Opinion
Case No. EDCV 00-530 VAP AJWx
08-24-2011
MICHAEL RAY HANLINE, Petitioner, v. GEORGE GALAZA, Respondent.
ORDER DECLINING TO ADOPT
REPORT AND RECOMMENDATION
AND DENYING PETITION FOR
WRIT OF HABEAS CORPUS UNDER
I. BACKGROUND
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. F-I.)
II. LEGAL STANDARD
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)), must satisfy two requirements in order to merit habeas relief:
Petitioner explicitly has stated he is not seeking relief under subsection 2244(b)(2)(A). (Doc. No. 217 (Resp. to Objections to Magistrate Judge's Report & Recommendation) at 7-8.)
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and28 U.S.C. § 2244(b)(2)(B)(i)-(ii).
(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.
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 requirements of this section." 28 U.S.C. § 2244(b)(4) (emphasis added).
III. DISCUSSION
A. The Requirements of § 2244(b)(2)(B) Apply Here
1. Application to the Brady Claim
The Court declines to accept the conclusion in the Report & Recommendation that Petitioner need not satisfy the due diligence and "clear and convincing evidence" requirements established in 28 U.S.C. § 2244(b)(2)(B)(i) and (ii), but rather need only meet a pre-AEDPA showing of "cause and prejudice" in order to proceed with his successive petition. (See Report & Recommendation ("R. & R.") at 27-31.)
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
First, as noted above, the plain language of § 2244(b)(4) directs the district court to dismiss a second or successive petition, despite issuance of a certification from the circuit court under § 2244(b)(3), unless the petitioner has satisfied all the requirements of § 2244(b). This directive is unambiguous. The Report & Recommendation does not find that Petitioner has satisfied both the due diligence and "clear and convincing" evidence prongs as required under § 2244(b)(3) and (b)(2)(B), nor after a careful review of the record, does the district court find that Petitioner has made such a showing. See discussion at 8.
Second, the Report & Recommendation relies on the Ninth Circuit's decision in United States v. Lopez, 577 F.3d 1053, 1063-1066 (9th Cir. 2009), cert. denied, 130 S. Ct. 1718 (2010). In Lopez, as the Report & Recommendation acknowledges, the Circuit considered but did not decide whether a successive federal habeas petitioner raising a Brady claim must satisfy AEDPA's stringent requirements under § 2244(b)(2)(B). Although discussing in dicta whether the more lenient pre-AEDPA "cause and prejudice" standard applied, the Circuit did not resolve the question, as it found Lopez did not meet even that lower threshold. Lopez, 577 F.3d at 1067. Thus, Lopez explicitly refused to provide the exception from AEDPA's requirements for Brady claims that Petitioner seeks here.
Finally, at least two other circuits that have addressed this issue have found that Brady claims raised in successive petitions must satisfy AEDPA's requirements. See, e.g., Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1260 (11th Cir. 2009) (per curiam) (holding that all second-in-time Brady claims relying on events that occurred before the filing of the first petition are subject to AEDPA's gatekeeping provisions), cert. denied, 129 S. Ct. 1305 (2009); Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000) (same, where petitioner failed to show due diligence in attempting to ascertain relevant facts), cert. denied, 532 U.S. 925 (2001); but see Douglas v. Workman, 560 F.3d 1156, 1171, 1187 (10th Cir. 2009) (per curiam) (declining to apply § 2244(b) to a petitioner who, through "no fault of his own," had been unable to include a Brady claim in his first petition, and treating petitioner's second petition as a "supplement" to first petition rather than a successive petition). Another district court within this circuit also has held that Brady claims raised in successive petitions must satisfy AEDPA's requirements. See Fellman v. Davison, No. C10-001101 CRB, 2011 WL 2471579, at *1 (N.D. Cal. June 22, 2011) ("Lopez does not create authority for the Court to except Brady claims [from § 2244(b)], however suggestive its dicta may be.").
Although the Report & Recommendation, relying on dicta in Lopez, reasons that applying § 2244(b) to Brady claims in successive petitions would have "perverse results" by creating "an incentive for the prosecution to suppress evidence for as long as possible . . . ," (R. & R. at 28), § 2244(b)(4)'s mandatory language is unequivocal and unambiguous. To carve out an exception to § 2244(b)(2)'s threshold requirements for Brady claims would render subsection (b)(4) superfluous for all such claims. "'A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .'" Hibbs v. Winn, 542 U.S. 88, 101 (2004) (citing 2A N. Singer, Statutes and Statutory Construction § 46.06, at 181-86 (rev. 6th ed. 2000)).
