The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) DIRECTING THAT MATERIALS SUBMITTED FOR IN CAMERA REVIEW BE FILED UNDER SEAL; (2) DENYING PETITIONER'S REQUEST FOR DISCOVERY; (3) DISMISSING FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AS UNTIMELY; AND OF APPEALABILITY (4) ISSUING A CERTIFICATE
Petitioner is a state prisoner proceeding pro se with a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior Court conviction of two counts of attempted murder. (Doc. No. 55.) Petitioner alleges the prosecutor committed misconduct and failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972), and that the Court can reach the merits of his claims irrespective of any procedural bar because he can satisfy the "actual innocence" standard set forth in Schlup v. Delo, 513 U.S. 298, 315 (1995) (holding that a claim of actual innocence which depends on the validity of ineffective assistance of counsel and Brady claims is not itself a constitutional claim, but is "a gateway though which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.")
In its May 30, 2008 Order, the Court found that this action is untimely because it was filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). (See 5/30/08 Order [Doc. No. 54] at 8-11.) The Court found that Petitioner was not entitled to statutory or equitable tolling, but reserved ruling on whether he could satisfy the Schlup standard until after consideration of his discovery motion. (Id. at 11-18.) As detailed in that Order and more thoroughly below, Petitioner was convicted of driving the vehicle from which his co-defendant Richard Lee was convicted of shooting the Parish brothers. (Id. at 2-3.) Because Petitioner and Lee were both identified by the Parish brothers, and Lee's conviction was later overturned due to newly discovered evidence, the Court reserved ruling on Petitioner's Schlup claim until after it reviewed the evidence relied upon by the San Diego County District Attorney in deciding not to oppose Lee's state habeas petition. (Id. at 15-18.)
The Court expanded the record to include the response to an order to show cause filed in Lee's state habeas case wherein the District Attorney did not oppose granting habeas relief to Lee. (See 1/21/09 Order [Doc. No. 68] at 1-4.) The Court directed Respondent to submit for in camera review all documents upon which the District Attorney based the decision not to oppose Lee's habeas petition, as well as any material which cast doubt on the eyewitness identifications made by the Parish brothers, and reserved ruling on Petitioner's request for discovery of that material pending an in camera review. (Id. at 4-6.) After Respondent submitted the requested material for in camera review, the Court granted Petitioner's Motion to Expand the Record and Motion to Supplement the First Amended Petition to include several declarations, his own, one from fellow prisoner and associate of one of the victims Maurice League, one from Richard Lee and one from Petitioner's attorney, all without prejudice to Respondent's authenticity, credibility and relevancy objections. (Doc. Nos. 80, 84.)
The Court has reviewed the documents submitted by Respondent and finds, for the reasons set forth below, that Petitioner has not satisfied the Schlup standard. Petitioner is therefore not entitled to discovery of these materials under Rule 6(a) of the Rules Governing Section 2254 Cases, which provide that "discovery is available only in the discretion of the court and for good cause shown." Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999); see also Cooper v. Brown, 510 F.3d 870, 877-79 (9th Cir. 2007) (finding district court acted within its discretion in denying discovery under Rule 6(a) where it would not satisfy the Schlup standard). For purposes of appellate review, the Court DIRECTS the Clerk to file under seal the in camera material submitted by Respondent.
Petitioner contends that, in addition to seeking discovery under the habeas rules, he has a post-conviction due process right to this information under Brady, as that right has been interpreted by the Ninth Circuit in Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992) and Osborne v. District Attorney, 521 F.3d 1118, 1128-29 (9th Cir. 2008), reversed by District Attorney v. Osborne, 557 U.S. ___, 129 S.Ct. 2308 (2009). (Pet.'s Reply [Doc. No. 66] at 2.) In Osborne, the Ninth Circuit found a limited constitutional right to post-conviction access to physical evidence in order to conduct DNA testing which was not available at the time of a prisoner's trial. Osborne, 521 F.3d at 1128-29. The Supreme Court reversed, finding that there is no such constitutional right, rejected the holding in Osborne and Goldsmith that Brady applies in such a situation, and reiterated that federal due process is not violated unless the state court procedures for access to such evidence "'offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' or 'transgresses any recognized principle of fundamental fairness in operation.'" Osborne, 129 S.Ct. at 2319-20, quoting Medina v. California, 505 U.S. 437, 446 (1992). Petitioner has made no such showing regarding California's procedures. Osborne, 129 S.Ct. at 2321 ("[I]t is Osborne's burden to demonstrate the inadequacy of the state-law procedures available to him in state post-conviction relief.") Even if he could make such a showing, Petitioner does not seek evidence that would exonerate him. Unlike Osborne, where new and more sophisticated DNA testing methods had been developed since the defendant's trial and had the potential to prove his innocence, Petitioner is merely seeking discovery of the District Attorney's files which, for the reasons set forth below, do not exonerate him.
