FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He proceeds pro se and in forma pauperis.*fn1 See 28 U.S.C. § 1915. Following remand from the U.S. Court of Appeals for the Ninth Circuit, an evidentiary hearing was held on April 20, 21, and 23, 2009 to address whether petitioner has a valid freestanding claim of actual innocence, and specifically, whether petitioner's newly discovered evidence which would suggest that petitioner has such a claim is credible. For the reasons stated herein, this court finds that petitioner's newly discovered evidence is not credible and that petitioner has not met his burden of affirmatively proving that he is probably innocent. Accordingly, this court recommends that petitioner's application for a writ of habeas corpus be denied.*fn2
In 1986, petitioner was convicted of first degree murder with special circumstances and was sentenced to life without the possibility of parole. The prosecution's theory of the case was that petitioner hired Francis Lee Brewer ("Brewer") to kill Cedric Turner ("Turner"), whom petitioner believed engineered a robbery of him (during a cocaine sale). In attempting to carry out his contract to kill Turner, Brewer mistakenly shot and killed Andre Johnson ("Johnson"). The prosecution therefore proceeded on a theory of transferred intent.
The following factual background is based on the tentative order issued in this action on January 25, 2005 by United States District Judge Singleton, which was based on facts taken from the September 21, 1998 opinion of the California Court of Appeal. Many of the facts below were contradicted by the testimony of witnesses at the evidentiary hearing, and petitioner argues that this statement of facts is "for all purposes unreasonable in light of the new evidence" presented at the evidentiary hearing. See Dckt. No. 191 at 5.
Following the robbery of petitioner, petitioner and two relatives, Jeffrey Taggart ("Jeffrey") and Jester Taggart ("Jester"),*fn3 met at petitioner's house to discuss retaliation. After petitioner recounted his tale of having been robbed at gunpoint, the three decided to shoot Turner. Petitioner told Brewer that Turner had robbed him of $400 and offered Brewer two "Hubbas" (slang for crack cocaine) to give Turner "a good ass whipping." According to the Court of Appeal, Brewer fully understood the true meaning of petitioner's request, i.e., to kill Turner. Brewer immediately went to his girlfriend's house to pick up a.22 caliber sawed-off rifle and ammunition, loaded the gun, placed it in the blue Plymouth he had stolen earlier, and drove to Gateway Drive, the prearranged place for the shooting.
At 6:00 p.m., petitioner and a relative accosted Turner on Gateway Drive and told Turner that they were going "to take him out," and that he "was gonna die." Petitioner and his relative then left to meet a second relative and then the three, all armed with guns, returned to Gateway Drive. Petitioner confronted Turner a second time, repeating his threat that Turner was going to die. Turner retreated to a nearby driveway. One of petitioner's relatives, in petitioner's presence, warned the gathering crowd to disperse because "somebody's going to get shot."
Turner fled into a nearby house where he met Johnson. Johnson persuaded Turner to leave saying, "come on, we'll handle it." Johnson offered Turner a ride to Turner's home, and Turner accepted. They left the residence together. Turner entered Johnson's vehicle and sat in the front passenger seat. In the meantime, Johnson and petitioner engaged in a shouting match and began to push each other.
Meanwhile, Brewer and Bernard Oden ("Oden") arrived at the scene in the blue Plymouth and parked in front of Johnson's car. Brewer got out of the car and stood on the sidewalk observing the argument between petitioner and Johnson. Petitioner walked up to Brewer and pointed out Turner saying, "that is the guy."
Thereafter, Brewer, with Oden sitting in the passenger seat, drove down the street, made a U-turn, and stopped in the middle of the street next to Johnson's car. As one of petitioner's relatives shouted "watch out, he is gonna shoot," Brewer leaned across Oden and fired numerous shots out of the passenger window of the car, hitting and killing Johnson who was standing approximately 5 to 10 feet away. In the view of the appellate court, the evidence overwhelmingly demonstrated that at the time of the shooting, Johnson was reaching for the door of his automobile and was facing toward the crowd in the street rather than toward the car from which the shots were coming.
After the shooting, Brewer disposed of the murder weapon, wiped the fingerprints off the blue Plymouth, and abandoned the car. Then, accompanied by Oden, he returned to the crime scene to ascertain if the victim had been shot. As a next step, Brewer, Oden, and a third man went to petitioner's house on Sawyer street. Brewer and petitioner discussed the shooting and Brewer assured petitioner that he did not have to worry anymore because he (Brewer) had taken care of the job. Petitioner told Brewer that he was willing to pay him, but wished to negotiate the price because the wrong person was shot. They agreed that the price would be reduced from $200 to $100. The Court of Appeal found this version of the facts corroborated by petitioner's statements to Detective Bawart after petitioner's arrest. In those statements petitioner said "I hired Lee Brewer to kill Cedric Turner. He killed the wrong guy. I can't understand why I am being charged."