2. The Merits of the Brady Claim
The Report & Recommendation does not find expressly Petitioner has failed to satisfy subsection (b)(2)(B)(ii) of § 2244, i.e., showing by "clear and convincing evidence" in light of the evidence as a whole that if not for the Brady violation no reasonable jury would have convicted him, but that is the reasonable inference to be drawn from the lengthy justification for application of the lower "cause and prejudice" standard. The district court has reviewed the entire record independently and concludes Petitioner has not satisfied 28 U.S.C. § 2244(b)(2)(B)(ii), which applies to this second, successive petition.
Petitioner points to the evidence the prosecution suppressed, and argues its timely disclosure would have enabled him to discredit various prosecution witnesses, including Mary Bischoff, his former lover and the prosecution's "key" witness, and Bruce Robertson, the victim's former attorney who also represented several witnesses in the case. Petitioner also contends the suppressed evidence was exculpatory, as it tends to implicate third persons in McGarry's murder. (Evidentiary Hearing Exs. ("EH Exs.") 1, 2.)
The Brady evidence consists of reports prepared by law enforcement investigators; as described in more detail in the Report & Recommendation, the "Eight Page Report" memorializes a telephone call from "A," a confidential informant and the former employer of Bischoff and McGarry, to law enforcement officers investigating McGarry's death. According to "A," Mary Bischoff called him from Los Angeles International Airport and described McGarry's murder in detail. Bischoff's alleged statements to "A" differed from her later statements to the authorities, and from her trial testimony.
The other component of the Brady evidence is the "Twelve-Page Report," consisting of five shorter reports; to the extent material, it reflects telephone calls about McGarry's death from informants who appeared to tie the murder to a cocaine trafficking ring. (EH Exs. 10, 11, 13.)
The state's case against Petitioner at trial included evidence of:
• his motive to kill McGarry, i.e., jealousy over McGarry's on-and-off sexual relationship with Bischoff (Rep.'s Tr.("RT") at 693-695);
• Petitioner's statements that he knew there existed a contract to kill McGarry (RT at 1041);
• Petitioner's threats to kill McGarry because he owed money to Bischoff (RT at 701-02, 704, 767);
• Petitioner's suspicious behavior immediately after McGarry's disappearance (RT at 957 (Petitioner's reaction to Bischoff when she found McGarry's possessions in Petitioner's possession)); (id. at 993 (Bischoff's fear of Petitioner immediately after learning of McGarry's death and her desire to leave Petitioner as soon as possible because he "might kill me or hurt me some way. . . I felt like I was being watched too close."));
• Petitioner's possession of items immediately or soon after McGarry's death that belonged to McGarry, including a metal cash box, a credit card, an orange pillowcase, McGarry's wallet, McGarry's briefcase, a jarful of coins, an IOU to McGarry, and Department of Motor Vehicle registration and ownership certificates for McGarry's vehicles (RT at 949-52, 959, 962-64, 987);
• Petitioner's use of McGarry's American Express charge card after the victim's death (RT at 963-66, 968, 975);
• Petitioner's registration in a motel under McGarry's name after the victim's death but before his body had been discovered (RT at 960-70);
• McGarry's statements to others that he feared harm from Petitioner, and he needed arms to defend himself (RT at 712, 764-65);
• the presence of .38 caliber shells in the stolen van Petitioner was driving when arrested (RT at 632);
• the presence in the van of tape similar to the tape used to bind the victim's body (RT at 804-09); and
• Petitioner's possession of a loaded .38 caliber handgun when he left the residence he shared with Bischoff the night of McGarry's murder (RT 829-31).
The cause of McGarry's death was multiple gunshot wounds from a .38 caliber weapon. (RT at 395, 469.)
