Robert Jones, Jr. v. Charles Ryan
Filing
FILED OPINION (RONALD M. GOULD, RICHARD C. TALLMAN and CARLOS T. BEA) AFFIRMED. In No. 13-16928, the district court s dismissal of Jones s Rule 60(b) motion is AFFIRMED. In the alternative, Jones s motion to seek relief from judgment under Rule 60(b) is DENIED. Pursuant to 28 U.S.C. 2244(b)(3)(A), Jones s as-construed application in No. 13-16928 and his separate application in No. 13-73647 to file a second or successive habeas corpus petition in the district court are DENIED. Each party shall bear its own costs. . FILED AND ENTERED JUDGMENT. [8827751] [13-16928, 13-73647]
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 1 of 43
FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
OCT 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GLEN JONES, Jr.,
Petitioner - Appellant,
No. 13-16928
D.C. No. 4:03-cv-00478-DCB
v.
OPINION
CHARLES RYAN,
Respondent - Appellee.
ROBERT GLEN JONES, Jr.,
No. 13-73647
Petitioner,
v.
CHARLES RYAN,
Respondent.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted October 10, 2013*
*
The panel unanimously concludes this case is suitable for decision without
(continued...)
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 2 of 43
San Francisco, California
Before: Ronald M. Gould, Richard C. Tallman, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
GOULD, Circuit Judge:
We confront issues concerning whether and how the United States Supreme
Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), affects the standards
for when a Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”) motion may be
filed, and for when a second or successive 28 U.S.C. § 2254 habeas corpus petition
may be filed.
Arizona death row prisoner Robert Glen Jones, Jr., appeals from the district
court’s order dismissing his motion for relief from judgment filed under Rule
60(b). The district court concluded that Jones’s Rule 60(b) motion sought to raise
new claims such that it actually constituted a second or successive 28 U.S.C.
§ 2254 habeas corpus petition that the district court could not consider absent
authorization from our court. See Jones v. Ryan, No. CV-03-00478, 2013 WL
5348294, at *1, *5 (D. Ariz. Sept. 24, 2013) (“Petitioner is attempting, under the
guise of a Rule 60(b) motion, to gain a second opportunity to pursue federal habeas
*
(...continued)
oral argument. See Fed. R. App. P. 34(a)(2).
2
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 3 of 43
relief on new grounds.”); see also 28 U.S.C. § 2244(b)(3). In No. 13-16928, we
grant Jones a certificate of appealability (“COA”), permitting our review of this
appeal, and affirm the judgment of the district court. In No. 13-73647, we deny
Jones’s application to file a second or successive habeas corpus petition.
Because of the expedited nature of this appeal and its death penalty
consequences, however, we also evaluate Jones’s Rule 60(b) motion on the merits
and deny him relief from judgment because he has not satisfied the standards
permitting relief on those grounds. We then construe Jones’s appeal as a request
for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus
petition in the district court pursuant to 28 U.S.C. § 2244(b)(3)(A). See Fed. R.
Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”); see also United
States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011), cert. denied, 132 S. Ct.
1609 (2012).1 Also, in footnote 5, we address Jones’s application in No. 13-73647
for leave to file a second or successive petition for writ of habeas corpus. Because
we conclude that Jones has not met the requirements contained in 28 U.S.C.
1
While United States v. Washington addressed a 28 U.S.C. § 2255 habeas
corpus petition, 28 U.S.C. § 2255 “was intended to mirror § 2254 in operative
effect,” Reed v. Farley, 512 U.S. 339, 353 (1994) (internal quotation marks
omitted), so our analysis of those statutes is largely the same.
3
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 4 of 43
§ 2244(b), for filing a second or successive habeas corpus petition, we deny his
separate request.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
I
Jones was convicted of six murders in Arizona state court and was sentenced
to death in 1998. He was also convicted of first-degree attempted murder,
aggravated assault, armed robbery, and first-degree burglary. Our opinion of
August 16, 2012, affirming the district court’s denial of Jones’s first 28 U.S.C.
§ 2254 federal habeas corpus petition, details the circumstances of Jones’s crimes
and the evidence presented at his trial:
In 1996, six people were killed during two armed robberies in Tucson,
Arizona. On May 30, the Moon Smoke Shop was robbed, where two
victims were killed and a third was wounded by gunfire. On June 13,
the Fire Fighters Union Hall was robbed, and four persons there were
killed.