Shortly after petitioner's trial, petitioner's cousin, Jester, was tried as an adult and convicted of second degree murder for his role in Johnson's murder, and was sentenced as a juvenile to the California Youth Authority for a term of eight years. In late 1987/early 1988, Brewer was tried for his role in Johnson's murder, was convicted of second degree murder, and was sentenced to a term of 15 years to life. An allegation that he had personally used a firearm was found to be not true.
Petitioner filed the initial habeas petition in this court on June 9, 1994 and filed an amended petition on July 15, 1999, asserting four claims: (1) "newly discovered" evidence presented at Brewer's trial, subsequent to his own trial, resulted in an inconsistent verdict entitling him to a new trial; (2) his Fifth Amendment rights were violated when the prosecutor pointed out at trial that petitioner had not denied involvement in the murder in his statement to the police, and the trial court gave an instruction on adoptive admissions from silence in the face of accusations; (3) there was insufficient evidence at trial to prove that he hired Brewer to kill Turner, rather than just assault him; and (4) the prosecutor misstated the evidence at trial. On January 25, 2005, the district judge entered an order tentatively denying the amended petition. By order filed September 7, 2005, the tentative order became final and judgment was entered for respondent.
On October 5, 2005, petitioner filed an appeal to the Ninth Circuit. In the appeal, petitioner argued that the prosecutor's impermissible comment on petitioner's post-arrest silence and the jury instruction on adoptive admissions violated petitioner's Fifth Amendment rights (an issue which was certified for appeal by Judge Singleton); that evidence discovered after petitioner's trial indicates that petitioner was actually innocent of the crime of murder and the special circumstance (an issue which was not certified for appeal); and that there was insufficient evidence to support a verdict of guilty on a theory of transferred intent (an issue which was not certified for appeal). Appellant's Opening Br. at *18-35, 2005 WL 4838037 (9th Cir. Dec. 19, 2005). Respondent countered petitioner's first claim, but declined to address petitioner's actual innocence claim and insufficient evidence claim because those issues had not been certified for appeal by Judge Singleton. Appellee's Br. at *2, n.2, 2006 WL 2630136 (9th Cir. Feb. 22, 2006).
On May 25, 2007, the Ninth Circuit affirmed the district court's decision with regard to petitioner's first claim on appeal (violation of his Fifth Amendment rights with regard to his post-arrest silence), but remanded to the district court with directions to hold an evidentiary hearing on petitioner's uncertified issue of actual innocence.*fn4 The Ninth Circuit stated:
Henry seeks an evidentiary hearing on his actual innocence claim. Habeas petitioners must meet "a reasonably low threshold" in order to receive an evidentiary hearing, showing only a colorable claim for relief and the lack of a factual finding below. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). Here, there is no evidence in the record that Henry received an evidentiary hearing in state court to allow the state court to find facts relevant to the newly-discovered evidence. Henry is entitled to an evidentiary hearing in the district court because if the newly-discovered evidence proves to be true, he would have made out a valid freestanding claim of actual innocence by "affirmatively prov[ing] that he is probably innocent." Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997); Herrera v. Collins, 506 U.S. 390, 417-19, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). If truthful, the testimony of Jeffrey Taggart and Charles Austin would prove that Henry, while possibly guilty of solicitation, conspiracy, and attempt for hiring a hit man, is not guilty of first degree murder. We therefore remand to the district court to hold an evidentiary hearing.
Henry v. Marshall, 224 Fed. Appx. 635, 637 (9th Cir. Mar. 12, 2007). On remand, the district judge referred this matter to the undersigned for the taking of testimony and making of findings and recommendations.
SUMMARY OF EVIDENTIARY HEARING
An evidentiary hearing was held in this action on April 20, 21, and 23, 2009 to address petitioner's actual innocence claim. At the hearing, petitioner offered various exhibits; his own testimony; and the testimony of several witnesses, including Brewer, Mary Gardner ("Gardner"), Jeffrey, Alex Taggart ("Alex"), and Cherry Taggart ("Cherry").*fn5 Petitioner and respondent also stipulated to the admissibility of the state court records from petitioner's trial and from Brewer's trial.