Petitioner's reliance on Goldsmith is similarly unavailing. The Court in Goldsmith held that a respondent to a federal habeas petition has an obligation to either turn over exculpatory semen evidence or inform the district court that no such evidence exists. Goldsmith, 979 F.2d at 749-50. Petitioner here is not seeking physical evidence capable of exonerating him. Rather, he is seeking access to the District Attorney's file which, for the reasons set forth below, does not exonerate him. In any case, the holding in Goldsmith that Brady applied in such a situation was specifically rejected by the United States Supreme Court in Osborne. Osborne, 129 S.Ct. at 2319-20.
II. Petitioner has not satisfied the Schlup standard
"In order to pass through Schlup's gateway, and have an otherwise barred constitutional claim heard on the merits, a petitioner must show that, in light of all the evidence, including evidence not introduced at trial, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2003), quoting Schlup, 513 U.S. at 327. In applying this standard, "'[a] petitioner need not show that he is 'actually innocent' of the crime he was convicted of committing; instead, he must show that '"a court cannot have confidence in the outcome of the trial."'" Majoy, 296 F.3d at 776, quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1987) (en banc), quoting Schlup, 513 U.S. at 316. For the following reasons, Petitioner has not satisfied this standard, even in light of the materials submitted by Respondent for in camera review.
Petitioner was convicted on April 12, 1996, after a joint trial, of two counts of attempted murder as the driver of a car from which his co-defendant Richard Charles Lee was found to have shot two brothers, Mark and Michael Parish. Petitioner is currently serving two life sentences plus seven years in state prison. Lee obtained habeas relief from the trial court on August 31, 2000, several months after his and Petitioner's direct appeal ended. (Pet. [Doc. No. 1] Ex. E, In re Lee, No. HC16243 (Cal. Sup. Ct. Aug. 31, 2000).) The People did not oppose Lee's habeas petition, but "conceded that there appears to be newly discovered evidence which is sufficiently credible to cast doubt on the integrity of [Lee's] convictions." (Id. at 1.) A letter dated July 14, 1998, sent by the District Attorney to Lee's attorney, states that the District Attorney had received third-hand information regarding Lee which was being disclosed pursuant to Brady. (Traverse [Doc. No. 31] Ex. A.) In that letter, the District Attorney informed Lee's counsel that Darnell Jackson, through his attorney, had approached the District Attorney with an offer of proof regarding information that Jackson had "about certain unsolved cases." (Id.) The letter states that Jackson informed the District Attorney that Petitioner and Arnold Adkins were the people who shot the Parish brothers, that Jackson had "described for his attorney the facts of how and where the Parish brothers were shot," that Jackson's "statements were consistent with the police reports with the exception of Adkins being identified as one of the shooters instead of Lee," and states that Adkins was recently deceased. (Id.) The letter reports that Jackson made the following statement:
Jackson stated that Richard Lee was in fact involved in a shooting that same day, but not the shooting of the Parish brothers. Jackson told his attorney that Richard Lee met up with Adkins and [Petitioner] at Anthony Reilly's house after the shooting of the Parish brothers. Jackson stated that Lee came from a car function at Martin Luther King Park. Jackson reportedly told his attorney that when Adkins and [Petitioner] told Lee about the Parish brothers shooting, Lee became excited and wanted to do a shooting also. Jackson stated that the group was aware of a party in Emerald Hills so they went there to do a shooting. They saw a group and parked 1/2 block away, Lee walked up to the group and fired several rounds into the crowd and then fled back to the car. Jackson stated that the person killed was named "Gee Wiz." I checked with SDPD homicide detectives and there was a person with the moniker Gee Wiz killed about one hour after the Parish brothers shooting. (Id.)