None of the evidence that is the basis for the Brady claim would have directly supported Petitioner's alibi defense; it did not corroborate Petitioner's version of his whereabouts on the night when McGarry was murdered. Rather, as described in detail in the Report & Recommendation, the Brady evidence would have provided fodder to impeach Mary Bischoff, the prosecution's key witness, on conflicting accounts she had given the authorities, and tended to implicate others in McGarry's murder. (R. & R. at 35-40.) Bischoff, however, was cross-examined by Petitioner's defense counsel at trial for more than a full trial day, and the jury heard of her illegal drug use, her marital history, the offer of prosecutorial immunity she enjoyed for her testimony, and the inconsistencies in her testimony, including discrepancies between her trial testimony and the prior statement she gave to the Ventura County District Attorney's Office on December 9, 1978, at length. (EH Ex. 26.) Given the evidence that linked Petitioner to McGarry's murder, and in light of § 2244(b)(2)(B)(ii)'s injunction to view the allegations "in light of the evidence as a whole," Petitioner has not shown by clear and convincing evidence that no reasonable jury would have convicted him if the Brady material had been known to Petitioner at the time of his trial. Accordingly, Petitioner has not satisfied the requirements of § 2244(b)(2)(B)(ii) insofar as it is based on the Brady claim.
As the Court finds Petitioner does not satisfy § 2244(b)(2)(B)(ii), it need not and does not consider whether he satisfies the due diligence requirement of subsection (B)(i).
2. The Ineffective Assistance of Counsel Claim
Petitioner has not satisfied § 2244(b)(2)(B) with respect to his other remaining claim, that he was denied his Sixth Amendment right to the effective assistance of trial counsel.
The Report & Recommendation did not address this claim as it recommended the petition be granted on the basis of the Brady claim.
The Petition was prepared and filed by counsel but nevertheless it is difficult to ascertain the precise nature of the Sixth Amendment claim set forth therein. Claim One in the Petition is entitled "Duty of Due Diligence," thus failing to state a federal constitutional claim. Claim Two is entitled "Deprived of 6th Amendment Right; failure to call material witnesses; failure to introduce evidence; failure to recuse prosecutor; incompetence to handle case; improper conduct and drug abuse." (Pet. at 6.) In support of this claim, Petitioner explains
Trial counsel failed to properly investigate potential witnesses to support petitionr's [sic] defense. Petitioner had a medical condiction [sic] which was never brought up at trial[.] One witness fully recanted her testimony to defense counsel and defense counsel never brought it up in court. The recantation of testimony was in a letter and in the possession of trial counsel and was never produced even at sentencing.(Pet. at 7.)
Petitioner subsequently both expanded and narrowed the basis for his Sixth Amendment claim; in the Hearing Brief filed by his counsel before the evidentiary hearing conducted in August 2008, Petitioner limited the scope of his ineffective assistance of counsel claim to the failure of his trial lawyer to call certain witnesses "who could have presented an alternative version of the events leading up to and following the murder." (Doc. No. 180 (Pet'r's Post Hr'g Br. on the Merits ("Pet'r's Post-Hr'g Br.")) at 18.) In written briefing, Petitioner's counsel listed several bases for the Sixth Amendment claim, but in the closing arguments after the hearing, he noted that a number of these were abandoned. (Pet'r's Post-Hr'g Br. at 6-7; EH Closing Args. at 2-5.) Petitioner's Post-Hearing Brief described the testimony each witness either gave at the hearing or in declaration form, or would have given if he or she had testified, and argued why trial counsel's failure to obtain such testimony prejudiced Petitioner. Accordingly, Petitioner is deemed to have waived any basis for his Sixth Amendment claim other than the failure to present testimony from the witnesses identified.
At the evidentiary hearing, Petitioner did not question Bischoff on the subject of whether she had recanted her trial testimony, and explicitly withdrew reliance on that issue. (Evidentiary Hearing Tr. ("EH I") at 10, August 12, 2008.)
Respondent objects to Petitioner's reliance on the declarations of witnesses Temple, Morselli, and Cheshire, and the testimony of Koni Burgess and Nichols; Petitioner contends, however, these exhibits were moved and received into evidence at the evidentiary hearing. (See Doc. No. 185 (Resp't's Post-Hr'g Br. on the Merits ("Resp't's Post-Hr'g Br.") at 3 & n.1; Pet'r's Resp. to Resp't's Post-Hearing Br. at 3-4.) The transcript reveals that in response to the Magistrate Judge's inquiry regarding objections to the receipt into evidence of Petitioner's Exhibits 1 through 23, Respondent's counsel replied: "I believe that 1 through 23 we don't have any specific objections except to the extent, as your Honor indicated, I do have objections that some of these reports, for example, are multiple hearsay, so I'm a little reticent [to] adopt the Court's position." The court then asked if there was "any reason they can't be received?" to which Respondent's counsel replied, "No, no, or read. I would hope the Court would -" and the court interjected "If you make an objection to portions of them as we go along, of course I'll rule on them." Following this interchange, Petitioner's counsel moved into evidence Exhibits 1 through 13 - only - and Respondent's counsel responded he had no objection to Exhibits 1 through 11.