Petitioner argues that Brewer did not shoot and kill Johnson, but that Oden, the passenger in Brewer's car, did. Petitioner argues that this theory is supported by the testimony of Jeffrey, Austin, and Brewer, as well as the testimony of other witnesses and various exhibits offered at the evidentiary hearing. See Pet'r's Post-Hrg. Br. at 8-18.*fn6 At Brewer's trial, and again at the evidentiary hearing, Jeffrey, petitioner's brother, testified that he was in the car with Brewer and Oden at the time of the shooting and that Oden was the shooter. At the evidentiary hearing, Brewer testified that Oden was the shooter. At Brewer's trial, Austin, who met Brewer in jail prior to Brewer's trial, testified that he saw Oden holding a gun and saw shots fired from the passenger (Oden's) window, and that Brewer looked shocked after the shots were fired. At the evidentiary hearing, petitioner testified that he had in jest offered Brewer cocaine to beat up Turner, but that neither party took the offer seriously.*fn7
Respondent counters that petitioner's claim that Oden, not Brewer, shot Johnson and that Oden did so for an independent reason "is fabricated and totally unsupported by any reliable evidence."*fn8 Resp.'s Post-Hrg. Br. at 9-10. Respondent contends that petitioner's witnesses-- specifically, his brother Jeffrey, Brewer, and Austin -- contradict themselves and each other, and are not trustworthy. Id. at 10.
Respondent further argues petitioner's own admissions substantially led to his conviction and that any reasonable doubt of petitioner's guilt was eliminated by the totality of the evidence, namely: the timing and location of the murder and the statements to police by petitioner's brothers and cousin.*fn9 Resp.'s Suppl. Pre-Hrg. Br., Dckt. No. 159, at 19.
Respondent also argues that regardless of the credibility of the newly discovered witnesses, the newly discovered evidence that Oden was the alleged shooter rather than Brewer is irrelevant because of California's "natural and probable consequences" doctrine. The gist of respondent's argument is that California law imposes criminal liability upon all persons "concerned" in the commission of a crime and that petitioner was an aider and abettor who was responsible not only for the particular crime that to his knowledge Brewer contemplated committing, but he is also liable for the natural and reasonable consequences of any act that petitioner knowingly aided and encouraged, including Oden's alleged shooting of Johnson.*fn10
Resp.'s Post-Hrg. Br., Dckt. No. 189, at 23-24. However, as discussed below, the court finds that petitioner has not made a sufficient evidentiary showing that Brewer was not the shooter. Accordingly, this argument need not be addressed.*fn11
Petitioner filed his initial application for federal habeas corpus on June 2, 1994, nearly two years before the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Accordingly, the substantive provisions of AEDPA do not apply to this case. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). Nonetheless, the pre-AEDPA standards are deferential. Under pre-AEDPA standards, a federal court presumes the correctness of a state court's findings of fact and its application of its own law, rather than engage in a de novo review. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Estelle v. McGuire, 502 U.S. 62 (1991). However, a federal court reviews questions of law and mixed questions of law and fact de novo, owing no deference to a state court's legal conclusions. Williams v. Taylor, 529 U.S. 400 (2000) (O'Connor, J., concurring); McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994) (en banc) ("On habeas review, state court judgments of conviction and sentence carry a presumption of finality and legality,... and may be set aside only when a state prisoner carries his burden of 'proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.'"). A petitioner "must convince the district court 'by a preponderance of evidence' of the facts underlying the alleged constitutional error." McKenzie v. McCormick, 27 F.3d at 1418-19 (citing Johnson v. Zerbst, 304 U.S. 458, 469 (1938) and Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976)).
II. Freestanding Actual Innocence -- Herrera v. Collins
The Ninth Circuit remanded this case to the district court to hold an evidentiary hearing regarding petitioner's actual innocence claim. In doing so, the Circuit stated that if petitioner's newly discovered evidence proves to be true, petitioner "would have made out a valid freestanding claim of actual innocence by 'affirmatively prov[ing] that he is probably innocent,'" and cited two cases supporting that proposition: Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) and Herrera v. Collins, 506 U.S. 390, 417-19 (1993).
In Herrera v. Collins, 506 U.S. 390, the Supreme Court assumed, without deciding, that a freestanding claim of actual innocence is cognizable under federal law. In this regard, the court observed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id. at 417. A different majority of the Supreme Court explicitly held that a freestanding claim of actual innocence is cognizable in a federal habeas proceeding. Compare 506 U.S. at 417 with 506 U.S. at 419 and 430-37; see also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have supported a free-standing claim of actual innocence). Although the Supreme Court did not specify the standard applicable to this type of "innocence" claim, it noted that the threshold would be "extraordinarily high" and would have to be "truly persuasive." Herrera, 506 U.S. at 417. More recently, the Supreme Court declined to resolve whether federal courts may entertain independent claims of actual innocence but concluded that the petitioner's showing of innocence fell short of the threshold suggested by the Court in Herrera. House v. Bell, 547 U.S. 518, 554-55 (2006). Respondent petitioned the Supreme Court for a writ of certiorari on this issue, but the Supreme Court denied certiorari review.*fn12
"A habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Carriger, 132 F.3d at 476-77; see also Jackson, 211 F.3d at 1165. The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).
