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Brown v. Muniz

United States Court of Appeals, Ninth Circuit

May 8, 2018

Gregory L. Brown, Petitioner-Appellant,
v.
W. L. Muniz, Respondent-Appellee.

          Argued and Submitted October 19, 2017 San Francisco, California

          Appeal from the United States District Court for the Northern District of California D.C. No. 4:14-cv-04497-YGR Yvonne Gonzalez Rogers, District Judge, Presiding

          Grace R. DiLaura (argued), Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Petitioner-Appellant.

          Gregory Ott (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

          Before: Consuelo M. Callahan and Carlos T. Bea, Circuit Judges, and Jane A. Restani, [*] Judge.

         SUMMARY [**]

         Habeas Corpus

         The panel (1) affirmed the district court's dismissal of California state prisoner Gregory Brown's second-in-time habeas corpus petition for failure to obtain authorization from this court to file a second or successive petition, and (2) denied his application for leave to file a second or successive petition.

         Brown's second-in-time habeas petition alleged failure to disclose materially exculpatory evidence under Brady v. Maryland. The panel held that Brady claims are subject to AEDPA's second or successive gatekeeping requirements because the factual predicate supporting a Brady claim - the state's failure to disclose exculpatory evidence before trial - exists at the time of the first habeas petition.

         Considering the exculpatory evidence individually and together with the evidence presented at trial, the panel held that Brown fails to make a prima showing of actual innocence by clear and convincing evidence. The panel therefore denied his application for leave to file a second or successive petition.

          OPINION

          CALLAHAN, Circuit Judge

         We must decide whether a prisoner's second-in-time habeas petition based on a claim under Brady v. Maryland, 373 U.S. 83 (1963) is second or successive for purposes of federal court review. The State of California disclosed allegedly exculpatory evidence in Petitioner Gregory Brown's case after Brown's initial federal habeas petition was denied. Because he did not know of the evidence at the time of his initial petition, Brown argues he should not be subject to the more stringent standard for seeking habeas relief in any subsequent federal petition.

         We conclude that Brown's argument is foreclosed by the plain text of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), binding Supreme Court and Ninth Circuit precedent, and Congress' intent in enacting AEDPA. We therefore apply AEDPA's second or successive bar to Brown's claim and assess whether he has made the requisite prima facie showing of actual innocence. Because the alleged exculpatory evidence falls short of this standard, we affirm the district court's dismissal of Brown's petition for lack of jurisdiction and deny his application for leave to file a second or successive habeas petition with the district court.[1]

         I.

         Gregory Brown is currently serving a sentence of fifty-six years-to-life for the February 7, 1995 attempted murder of Ms. Robin Williams. Brown was convicted by a jury of one count of conspiracy to commit murder and one count of attempted murder in California state court on an aiding and abetting theory. His two co-defendants, Wanda Fain and Joseph Diggs, were also convicted.

         A.

         The following facts were presented to the jury at the trial of the three co-defendants. On January 6, 1995, Williams was at the home of Brown, Fain, and Diggs in San Francisco. Williams lived nearby, and frequented Brown's home. Responding to a domestic disturbance nearby, police approached Brown's home, where they found Brown in the doorway holding a bag of crack cocaine and a gun. The police arrested Brown and Williams. That same day, Williams gave a statement to the police that she had seen Brown with both the cocaine and the gun.

         About a week-and-a-half later, and while Brown was awaiting trial on drug charges stemming from his January 6 arrest, Fain and Brown approached Williams at a neighbor's home. As Brown looked on, Fain gave Williams a note that stated: "Well, well, well, as you know playing with fire get burned. Silence is the very best policy, bitch. P.S.: Chickens get plucked every day, so don't play." Included with the note was an explicit photo of Williams that Brown had taken years earlier. Fain then told Williams that Brown wanted to speak with her. Williams refused because she was scared. Fain and Brown left the residence.

         Brown later ran into Williams on the street. Brown told her that he would take care of her if she did not testify against him in his drug case. After that conversation, Williams resumed her visits to Brown's residence where, on at least one occasion, the two smoked crack cocaine.

         According to Williams, on the day of the attempted murder, she traveled to and from Brown and Fain's residence several times, smoking crack cocaine throughout the day. When she arrived at the residence at 7 p.m. to see Fain, she saw that Brown and Fain were talking (Diggs was also present), and so left to take a walk. She returned about five minutes later. By that time Brown had left. Fain asked Williams if she wanted to go to a "trick house" on Third Street so that they could prostitute themselves. Williams agreed because she wanted money to pay for more drugs. Williams, Fain, and Diggs left the residence at around 7:30 p.m. Fain told Williams that Diggs was joining them to provide protection. Williams was "very high" at the time. Brown did not accompany them. Notably, expert testimony established that Williams' habitual crack cocaine use, combined with the head injury she sustained from being shot in the head later that evening, could have impaired her memory of that evening's events.

         From that point on, the accounts of Williams, Fain, and Diggs diverge. Williams testified that she, Fain, and Diggs boarded a bus together at around 7:30 p.m. The three departed the bus at the corner of Third and Jerrold Streets. From there, Williams testified that she and Fain walked down the street, laughing and talking, with Diggs following behind. Williams' last recollection before she was shot was a car approaching her from behind. The police never identified the car.