The Moon Smoke Shop robbery began when two robbers followed a
customer, Chip O’Dell, into the store and at once shot him in the back
of the head. Four employees were in the store: Noel Engles, Steve
Vetter, and Mark Naiman were behind one counter concentrating on
the stock, and Tom Hardman was behind another. After hearing the
gunshot, Engles and Naiman looked up to see a robber in a longsleeved shirt, dark sunglasses, and a dark cowboy hat wave a gun at
them and yell to get down. Naiman recognized the gun as a 9mm.
Engles dropped to his knees and pushed an alarm button.
Engles noticed a second robber move toward the back room and heard
4
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 5 of 43
someone shout, “Get the f* * * out of there!” The gunman at the
counter told Naiman to open the cash register. After Naiman did so,
the gunman reached over the counter and began firing at the others on
the floor. Thinking that the others were dead, Naiman ran out of the
store and called 911 at a pay phone. On the floor behind the counter,
Engles heard shots from the back room and then, realizing the gunmen
had left the store, also ran out of the store, by the back door. Running
up the alley to get help, Engles saw a light-colored pickup truck with
two people in it accelerate and turn on a street into heavy traffic.
Naiman and Engles survived. Vetter also survived, although shot in
the arm and face. O’Dell and Hardman were both killed by close
range shots to the head, O’Dell at the entrance to the store and
Hardman in the back room. Three 9mm shell casings were found in
the store, one beside O’Dell and two near the cash register. Two .380
shells were found near Hardman’s body. Two weeks after the
robbery, Naiman met with a police sketch artist who used his
description of the gunmen to create sketches of the suspects. These
sketches were released to the media in an effort to catch the
perpetrators. At trial, two acquaintances of Jones testified that when
they saw the police sketches their first thought was that they looked
like Jones.
The Fire Fighters Union Hall was robbed two weeks later. There were
no survivors of the violence that befell those present there. Nathan
Alicata discovered the robbery at 9:20 p.m. when he arrived at the
Union Hall and discovered the bodies of Maribeth Munn (Alicata’s
girlfriend), Carol Lynn Noel (the bartender), and a couple, Judy and
Arthur Bell. The police investigation turned up three 9mm shell
casings, two live 9mm shells, and two .380 shell casings. About
$1300 had been taken from the open cash register, but the robbers
were unable to open the safe. The coroner, who examined the bodies
at the scene, concluded that the bartender had been shot twice, and
that the other three victims were shot through the head at close range
as their heads lay on the bar. The bartender's body had a laceration on
her mouth consistent with having been kicked in the face, and Arthur
Bell's body had a contusion on the right side of his head showing he
5
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 6 of 43
was struck with a blunt object, possibly a pistol.
In 1998, petitioner Robert Jones was convicted of these ghastly crimes
of multiple murder and sentenced to death. His co-defendant, Scott
Nordstrom, had been convicted in a separate proceeding six months
earlier. Jones’s theory of the case at trial and on appeal was that Scott
Nordstrom and his brother David Nordstrom committed these
murders, while he was not involved. While there was no physical
evidence or positive eyewitness identifications conclusively linking
Jones to the crimes, both he and his truck matched descriptions given
by survivors of the Moon Smoke Shop robbery. The prosecution’s
case against Jones was based in large part on David Nordstrom’s
testimony. David Nordstrom gave a detailed account of his role as a
getaway driver in the Moon Smoke Shop robbery, and identified
Jones as a robber and shooter, as well as the guns he carried. But that
was not all of the testimony against Jones. Lana Irwin, an
acquaintance of Jones, also testified that she overheard Jones talking
about details of these murders that the police had not released to the
general public. Jones’s friend David Evans gave additional
implicating testimony.
Jones v. Ryan, 691 F.3d 1093, 1096-97 (9th Cir. 2012), cert. denied, 133 S. Ct.
2831 (2013).2
Jones’s convictions and sentence were upheld on direct review, and on state
collateral review and federal habeas corpus review, culminating in our opinion in
Jones v. Ryan, 691 F.3d 1093 (9th Cir. 2012). Jones filed a petition for a writ of
certiorari at the United States Supreme Court, which declined review. Jones v.