Requiring affirmative proof of innocence is deemed to be appropriate because when a petitioner makes a freestanding claim of innocence, he is claiming that he is entitled to relief despite a constitutionally valid conviction. See Carriger, 132 F.3d at 476. The court must consider the evidence "in light of the proof of petitioner's guilt at trial." Herrera, 506 U.S. at 418. Where the veracity of witnesses is at issue, the court must make a credibility determination by listening to the witnesses, testing their story, and gauging their demeanor.*fn13 Earp v. Oronski, 431 F.3d 1158, 1169-1170 (9th Cir. 2005); see also Carriger, 132 F.3d at 476 (discussed infra). In evaluating credibility, the court should consider factors such as the opportunity and ability of the witness to see or hear or know the things testified to; the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability. See Model Crim. Jury Instr. 9th Cir. 3.9 (2003).
In Herrera, the Supreme Court rejected the petitioner's claim of actual innocence. In doing so, it explained the petitioner's burden as follows:
We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
Petitioner's newly discovered evidence consists of affidavits.... the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed. For instance, the affidavit of Raul, Junior, who was nine years old at the time, indicates that there were three people in the speeding car from which the murderer emerged, whereas Hector Villarreal attested that Raul, Senior, told him that there were two people in the car that night. Of course, Hernandez testified at petitioner's trial that the murderer was the only occupant of the car. The affidavits also conflict as to the direction in which the vehicle was heading when the murders took place and petitioner's whereabouts on the night of the killings.
Finally, the affidavits must be considered in light of the proof of petitioner's guilt at trial -- proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions....
That proof, even when considered alongside petitioner's belated affidavits, points strongly to petitioner's guilt.
This is not to say that petitioner's affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.
Herrera, 506 U.S. at 417-19.
Carriger also illustrates the extraordinarily high burden a petitioner attempting to prove a claim of actual innocence must meet--affirmative proof of actual innocence. 132 F.3d at 477. The physical evidence at Carriger's trial was not strong, and the prosecution primarily relied upon the testimony of a witness, Robert Dunbar, who had contacted the police the morning following the murder with an offer of information in exchange for immunity. Id. at 460. With immunity, Dunbar testified that Carriger had admitted to him committing the crime immediately after it happened. Id. Almost all of the physical evidence used at trial was evidence to which Dunbar had led police the morning following the crime. Id.
Evidence discovered after the trial showed that Dunbar was a career criminal with a pattern of lying to police and shifting blame to others and a long history of violence. Id. at 471-72. Dunbar later confessed in an evidentiary hearing in Carriger's post-conviction proceedings that he had committed the crime, not Carriger. Id. at 471. He described the crime scene in detail. Id. At the time, Dunbar was not granted immunity, and acknowledged that he was opening himself to prosecution for capital murder. Id. at 475. Dunbar's wife also testified at the evidentiary hearing that Dunbar had confessed the crime to her. Id. at 471.Dunbar also confessed that he had committed the crime in a letter to a woman with whom he corresponded, and to his cellmate. Id. at 471-72.
Dunbar recanted his confession three weeks after the evidentiary hearing. Id. at 473. He claimed that the reason that his testimony had been accurate and detailed was that Carriger's lawyers had shown him diagrams of the crime scene. Id. The lawyers testified that he had not been shown such diagrams, and his testimony was never explained by any other evidence. Id. at 475.
The Ninth Circuit held that, despite Dunbar's confession, Carriger had not made out a freestanding claim of actual innocence. The court explained:
Although the post-conviction evidence he presents casts a vast shadow of doubt over the reliability of his conviction, nearly all of it serves only to undercut the evidence presented at trial, not affirmatively to prove Carriger's innocence.
Carriger has presented no evidence, for example, demonstrating he was elsewhere at the time of the murder, nor is there any new and reliable physical evidence, such as DNA, that would preclude any possibility of Carriger's guilt. Although Dunbar's confession exonerating Carriger does constitute some evidence tending affirmatively to show Carriger's innocence, we cannot completely ignore the contradictions in Dunbar's stories and his history of lying. Accordingly, the confession by itself falls short of affirmatively proving that Carriger more likely than not is innocent. Carriger's freestanding claim of actual innocence must fail.
Id. at 477. Thus, even though another person had made a sworn confession to the crime in open court, and there was little evidence of petitioner's guilt that was not discounted by this confession, petitioner had still failed to meet ...