court Proceedings Filed by Petitioner
Johnson After the California Court of Appeal rejected his claims raised on appeal, petitioner Johnson filed a petition for review in the California Supreme Court. (August 5, 2004 Answer filed in Case No. CIV S-04-0892 MCE DAD P (Johnson Habeas), Ex. D.) That petition was summarily denied by order dated February 13, 2002. (Id., Ex. E.)
On May 13, 2003, petitioner Johnson filed a habeas petition in the Sacramento County Superior Court, claiming that he was innocent of the Durant robbery. (May 24, 2006 Amended Answer filed in Johnson Habeas, at 2.)*fn3 In support of his claim of innocence, Johnson filed a letter sent to his parents by Bobby Green, an inmate in an Arkansas prison previously unknown to Johnson. (See court document No. 4 (entitled "Exhibit 22") filed in Johnson habeas). In the letter, Green stated in cursory fashion that he had committed the Durant robbery and that he would provide more detailed information and sign an affidavit, if asked. (Id.) The state court denied relief on petitioner's claim of innocence and rejected Green's letter, in part on the basis that it was not in the form of an affidavit signed under penalty of perjury. (August 5, 2004 Answer filed in Johnson Habeas, Ex. F.) Petitioner Johnson then filed a petition for writ of habeas corpus in the California Court of Appeal. (May 24, 2006 Amended Answer filed in Johnson Habeas, at 3.)*fn4 That petition was summarily denied by order dated July 3, 2003. (August 5, 2004 Answer filed in Johnson Habeas, Ex. G.)
On July 28, 2003, petitioner Johnson filed a petition for a writ of habeas corpus in the California Supreme Court claiming, among other things, that he was factually innocent of the robbery of Durant. (Id., Ex. H.) That petition was summarily denied by order dated April 21, 2004. (Id., Ex. I.) After the California Supreme Court denied Johnson's habeas petition, he wrote to Green asking for a declaration detailing the facts of the robbery. (April 19, 2006, Mem. of P. & A. in Supp. of Am. Pet. for Writ of Habeas Corpus filed in Johnson Habeas, at 12.) In response, in May 2004, Johnson received an affidavit signed by Green under penalty of perjury, which contained additional information regarding the particulars of the Durant robbery. (Id.) See August 9, 2008 Am. Pet. filed in Thornton Habeas, Ex. D (Green declaration). It is this affidavit, signed under penalty of perjury, that forms the basis of petitioner's claim of newly discovered evidence of actual innocence in the instant case.
On May 5, 2004, petitioner Johnson filed an original petition for a writ of habeas corpus in this court. During its review of Johnson's habeas petition, this court became aware of the declaration sent to petitioner Johnson by inmate Green. As a result of questions raised by Green's declaration, this court appointed counsel for both petitioners Johnson and Thornton in connection with their respective habeas petitions.
Petitioner Johnson, through his appointed habeas counsel, filed an amended petition for a writ of habeas corpus in this court on April 19, 2006. Respondent filed an amended answer on May 24, 2006. Petitioner filed an amended traverse on June 23, 2006.
3. Court Proceedings Filed by Petitioner Thornton
After the California Court of Appeal rejected his claims raised on appeal, petitioner Thornton filed a petition for review, which was summarily denied by order dated February 13, 2002. (August 9, 2008 Am. Pet. filed in Thornton Habeas, Ex. C.) On March 29, 2002, petitioner Thornton filed a petition for writ of habeas corpus in the California Supreme Court. (Id., Ex. B.) That petition was ...