2
More details of the crimes and the evidence presented at Jones’s trial are
set forth in our earlier opinion and in the Arizona Supreme Court’s opinion
upholding Jones’s convictions and sentence. See State v. Jones, 4 P.3d 345, 35255 (Ariz. 2000), cert. denied, 532 U.S. 978 (2001).
6
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 7 of 43
Ryan, 133 S. Ct. 2831 (2013). The Supreme Court decided Martinez on March 20,
2012, holding that, in some circumstances, the ineffective assistance of state postconviction relief counsel can serve as cause to excuse the procedural default of an
ineffective-assistance-of-trial-counsel claim. 132 S. Ct. at 1315. Thereafter, on
August 21, 2013, Jones filed a motion in the district court seeking relief from
judgment pursuant to Rule 60(b)(6). Jones sought to assert three new ineffectiveassistance-of-trial-counsel claims based on Martinez, and to assert a new claim for
an alleged violation of Brady v. Maryland, 373 U.S. 83 (1963), during habeas
corpus proceedings.
The State of Arizona (“the State”) moved to dismiss Jones’s self-styled Rule
60(b) motion as an unauthorized second or successive 28 U.S.C. § 2254 habeas
corpus petition. See 28 U.S.C. § 2244(b)(2). The district court agreed with the
State that Jones could not use Rule 60(b) as a vehicle to assert new claims and
dismissed Jones’s appeal for lack of jurisdiction absent authorization from the
Court of Appeals for the Ninth Circuit. Jones, 2013 WL 5348294, at *1. The
district court neither granted nor explicitly denied a COA. This appeal followed.
Jones’s execution has been set for October 23, 2013. As noted above, in No. 13-
7
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 8 of 43
16928 we grant Jones a COA, which is necessary to permit our review of this
appeal.3
II
We review the district court’s decision to dismiss Jones’s Rule 60(b) motion
as an unauthorized second or successive 28 U.S.C. § 2254 habeas corpus petition
3
Were Jones appealing the denial or dismissal of a valid Rule 60(b) motion,
he may have had no need for a COA. See Harbison v. Bell, 556 U.S. 180, 183
(2009) (“[28 U.S.C. §] 2253(c)(1)(A) . . . governs final orders that dispose of the
merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of
the petitioner’s detention.”). Because we affirm the district court’s ruling that
Jones’s purported Rule 60(b) motion was in fact an unauthorized second or
successive 28 U.S.C. § 2254 habeas corpus petition, however, the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, “governs the conditions of [Jones’s] appeal, and so he was required to
seek a COA to obtain appellate review of the dismissal of his habeas petition.”
Slack v. McDaniel, 529 U.S. 473, 482 (2000). We treat Jones’s notice of appeal,
filed on September 24, 2013, as an application for a COA. See Fed. R. App. P.
22(b); Slack, 529 U.S. at 483.
When the district court denies a habeas corpus petition on procedural
grounds and fails to reach the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack, 529 U.S. at 484. Reviewing Jones’s motion, we
conclude that he has satisfied AEDPA’s requirements for a COA by making “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
and by showing that jurists of reason could debate whether the district court
properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized)
second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a
COA, though this of course is not the same as authorizing him to file a second or
successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28
U.S.C. § 2244(b).
8
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 9 of 43
de novo. See Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir. 2005);
Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc).
Rule 60(b) “allows a party to seek relief from a final judgment, and request
reopening of his case, under a limited set of circumstances.” Gonzalez v. Crosby,
545 U.S. 524, 528 (2005). Rule 60(b)(6), the provision under which Jones brought
his motion, permits reopening for “any . . . reason that justifies relief” other than
the more specific reasons set out in Rule 60(b)(1)-(5). Fed. R. Civ. P. 60(b)(6); see
Gonzalez, 545 U.S. at 528-29. A movant seeking relief under Rule 60(b)(6) must
show “‘extraordinary circumstances’ justifying the reopening of a final judgment.”
Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199
(1950)). Such circumstances “rarely occur in the habeas context.” Id.
