The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2254
A. Proceedings in the District Court
Petitioner Michael Ray Hanline ("Petitioner") filed this Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on April 1, 1999. This is Petitioner's second habeas petition filed in this Court; the Court denied his first petition, filed in 1983, Case No. CV 83-5904-KN(B), on the merits, and entered judgment dismissing the petition with prejudice on August 16, 1984. (Resp't's Mot. to Dismiss Exs. B,C.)
A petitioner may not file a second or successive petition in this Court without obtaining prior permission from a three-judge panel of the Ninth Circuit Court of Appeals. Felker v. Turpin, 518 U.S. 651, 657 (1996); 28 U.S.C. § 2244(b)(3). On June 26, 2004, Respondent moved to dismiss the petition as second and successive; U.S. Magistrate Judge Andrew J. Wistrich issued an order granting Petitioner 45 days (later extended) to seek an order from the Ninth Circuit Court of Appeals authorizing a successive petition before suffering dismissal of his petition in the district court. (Doc. Nos. 82, 83.) On November 23, 2004, the Ninth Circuit granted Petitioner's application for a certificate authorizing a second or successive petition. (Doc. No.93.)
The Petition originally alleged five claims for relief, but Petitioner withdrew all except (1) his claim that the prosecution failed to disclose to the defense potentially exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (2) his claim that he had been deprived of his Sixth Amendment right to effective assistance of counsel at trial. (Doc. No. 173 (Evidentiary Hr'g Closing Args. Tr. ("EH Closing Args.")) at 3-5.)
Magistrate Judge Wistrich conducted an evidentiary hearing on August 12 and August 13, 2008, accepted further briefing, and issued a Report & Recommendation on October 22, 2010. After the parties filed objections and responses thereto, the Report & Recommendation was forwarded to the district court on March 1, 2011.
B. Proceedings in the California State Courts
On September 24, 1980, a jury in the California Superior Court for the County of Ventura convicted Petitioner of the first-degree murder of J.T. McGarry. The jury also found true the allegation that the murder was committed during a burglary. (Clerk's Tr. ("CT") at 214-215.) The trial court sentenced Petitioner to life in prison without the possibility of parole. (CT at 220.)
Petitioner appealed to the California Court of Appeal, and also filed a habeas petition in that court. The state appellate court affirmed petitioner's conviction and denied his habeas petition. (Answer Exs. A-D.) Petitioner then filed a petition for review in the California Supreme Court, which was denied. (Answer Ex.E.)
As set forth in the Report & Recommendation, Petitioner filed several other habeas petitions in the state courts, all of which were denied. (Answer Exs. FI.)
Under 28 U.S.C. § 2254, second or successive petitions are governed by 28 U.S.C. § 2244. Section 2244 establishes several requirements for a petitioner seeking habeas relief. First, subsection (b)(1) requires the district court to dismiss a claim in a second or successive petition if it was presented in an earlier § 2254 petition.
Newly presented claims in a second or successive petition, if not relying on "a new rule of constitutional law made retroactive to cases on collateral review," (§ 2244(b)(2)(A))*fn1 , must satisfy two requirements in order to merit habeas relief:
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(B)(i)-(ii).
Furthermore, subsection (b)(4) reiterates, "[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the ...