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Alvaro v. A. K. Scribner

August 19, 2011

ALVARO QUEZADA, PETITIONER,
v.
A. K. SCRIBNER, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DEPART FROM THE NINTH CIRCUIT MANDATE

I. Background

This case is before the Court on remand from the Ninth Circuit for an evidentiary hearing and additional proceedings. See Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010). Petitioner Alvaro Quezada was convicted of first degree murder and conspiracy to commit murder, Cal. Penal Code §§ 182, 187, and is currently serving a sentence of life without the possibility of parole. The parties are familiar with the facts and lengthy procedural history of this case, (see Docket No. 47 at 1-3), and only the relevant portions will be repeated here.

The Ninth Circuit's remand order was issued during the pendency of an appeal from Senior District Judge Ronald S.W. Lew's November 21, 2007, judgment denying this petition for writ of habeas corpus. (Docket Nos. 47-50.) One of the grounds for relief was Petitioner's claim that the prosecution withheld exculpatory evidence about benefits provided to informant Joseph Aflague in exchange for his testimony at Petitioner's trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). In an October 26, 2007, Report and Recommendation, I concluded that Petitioner's Brady claim was likely subject to a procedural bar because the Los Angeles County Superior Court had denied Petitioner's state habeas corpus petition as untimely.*fn1 (Docket No. 47 at 37-38 & n.16.) However, given the uncertainty about whether California's timeliness bar was an independent and adequate state basis for denying collateral relief, see Townsend v. Knowles, 562 F.3d 1200, 1208 (9th Cir. 2009), abrogated by Walker v. Martin, ---- U.S. ----, 131 S.Ct. 1120, 1128 (2011), I addressed Petitioner's Brady claim on the merits without deciding if the claim was procedurally barred. (Docket No. 47 at 37-41.) The denial of Petitioner's Brady claim was based on the finding that Petitioner had failed to produce evidence establishing that the prosecution "withheld any information at all, let alone favorable evidence." (Id.) A certificate of appealability was granted on a different claim in the petition, but not on the Brady claim. (Docket No. 53.)

During appellate proceedings in the Ninth Circuit, Petitioner filed a motion to remand the petition based on newly discovered evidence that money had in fact been given to Aflague for his cooperation with police. Quezada, 611 F.3d at 1166. On July 16, 2010, the Ninth Circuit remanded the case to this Court, finding that Petitioner was entitled to an evidentiary hearing under Townsend v. Sain, 372 U.S. 293, 313 (1963), because he had presented newly discovered evidence that he had been diligent in trying to obtain and which, if proven, would entitle him to relief:

Quezada presents evidence that Aflague reported that from 1997 to 2007 he received between $9,000 and $25,000 for his cooperation with law enforcement. In a December 11, 2008, declaration, Aflague stated that, contrary to what was previously represented to the court, the relocation funds and compensation he received were not for his testimony in the Eulloqui case. He also indicated that he lied about his compensation while testifying in another case in 2007, because he was angry and frustrated with the defense attorney in that case. This satisfies the fourth prong of Townsend. See id. ...

The evidence allegedly withheld by the state in this case is favorable impeachment evidence involving a key government witness. The evidence indicates that the government never informed Quezada or his counsel of substantial compensation that the government paid to Aflague, the only witness that linked Quezada directly to the murder of Bruce Cleland. ... The evidence also indicates that this witness, Joseph Aflague, has previously perjured himself, in this case or another case, regarding the compensation that he received from the government. Quezada, 611 F.3d at 1167.

The Ninth Circuit noted that Respondent did not deny the allegations regarding the newly discovered evidence, "but instead assert[ed] that remand is inappropriate because Quezada's claim is procedurally barred. The government argues that Quezada must seek leave to file a successive habeas petition. There is no support for this contention. Townsend mandates an evidentiary hearing." Id. Accordingly, the Ninth Circuit remanded the petition for an evidentiary hearing to:

[1] determine the admissibility, credibility, veracity, and materiality of newly discovered evidence, [.and then] [2] determine whether the new facts render Petitioner's Brady claim unexhausted, [.and then] [3] consider whether Petitioner is procedurally barred from proceeding in state court, [.] [4] if [Petitioner] is not procedurally barred, the court should stay and abey federal proceedings so that Petitioner may exhaust his claims in state court, [.] [5] if [Petitioner's] claim is procedurally barred, the district court should proceed to determine whether [Petitioner] can show cause and prejudice or manifest injustice to permit federal review of the claim. Id.

On remand, the Federal Public Defender was appointed to represent Petitioner, and on August 26, 2010, the parties' entered into a stipulation for discovery in preparation for the evidentiary hearing. (Docket Nos. 59, 66, 68.) The Court resolved one discovery dispute, but discovery otherwise proceeded without incident until May 2, 2011, whenRespondent filed a motion to stay discovery pending resolution of his motion in the Ninth Circuit to recall the mandate based on the United States Supreme Court decisions in Cullen v. Pinholster, ---- U.S. ----, 131 S.Ct. 1388 (Apr. 4, 2011) and Walker v. Martin, ---- U.S. ----, 131 S.Ct. 1120 (Feb. 23, 2011). Discovery was stayed on May 24, 2011. (Docket Nos. 81, 86.)

On June 16, 2011, the Ninth Circuit denied Respondent's motion to recall the mandate, but indicated that Respondent was "free to argue to the district court that [Pinholster] is intervening controlling authority that requires the district court to depart from the mandate of this court." (Docket No. 89, Ex. A.) On June 24, 2011, Respondent filed a motion to depart from the mandate in this Court, and on July 22, 2011, Petitioner filed an opposition. (Docket Nos. 92, 94.) Argument on the motion was heard on August 2, 2011.

II. Standard of Review

A decision on whether to depart from the mandate of an appellate curt is generally evaluated under the law of the case doctrine. See e.g., Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir. 1993). In the Ninth Circuit, "'The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.'" In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)); see also Thompson v. Paul, 657 F.Supp.2d 1113, 1120 n.5 (D. Ariz. 2009) (explaining discretionary nature of the doctrine: "The difference between the law of the case and res judicata is that 'one directs discretion, the other supersedes it and compels judgment.'") (quotingUnited States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987)). An exception to this rule applies when "intervening controlling authority makes reconsideration appropriate." Rainbow, 77 F.3d at 281. Intervening controlling authority "includes changes in statutory as well as case law." Jeffries v. Wood, 114 F.3d 1484, 1489 ...


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