While the habeas restrictions established by AEDPA “did not expressly
circumscribe the operation of Rule 60(b),” they “are made indirectly relevant . . .
by the fact that Rule 60(b), like the rest of the Rules of Civil Procedure, applies in
habeas corpus proceedings . . . only to the extent that [it is] not inconsistent with
applicable federal statutory provisions and rules.” Id. at 529 (alteration in original)
(footnote omitted) (internal quotation marks omitted). Habeas corpus petitioners
cannot “utilize a Rule 60(b) motion to make an end-run around the requirements of
AEDPA” or to otherwise circumvent that statute’s restrictions on second or
9
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 10 of 43
successive habeas corpus petitions. Calderon v. Thompson, 523 U.S. 538, 547
(1998) (internal quotation marks omitted); see also United States v. Buenrostro,
638 F.3d 720, 722 (9th Cir. 2011) (per curiam) (“[A] state prisoner may not rely on
Rule 60(b) to raise a new claim in federal habeas proceedings that would otherwise
be barred as second or successive under § 2254.”), cert. denied, 132 S. Ct. 342
(2011).
AEDPA generally limits a petitioner to one federal habeas corpus motion
and precludes “second or successive” habeas corpus petitions unless the petitioner
meets certain narrow requirements. See 28 U.S.C. § 2244(b). The statute provides
that “[a] claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless” it “relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable” or on
newly discovered facts that show a high probability of actual innocence. Id.
§ 2244(b)(2)(A)-(B); see also Gonzalez, 545 U.S. at 529-30.
Because of the difficulty of meeting this standard, habeas corpus petitioners
at times have characterized their second or successive habeas corpus petitions as
Rule 60(b) motions. But “[w]hen a Rule 60(b) motion is actually a disguised
second or successive § 225[4] motion, it must meet the criteria set forth in” 28
10
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 11 of 43
U.S.C. § 2244(b)(2). See Washington, 653 F.3d at 1059-60 (discussing a second or
successive 28 U.S.C. § 2255 petition); see also Gonzalez, 545 U.S. at 528.
Our analysis of whether Jones’s motion is a valid Rule 60(b) motion or a
disguised 28 U.S.C. § 2254 habeas corpus petition is informed by the Supreme
Court’s decision in Gonzalez v. Crosby. See Washington, 653 F.3d at 1062.
Neither Gonzalez nor any other Supreme Court case has “adopted a bright-line rule
for distinguishing between a bona fide Rule 60(b) motion and a disguised second
or successive [§ 2254] motion.” Id. at 1060. Rather, Gonzalez held that a
legitimate Rule 60(b) motion “attacks . . . some defect in the integrity of the federal
habeas proceedings,” while a second or successive habeas corpus petition “is a
filing that contains one or more ‘claims,’” defined as “asserted federal bas[e]s for
relief from a state court’s judgment of conviction.” 545 U.S. at 530, 532. Put
another way, a motion that does not attack “the integrity of the proceedings, but in
effect asks for a second chance to have the merits determined favorably” raises a
claim that takes it outside the bounds of Rule 60(b) and within the scope of
AEDPA’s limitations on second or successive habeas corpus petitions. Id. at 532
n.5.
Proper Rule 60(b) motions include those alleging fraud on the federal habeas
corpus court, as well as those in which the movant “asserts that a previous ruling
11
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 12 of 43
which precluded a merits determination was in error—for example, a denial for
such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.”
Id. at 532 nn.4 & 5.
By contrast, Rule 60(b) motions presenting “claims” such that they
constitute, in effect, new requests for relief on the merits include motions to
present “newly discovered evidence . . . in support of a claim previously denied,”
as well as motions contending that “a subsequent change in substantive law is a
reason justifying relief . . . from the previous denial of a claim.” Id. at 531
(citations omitted) (internal quotation marks omitted). Further, “an attack based on
. . . habeas counsel’s omissions” generally does not go to the integrity of the
proceedings; rather, it is a disguised second or successive 28 U.S.C. § 2254 habeas
corpus petition masquerading as a Rule 60(b) motion. Id. at 532 n.5. Such a
motion, “although labeled a Rule 60(b) motion, is in substance a successive habeas
petition and should be treated accordingly.” Id. at 531.