Thus, it appears that Petitioner did not move into evidence any exhibits other than 1 through 13. As the Magistrate Judge may have considered the other exhibits proffered by Petitioner at the evidentiary hearing, they are discussed herein to a limited extent. Petitioner did not call these witnesses at the evidentiary hearing, however, when their testimony would have been subject to cross-examination.
Insofar as Petitioner in various places and at various times mentioned in passing other factual predicates for his ineffective assistance claim, (e.g., failure to move to recuse the prosecutor, failure to present medical evidence of Petitioner's ruptured spleen, or "misconduct by taking over Petitioner's case" (EH Closing Args. at 4)), he cannot succeed on them. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("[C]onclusory allegations that are not supported by specific facts do not merit habeas relief."). To the extent Petitioner's counsel referred to trial counsel Thomas Weems's illicit drug use, he explained he did so only for "background" and not as a separate factual predicate for the Sixth Amendment claim. (EH Closing Args. at 52.)
a. 28 U.S.C. § 2244 (b)(2)(B)(i): Due Diligence
As the ineffective assistance of counsel claim was not raised in his first habeas petition, Petitioner has the burden of showing "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." 28 U.S.C. § 2244(b)(2)(B)(i). Petitioner has not satisfied that burden.
In his brief on the procedural aspects of the Petition, Petitioner does not address the § 2244(b) due diligence and "clear and convincing evidence" requirements for his Sixth Amendment claim, and makes no effort to demonstrate that either of them have been satisfied.
In his brief on the merits of the claims, Petitioner's counsel argues that the failure to call five witnesses, Koni Burgess, Jack Janis, Dan Cheshire, Robert Temple, and Gary Nichols, at Petitioner's trial constituted ineffective assistance of counsel. (Pet'r's Post-Hr'g Br. at 31-32.) Petitioner does not address, however, much less demonstrate, why the factual predicate for this claim could not have been discovered with due diligence at the time he filed his first habeas petition in 1983. In his briefing, Petitioner discusses only the requirements imposed by Strickland, with no explanation why the claim could not have been brought in the first petition.
It appears that Petitioner abandoned any Sixth Amendment claim based on his trial counsel's failure to call a few other witnesses initially identified in the Evidentiary Briefing or at the hearings. Even assuming the Sixth Amendment continues to encompass those witnesses, however, the result here is unchanged. For example, Petitioner claimed in his post-hearing brief that failure to call Mari Morsell was a basis for his Sixth Amendment claim; Ms. Morsell's 1995 declaration, for example, establishes at most that in "1978 or 1979" Bruce Robertson hosted a party at his house where cocaine was used. (EH Ex. 19.) Petitioner's counsel also raised the failure to call Mary Bischoff, although she was cross-examined extensively by trial counsel and no additional grounds for examination are noted (other than what has been covered with respect to the Brady claim, above). (Pet'r's Post-Hr'g Br. at 6.)
Under Strickland v. Washington, 466 U.S. 668, 688 (1984), a habeas petitioner seeking to establish a claim based on ineffective assistance of counsel must establish both (1) "counsel's representation fell below an objective standard of reasonableness," and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
To the extent Koni Burgess's testimony would have been helpful to Petitioner, see discussion at 20-23, for example, there is no explanation why Petitioner was not aware of the information Burgess allegedly possessed at the time the first petition was filed. According to Burgess, she and Petitioner had had a sexual relationship at one time, and "partied together" regularly in 1978. Petitioner was similarly familiar with the other witnesses on whom he relies for this claim; of particular significance is Robert Temple, whose declaration states he was hired in "1980 or 1981" - two or three years before Petitioner's first federal habeas petition was filed - to conduct investigations on behalf of Bo Messer, originally charged as a co-defendant in McGarry's murder. (EH Ex. 22, 12.) Petitioner's appellate counsel then hired Temple to conduct investigations on Petitioner's behalf in "1983 or 1984" and Temple interviewed Burgess in connection with that appointment. (Id. ¶¶ 3, 4.)