         In contrast, Diggs told Officer Jeffrey Levin that he got off the bus with Williams and then went into a nearby Kentucky Fried Chicken on his own. He stated that he later re-boarded a bus, leaving Williams behind.

         Fain's account of her movements is both internally inconsistent and contrary to Diggs' account. Fain first told Levin that she met up with Diggs for the first time at the Third and Jerrold Street bus stop-i.e., after she departed the bus. But later she said that she got on the bus with both Williams and Diggs.

         The defense introduced several pieces of exculpatory evidence. Besides the fact that no forensics connected Fain or Diggs-let alone Brown-to the attempted murder, the defense also introduced impeachment evidence against Williams. The defense showed that Williams had been involved in altercations with others in the past, was beaten up for committing burglary, and had informed on perpetrators in other crimes-all of which suggested that individuals other than the co-defendants may have had a motive to kill Williams. The jury also heard testimony that a man known as "Tails" had threatened Williams at gunpoint the day before the attempted murder. Finally, the jury heard from Angel Stigert, who found Williams lying in the street after she was shot. Stigert saw a car parked two blocks away with someone standing outside, "crouching over [and] looking toward where [Williams'] body was." Stigert offered a vague description of "a big black person with [a] white T-shirt." The mysterious interloper, thereafter nicknamed "Suspect 1, " was never identified. Despite the exculpatory evidence, the jury convicted Brown, Fain, and Diggs.

         B.

         In 1998, the California Court of Appeal affirmed the convictions and sentences of all three co-defendants and the California Supreme Court denied review. The Court of Appeal discussed the inculpatory facts in Brown's case. On the conspiracy charge, the court noted that (1) Brown had a motive to murder Williams because he was angry with her for talking to the police and wanted to prevent her from testifying against him in his drug case; (2) he demonstrated an intent to act on these motives through specific actions- namely, "he directed Fain to prepare and deliver the threatening note; he gave Fain a suggestive photograph of Williams to attach to the note; he accompanied Fain when the note was delivered but waited outside and had Fain tell Williams that he wanted to speak with her privately"; (3) he told Williams he would protect her if she did not testify against him in his drug case; (4) on the day of the shooting Brown was present with Fain and Diggs at their apartment when Williams arrived; and (5) Brown left shortly before Fain suggested that she and Williams prostitute themselves-an excursion that culminated in Williams' attempted murder. As to the last fact, the Court of Appeal concluded that "[t]he jury could reasonably infer that Brown left the apartment so Williams would not become suspicious: not because he was unaware of some hidden agreement between Fain and Diggs."

         On the charge of aiding and abetting attempted murder, the court found that, based on the same evidence supporting the conspiracy conviction, the jury could have reasonably concluded that Brown at least intended to aid and abet Fain and Diggs in the attempted murder, even if he did not personally intend to kill Williams.

         In 1998, after the Court of Appeal affirmed his convictions, Brown filed a writ of habeas corpus in federal district court, which the court denied on the merits. The court refused to grant a Certificate of Appealability ("COA"), as did the Ninth Circuit, thereby concluding Brown's first attempt at federal habeas relief.

         C.

         New evidence came to light more than a decade later. Between October 2010 and May 2011, the Trial Integrity Unit of the San Francisco District Attorney's ("DA") Office issued letters to the San Francisco County Public Defender's Office and San Francisco Bar Association's Indigent Defense Administrator, stating that three San Francisco Police Department officers had material in their personnel files that was previously undisclosed and which "may be subject to disclosure under Brady v. Maryland (1963) 373 U.S. 83." The letters implicated three officers who were in some way related to Brown's case: Ms. Pamela Hockett (May 19, 2011), Sergeant Michael Hutchings (Apr. 29, 2011), and Sergeant Wallace Gin (Oct. 6, 2010).

         The Hockett information dates back to 1987, the Hutchings information to 1989, and the Gin information to 1988-long before the officers' associations with the Brown, Fain, and Diggs case. The letters state that the DA's office was not conceding that any of the information was exculpatory or that it cast doubt upon the correctness of any convictions.

         The material implicating Hockett is potential impeachment evidence. It shows that more than a decade before Brown's trial, Hockett was arrested on charges of drug possession, carrying a concealed firearm, having a hypodermic needle, and carrying a loaded firearm in a public place. The charges were dismissed. Hockett did not testify at Brown's trial or at any preliminary hearing. She was, however, one of the officers who responded to the crime scene. She also produced a crime scene log listing the comings and goings of police personnel. No claim is made that the crime scene log was inculpatory or exculpatory, in and of itself.

         The material implicating Hutchings is also potential impeachment evidence. The information involves a 1984 charge against Hutchings for loitering where children congregate, resisting arrest, and prostitution. The charges were dismissed after diversion. Like Hockett, Hutchings also did not testify at Brown's trial or at any preliminary hearing. Nor did Hutchings have any involvement in Brown's attempted murder case. Hutchings' association with Brown stemmed from his participation in Brown's January 1995 arrest for drug possession. In fact, Hutchings was a defense witness at a pretrial motion to suppress the drug evidence.

         The material implicating Gin involves an unrelated matter that predated the Williams shooting by seven years.[2]Of the three officers, Gin was the most closely involved in Brown's case: unlike Hockett and Hutchings, Gin testified at Brown's trial. And while Gin had no role in the investigation and did not interview the co-defendants or the victim, he interviewed the driver of a bus who happened upon Williams' body, as well as two passengers on the bus. The ...


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