In light of these principles, we must determine whether Jones’s motion
alleges a “defect in the integrity of the federal habeas proceedings” and thus
presents a legitimate Rule 60(b) motion, or whether, as the district court ruled, it
raises “claims” and, “although labeled a Rule 60(b) motion, is in substance a
successive habeas petition [that] should be treated accordingly.” Id. at 531, 532.
12
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 13 of 43
“In conducting this analysis, we consider separately each of the contentions that
are on appeal.” Washington, 653 F.3d at 1064. We consider here Jones’s three
ineffective-assistance-of-trial-counsel claims raised under Martinez and his one
Brady claim.
A
Seeking to reopen his federal habeas corpus proceedings under Rule 60(b),
Jones alleges three ineffective-assistance-of-trial-counsel claims that were neither
presented in state post-conviction proceedings nor included in his initial federal
habeas corpus petition. First, Jones argues, his trial counsel did not challenge the
admissibility of evidence generated by the electronic monitoring system that was
used to track a prosecution witness. Second, Jones contends that his trial counsel
did not call a key rebuttal witness whose testimony, Jones alleges, would have
undercut that of one of the prosecution’s witnesses. Third, Jones argues that his
trial counsel did not object to the state sentencing court’s alleged application of an
unconstitutional causal nexus test, in violation of Eddings v. Oklahoma, 455 U.S.
104 (1982).
Jones contends that he did not have a “fair shot” at raising these ineffectiveassistance-of-trial-counsel claims in his first habeas corpus proceeding because his
habeas corpus counsel, Daniel Maynard, was also his state post-conviction relief
13
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 14 of 43
counsel. As a result, Jones’s argument proceeds as follows: Maynard operated
under a per se conflict of interest during Jones’s habeas corpus proceeding that
precluded him from objectively evaluating the thoroughness of the ineffectiveassistance-of-trial-counsel claims he brought at the state level. In other words,
Jones argues, for Maynard to have brought, at Jones’s first federal habeas corpus
proceeding, the three ineffective-assistance-of-trial-counsel claims that Jones now
seeks to raise in his purported Rule 60(b) motion, Maynard in effect would have
had to allege his own ineffective assistance in not bringing such claims at the state
post-conviction relief stage.
Jones’s argument is premised on the Supreme Court’s decision in Martinez,
which by its terms created a “narrow exception,” 132 S. Ct. at 1315, to the wellestablished rule in Coleman v. Thompson, 501 U.S. 722 (1991), that state postconviction relief counsel’s ineffective assistance cannot serve as cause to excuse
the procedural default of an ineffective-assistance-of-trial-counsel claim. Martinez
held that, in some circumstances, the ineffective assistance of state post-conviction
relief counsel can serve as cause to excuse the procedural default of an ineffectiveassistance-of-trial-counsel claim. 132 S. Ct. at 1315. In light of Martinez, Jones
contends that Maynard limited the claims of ineffective assistance of trial counsel
raised on habeas review because he had a “strong disincentive” to raise those that
14
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 15 of 43
would have required him to assert his own ineffectiveness during state postconviction relief proceedings.
We reject Jones’s argument for three reasons. First, the Supreme Court in
Gonzalez said that “an attack based on . . . habeas counsel’s omissions . . .
ordinarily does not go to the integrity of the proceedings, but in effect asks for a
second chance to have the merits determined favorably.” 545 U.S. at 532 n.5. The
Court in Gonzalez was careful to explain how Rule 60(b) could not be used to get a
second chance to assert new claims.
Second, even if habeas corpus counsel’s conflict of interest could, in some
circumstances, be a defect in the integrity of the proceedings assailable under Rule
60(b), Maynard’s alleged conflict in Jones’s case does not constitute such a defect.
Jones filed his first petition for habeas corpus relief nearly eight years before
Martinez was decided. The district court denied the petition more than two years
before the rule in Martinez was announced. At all times during Maynard’s
representation of Jones in the first habeas corpus proceeding, Coleman’s rule that
state post-conviction relief counsel’s ineffective assistance could not serve as cause
to excuse the procedural default of an ineffective-assistance-of-trial-counsel claim
was settled law. As a result, it cannot be argued that the integrity of Jones’s first
habeas corpus proceeding is in doubt, because a proceeding is not without integrity
15
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 16 of 43
when in accord with law. We reject Jones’s argument that Maynard was
ineffective at Jones’s first habeas corpus proceeding for not trying to make Jones’s
case Martinez long before the Supreme Court granted certiorari in Martinez.