In United States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011), the Ninth Circuit considered the successive habeas petition of a federal prisoner brought pursuant to 28 U.S.C. § 2255, noting the resemblance for purposes of its analysis between § 2244, governing § 2254 petitions, and § 2255(h). Like Petitioner here, Buenrostro sought to bring ineffective assistance of counsel claims he had not raised in his earlier habeas petition. Id. at 723. The Ninth Circuit held he could not do so because he "had a ripe ineffective assistance of counsel claim that he could have brought in his first § 2255 motion." Id. at 726. The petitioner's claim that he "had no reason to know he could bring such a claim . . . is not determinative to his right to relief." Id. at 726. As he could not show he had obtained new evidence "that could clearly and convincingly prove his innocence" or had "the benefit of a new, retroactive rule of constitutional law," his second and successive petition failed. Id.
Buenrostro squarely bars Petitioner's ineffective assistance claims here. Like Buenrostro, Petitioner's claims were ripe when his first petition was filed, and he has made no showing whatsoever of due diligence. Having failed to meet his burden as to this requirement, his Sixth Amendment claim fails.
b. "Clear and Convincing" Evidence
Petitioner's second burden is to show that "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 [him] guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii). Before Petitioner can demonstrate he was denied the effective assistance of counsel at trial, he must satisfy this "clear and convincing evidence" prong. In other words, before the Court considers whether or not Weems failed to provide Petitioner with effective assistance of counsel under the standard set forth in Strickland, Petitioner must show that "but for" this failure, no reasonable jury would have convicted him of McGarry's murder. Notwithstanding Petitioner's failure to meet the first requirement of § 2244(b)(2)(B), the Court has considered whether he has met his burden as to the second requirement, and concludes he has not.
The testimony from the five witnesses identified by Petitioner falls far short of establishing his actual innocence. Petitioner relies heavily on the 1995 recorded statement of Koni Burgess, primarily for two points: (1) she last saw McGarry on the evening of November 10, 1978, when he dropped her and another girl off at a bar, after Bruce Robertson and another unidentified man arrived at McGarry's house; and (2) she observed that McGarry was suffering discomfort and pain from abdominal surgery in the fall of 1978.
Burgess's statement was given under oath but she was not subject to cross-examination. Although it was proffered at the evidentiary hearing, Burgess was not called to testify nor was she deposed at the location where she was then incarcerated.
Burgess testified that in 1978 she was a 17 year old runaway, was sexually involved with McGarry, and also worked for him at times as a prostitute. (EH Ex. 14, at 4, 20, 49-51.) She also had been sexually involved with Petitioner. (Id. at 15-16.) Petitioner and McGarry were "buddies." (Id. at 13.) On November 10, 1978, she went to McGarry's house sometime in the late afternoon or early evening; she and McGarry had sexual intercourse and she smoked some marijuana and ingested cocaine. (Id. at 35-36, 38.) She testified repeatedly that her recollection of what occurred that night was very poor because marijuana use badly impairs her memory. (Id. at 36 ("I don't know. I was smoking pot so, you know, I don't know."), 67.) McGarry told her he was expecting "some guys" to come over, and at some point in the evening, Bruce Robertson and another man she did not know arrived at the house. (Id. at 56-58, 64.) She was vague and contradictory about the time the men arrived, her estimates ranging from 7:00 p.m. to 8:30 p.m., saying "You know, when you smoke pot, you know, time just goes. It was seven, eight, 8:30, something like that." (Id. at 67.) She was equally vague and contradictory about the time McGarry left the house and took her to a bar, at first saying it was 9:00, then 10:00, then 11:00, then 10:30. (Id. at 78.)
Petitioner argues that this testimony, if presented to the jury, would have shown the prosecution's proposed timeline of events on the night of the murder was "seriously flawed." (Pet'r's Post-Hr'g. Br. at 7.) Burgess's testimony was far too vague and contradictory to have dealt a deadly blow to the prosecution, however. Her estimates of the arrival of Robertson and the third man varied by several hours, as did her estimates of Petitioner's departure from the house.