Petitioner, through counsel, filed his own state habeas petition on May 10, 2002. (Lodgment No. 12 at 13.) Petitioner alleged in that petition that Lee's attorney had conducted an investigation based on the information contained in the July 14, 1998 letter, and had discovered that Jackson was also an informant in another case regarding Skyline gang members, that Jackson was in the witness protection program and unavailable, and that Lee's attorney had obtained declarations from individuals from the Skyline area corroborating Jackson's statement that Adkins had shot the Parish brothers. (Id. at 13-14.) Those declarations are attached to the Traverse (Doc. No. 31) as Exhibits B-D.
Petitioner's counsel indicated in the state habeas petition that he had conducted his own investigation based on the information provided in Lee's habeas case, and had received a letter from Roy Vinson, Adkins's uncle, "advising me that he had information that petitioner had been wrongly convicted in the shooting of the Parish brothers in case no. SCD 116366. Mr. Vinson advised me that Darnell Jackson was the driver of the vehicle from which Arnold Adkins had shot the Parish brothers." (Id. at 5-6.) Counsel also stated that he had been contacted by Arnold Johnson, a cousin of Adkins, on June 10, 2001, who "informed me that at the funeral of Arnold Adkins, Darnell Jackson admitted to being the driver of the vehicle used in the shooting of the Parish brothers. Mr. Johnson further informed me that Arnold Adkins had also informed him of that fact in late 1996." (Id. at 6.) Finally, counsel stated that "Shortly after obtaining the declaration of Arnold Johnson, I was informed of a former girlfriend of Darnell Jackson, one Tatianna Daniels who had made statements to others that Darnell Jackson had personally confessed to his involvement in the shooting of the Parish brothers. [¶] I spent many months attempting to get in contact with 'Tatianna,' known to me only by that name." (Id.) Petitioner presents the declarations of Vinson, Johnson and Daniels here just as they were presented to the state courts. (Pet. [Doc. No. 1] Exs. A-C.)
The state trial court issued an order to show cause in Petitioner's habeas action, and the District Attorney responded with evidence that Vinson, Johnson and Daniels had provided prior inconsistent statements regarding Jackson's involvement in the Parish brothers shooting, were all associated with the same gang to which Petitioner belonged, the Skyline Pirus, and that Vinson and Johnson had been convicted of multiple felonies and were serving life sentences. (Lodgment No. 14.) The appellate court denied relief on the basis that "the 'newly discovered' evidence presented herein is clearly insufficient to support a conclusion that points unerringly to Petitioner's innocence." (Lodgment No. 16, In re Stewart, No. HC 17038, slip op. at 3 (Cal. Sup. Ct. Dec. 17, 2002).) The court found that "the evidence is not credible because of inherent inaccuracies and witness bias. Moreover, it does not completely undermine the prosecution's case or point unerringly to Petitioner's innocence, and the evidence includes inadmissible hearsay." (Id.) The appellate court denied a subsequent habeas petition in a four-page order in which the appellate court agreed with the conclusions of the trial judge regarding the reliability of the Vinson, Johnson and Daniels declarations and the inadmissibility of the hearsay contained therein, and concluded that: "The declarations at best raise an issue of credibility without providing a complete defense." (Lodgment No. 18, In re Stewart, No. D041599, slip op. at 3-4 (Cal.App.Ct. May 23, 2003.) The state supreme court summarily denied a subsequent habeas petition presenting the same claims. (Lodgment Nos. 19-20.)
Petitioner alleges in the First Amended Petition here that the prosecutor committed misconduct and violated Brady and Giglio by: (1) failing to disclose a statement by William Allen, Petitioner's friend and fellow gang member, which impeached Kevin Brown, a friend and former member of one of the Parish brothers; (2) presenting perjured testimony of the Parish brothers; and (3) failing to disclose evidence bearing on the credibility of the Parish brothers, including the evidence provided by Darnell Jackson as well as any and all information obtained during the investigation leading to the non-opposition to Lee's state habeas petition. (First Amended Petition "FAP" [Doc. No. 55] at 6-8d.) Because this action ...