Third, the rule announced in Gonzalez, that a valid Rule 60(b) motion
“attacks . . . some defect in the integrity of the federal habeas proceedings,” id. at
532, must be understood in context generally to mean the integrity of the prior
proceeding with regard to the claims that were actually asserted in that proceeding.
“That [Jones] did not raise in his first [habeas] proceeding the claim[s] he wants to
raise here does not render the adjudication of the claims that he did raise suspect.”
Buenrostro, 638 F.3d at 722. Rule 60(b) does not permit a petitioner to assert
entirely new claims, i.e. “asserted federal bas[e]s for relief from a state court’s
judgment of conviction,” Gonzalez, 545 U.S. at 530, that the petitioner contends
were required to ensure those proceedings’ integrity. Martinez, then, did not
change the rule in Gonzalez that Rule 60(b) cannot be used as a vehicle to bring
new claims. Martinez did not purport to overrule Gonzalez, nor is its language
irreconcilable with that case’s central holding. Gonzalez firmly stands for the
principle that new claims cannot be asserted under the format of a Rule 60(b)
motion, and instead Rule 60(b) is properly applied when there is some problem
16
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 17 of 43
going to the integrity of the court process on the claims that were previously
asserted.
None of Jones’s arguments amounts to an allegation of a “defect in the
integrity of the federal habeas proceedings” that constitutes grounds for a
legitimate Rule 60(b) motion. Id. at 532. Rather, Jones is in essence arguing that
he deserves “a second chance to have the merits determined favorably” in the
context of a second or successive 28 U.S.C. § 2254 habeas corpus petition. Id. at
532 n.5. But the new claims asserted by Jones are “precisely the sort of attack on
the ‘federal court’s previous resolution of a claim on the merits’ . . . that Gonzalez
characterized as a ‘claim’ which is outside the scope of Rule 60(b).” Washington,
653 F.3d at 1064 (citation omitted) (quoting Gonzalez, 545 U.S. at 532).
B
Jones also alleges that the State, during his federal habeas corpus
proceedings, violated Brady by suppressing exculpatory evidence related to the
electronic monitoring system used to track key prosecution witness David
Nordstrom, who Jones says committed the murders for which he was convicted.
Jones asserts that the State was on notice, based on two of his initial habeas corpus
claims, of the possible malfunction of the monitoring system and further that the
17
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 18 of 43
State had a duty to investigate his claims and to disclose the results of its
investigation to Jones.
There are three problems with Jones’s argument. First, as the trial court
noted, “it is highly questionable whether the type of evidence [Jones] alleges [the
State] should have procured and disclosed has any relevancy to the [ineffectiveassistance-of-trial-counsel] claims raised in [Jones’s] federal habeas petition.”
Jones, 2013 WL 5348294, at *5. Under Brady, the prosecution may not suppress,
but rather must disclose, “evidence favorable to an accused . . . where the evidence
is material either to guilt or to punishment.” 373 U.S. at 85. Evidence is “material”
only if “there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” Strickler v.
Greene, 527 U.S. 263, 280 (1999) (internal quotation marks omitted). “A
‘reasonable probability’ of a different result [exists] when the government’s
evidentiary suppression undermines confidence in the outcome of the trial.” Kyles
v. Whitley, 514 U.S. 419, 434 (1995) (internal quotation marks omitted). Here,
where the relevant evidence is not in possession of the police or the prosecution,
and where Jones has failed to make a showing that the evidence would in fact
impeach David Nordstrom’s testimony, we cannot say that the evidence is
“material” for Brady purposes. Because “second-in-time Brady claims that do not
18
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 19 of 43
establish materiality of the suppressed evidence are subject to dismissal under” 28
U.S.C. § 2244(b), United States v. Lopez, 577 F.3d 1053, 1066 (9th Cir. 2009), our
inquiry could end here.