As to Petitioner's physical condition in November 1978, Burgess described him as a big man and "strong," but stated that after Petitioner returned to California at the end of the summer that year, she often saw him grimacing in pain. (EH Ex. 14, at 19-20, 97.) Every time she was asked about Petitioner's physical condition, however, Burgess volunteered that the basis for her belief that he was in discomfort or pain was that Petitioner had declined her offer to perform fellatio. (Id. at 91, 92, 97, 98.) In any event, however insubstantial or questionable the basis for Burgess's testimony regarding Petitioner's physical condition in November 1978, the cause of McGarry's death was multiple gunshot wounds. Even if Petitioner's theory is that Burgess's testimony would have shown he was too weak to have disposed of McGarry's body by throwing it down the side of the highway to the location where it was found, that is immaterial: her testimony, even if believed, does nothing to demonstrate that Petitioner was not capable of firing a .38 caliber handgun.
Petitioner also points to Burgess's statement that Robertson later threatened her. Burgess did state at several points she felt intimidated by Robertson, describing at length (and somewhat incoherently) his unusual height and size. (Id. at 42-43, 58, 69 ("I just know I looked up and I was sitting on the couch and he was almost, like, to the ceiling. And, well he was up there. . . He probably looked really big to me because I was high on marijuana. I don't know if you have ever been high, but, you know, he was big.").) She stated she encountered him on a couple of occasions after November 10, and that he gave her "mean" looks, or "was shooting daggers" at her. (Id. at 122.) On one occasion, at a party where many others were present, she said Robertson came up to her and told her to be careful or she would end up like J.T. McGarry. (Id. at 103-04.) She also testified somewhat vaguely that she thought McGarry and Robertson were involved in dealing cocaine, although she was not present during any transactions and first met Robertson on November 10, 1978. (Id. at 43-47.) Hence, Robertson's alleged threat could have been directed toward any inclination by Burgess to reveal her beliefs on that subject.
Burgess's testimony as to Robertson, as well as the other points, simply does not amount to the "clear and convincing" evidence of actual innocence required under § 2233(b)(2)(B)(ii). None of the other evidence Petitioner relies upon suffices either.
Jack Janis's 1995 declaration recounts a statement allegedly made by Bruce Robertson, to the effect that Robertson represented the Hell's Angels, who wanted Petitioner to "sit in his own mud on this one." The declaration also states that Petitioner told Janis sometime before December 1978 that Petitioner had trouble digesting food because of surgery he underwent in October 1978, and that Petitioner had shown Janis an abdominal scar. (EH Ex. 15, ¶¶ 3, 7.)
Daniel Cheshire's recorded statement sets forth that he met Petitioner at about 9:00 or 9:30 p.m. on November 10, 1978, at the home of "Fat Sammy" in San Fernando, California; Petitioner was repairing his motorcycle and appeared "a little stiff." The two men exchanged tales of motorcycle-related injuries and Petitioner showed Cheshire his abdominal scar. Cheshire left the house about 11 or 11:30 p.m. (EH Ex. 18, at 8-10, 13, 18.)
Gary Nichols, who worked in Robertson's law office as a law clerk from mid-1978 until May 1979, testified at the evidentiary hearing he saw Robertson use illegal drugs in his law office during the relevant time, and saw Pennzoil cans at the law office; he thought they looked like the false-bottomed Pennzoil cans he had seen at McGarry's residence that contained cocaine. (Evidentiary Hearing Tr. ("EH II") at 9-13, 15-16, August 13, 2008; EH Ex. 16.)
The Court finds that all of this testimony, viewed in light of the evidence as a whole, would not be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found Petitioner guilty of McGarry's murder. In fact, during closing argument after the evidentiary hearing on these claims, Petitioner's counsel only argued that but for the asserted malfeasance of trial counsel, there was a "reasonable probability that the outcome of the proceeding would have been different." (EH Closing Args. at 60.) This is a far cry from the standard set forth is § 2244(b)(2)(B)(ii).
Accordingly, Petitioner is not entitled to relief under 28 U.S.C. § 2254 on his Sixth Amendment claim.
IV. CONCLUSION
The District Court declines to accept the Report and Recommendation of U.S. Magistrate Judge, and after a complete and thorough review of the record finds that Petitioner is required, and has failed, to meet his burden under 28 U.S.C. § 2244 with respect to either of his two remaining claims for relief pursuant to 28 U.S.C. § 2254. Accordingly, the Petition is denied and dismissed with prejudice.
VIRGINIA A. PHILLIPS
United States District Judge