Second, even if the evidence Jones seeks were assumed to be material, the
Brady right of pretrial disclosure available to defendants at trial does not extend to
habeas corpus petitioners seeking post-conviction relief. See Dist. Attorney’s
Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69 (2009) (noting that
upon conviction, a criminal defendant “does not have the same liberty interests as a
free man” and “has only a limited interest in postconviction relief”). In District
Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court
stated that, “Brady is the wrong framework” for evaluating a convicted defendant’s
due process rights in post-conviction relief proceedings. Id. at 69. The State had
no duty to disclose evidence, exculpatory or otherwise, in Jones’s initial federal
habeas corpus proceeding.
Third, even if the alleged evidence were material and even if Jones, as a
habeas corpus petitioner seeking post-conviction relief, were entitled to the
protections of Brady, he would still not be entitled to the evidence he seeks
because that evidence was not in possession of the State, and hence cannot be said
to have been suppressed by the State. To comply with Brady, a prosecutor “has a
19
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 20 of 43
duty to learn of any favorable evidence known to the others acting on the
government’s behalf in this case, including the police.” Strickler, 527 U.S. at 281
(internal quotation marks omitted). Here, Behavioral Intervention, Inc. (“BI”),
which manufactured the electronic monitoring device used to track David
Nordstrom, was not “acting on the government’s behalf in this case.” Rather, BI
was merely in a contract with the state to provide monitoring equipment for
parolees and other persons in Pima County released to home confinement as a
condition of their supervision by the Arizona Department of Corrections. Jones
alleges that BI knew its device had problems, not that the State knew of those
problems. “The prosecution is under no obligation to turn over materials not under
its control.” United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). Jones
had equal access to information regarding BI’s alleged problems as did the State,
as evidenced by his attaching to his Rule 60(b) motion news stories from 1997 and
1998 documenting such problems. Jones cannot now complain that the State
violated Brady at the habeas corpus stage “by not bringing the evidence to [his]
attention.” See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (internal quotation
marks omitted).
To sum up, it is speculative whether the evidence Jones seeks from BI would
have been favorable to Jones, there is no Brady obligation during habeas corpus
20
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 21 of 43
proceedings under Osborne, and there is no way the information can be considered
to have been suppressed by the State. There was no Brady violation.
Pursuant to the Supreme Court’s instructions in Gonzalez, we have
examined each claim in Jones’s Rule 60(b) motion to determine whether it alleges
a defect in the integrity of the prior federal habeas corpus proceeding or instead
presents “claims” constituting a renewed request for relief on the merits. See
Washington, 653 F.3d at 1066. Because we have determined that Jones’s
purported Rule 60(b) motion is in fact a disguised 28 U.S.C. § 2254 habeas corpus
petition, we affirm the district court’s dismissal of the motion in light of Jones’s
failure to comply with the “stringent standard for presenting a second or
successive” 28 U.S.C. § 2254 habeas corpus petition laid out in 28 U.S.C.
§ 2244(b). Id. at 1065. Before he brought his disguised Rule 60(b) motion, Jones
did not move in this court for an order “authorizing the district court to consider
the application.” 28 U.S.C. § 2244(b)(3)(A). Because we have not yet authorized
Jones to file such a petition, we hold that the district court was without jurisdiction
to entertain Jones’s “successive (albeit disguised)” 28 U.S.C. § 2254 habeas corpus
petition. See Washington, 653 F.3d at 1065.
III
21
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 22 of 43
Assuming for the sake of argument that Jones’s motion is permissible under
Rule 60(b) as a challenge to a defect in the integrity of his prior habeas corpus
proceedings under Gonzalez, an assumption we are willing to make to expedite and
promote a full review in this death penalty context, we address whether Jones has
satisfied the standards for relief from judgment under that Rule. While it is
ordinarily a district court that conducts this inquiry in the first instance, “appellate
courts may, in their discretion, decide the merits of a Rule 60(b) motion in the first
instance on appeal.” Phelps v. Alameida, 569 F.3d 1120, 1134-35 (9th Cir. 2009)
(citing Gonzalez, 545 U.S. at 536-38). Exercising that discretion now, again with
the purpose to expedite, we hold alternatively that Jones has not met the standard
for relief under Rule 60(b), in light of the relevant factors identified in Phelps v.
Alameida, and we deny him relief.
As outlined above, Rule 60(b) “allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances.”
Gonzalez, 545 U.S. at 528. Rule 60(b)(6), the provision under which Jones
brought his motion, permits reopening for “any . . . reason that justifies relief”
other than the more specific reasons set out in Rule 60(b)(1)-(5). Fed. R. Civ. P.
60(b); see Gonzalez, 545 U.S. at 528-29. A movant seeking relief under Rule
60(b)(6) must show “‘extraordinary circumstances’ justifying the reopening of a
22
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 23 of 43
final judgment.” Gonzalez, 545 U.S. at 535 (quoting Ackermann, 340 U.S. at 199).
Such circumstances “rarely occur in the habeas context.” Id. Our decision in
Phelps identified six factors to guide our determination regarding when a petitioner
seeking relief under Rule 60(b) demonstrates such “extraordinary circumstances.”
569 F.3d at 1135. These factors are particularly useful when, as here, we are asked
to apply Rule 60(b)(6) to a rejected petition for habeas corpus. Id. at 1135 n.19.
Jones contends that Martinez created a change in the law that constituted
“extraordinary circumstances” such that Rule 60(b) relief is warranted. We have
held that “the proper course when analyzing a Rule 60(b)(6) motion predicated on
an intervening change in the law is to evaluate the circumstances surrounding the
specific motion before the court.” Id. at 1133. A decision to grant Rule 60(b)(6)
relief, then, is a “case-by-case inquiry” that requires us to balance numerous
factors, but it is clear that “a change in the law will not always provide the truly
extraordinary circumstances necessary to reopen a case.” Id. (internal quotation
marks omitted). We evaluate Jones’s argument in light of the six factors
articulated in Phelps.
The first factor is a change in the law. Id. at 1135-36. Jones argues that
Martinez was a “sea change in the Supreme Court’s procedural jurisprudence that
requires relief from judgment in this captial habeas corpus case.” But in Lopez v.
23
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 24 of 43
Ryan, 678 F.3d 1131 (9th Cir. 2012), cert. denied, 133 S. Ct. 55 (2012), we stated
that Martinez was a “remarkable—if ‘limited’—development in the Court’s
equitable jurisprudence” that “weigh[s] slightly in favor of reopening [the
petitioner’s] habeas case.” Id. at 1136 (quoting Martinez, 132 S. Ct. at 1319). This
factor weighs slightly in Jones’s favor.
The second factor is the petitioner’s exercise of diligence in pursuing his
claim for relief. Phelps, 569 F.3d at 1136. Jones filed his Rule 60(b) motion on
August 21, 2013, more than 17 months after the Supreme Court decided
Martinez on March 20, 2012. Jones contended in his motion that 17 months “is not
significant in the history of a capital case,” and that the delay was attributable to
his prior, allegedly conflicted counsel Maynard who had a “disincentive to reevaluate the record and the claims he earlier brought . . . or to perform any
additional investigation.” Jones now argues that his “delay has not been
unreasonable” because “newly-appointed, non-conflicted counsel” filed the Rule
60(b) motion less than four months after appointment. This factor has little weight
in either direction.
The third factor is whether granting the Rule 60(b) motion to reopen the case
would upset “the parties’ reliance interest in the finality of the case.” Id. at 1137.
Jones, noting that “[t]here is no such thing as a partial execution,” argues that
24
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 25 of 43
because he has not been executed, the State cannot claim a reliance interest on any
already executed judgments. But this is not so. Jones’s execution warrant, which
set his execution date, issued on August 27, 2013, and as we held in Lopez, “[t]he
State’s and the victim[s’] interests in finality, especially after a warrant of
execution has been obtained and an execution date set, weigh against granting
post-judgment relief.” 678 F.3d at 1136. This factor weighs strongly against
Jones.4
The fourth factor “examines the delay between the finality of the judgment
and the motion for Rule 60(b)(6) relief.” Phelps, 569 F.3d at 1138 (internal
quotation marks omitted). This factor stands for the “principle that a change in the
law should not indefinitely render preexisting judgments subject to potential
challenge.” Id. The Supreme Court denied certiorari on Jones’s initial habeas
corpus petition on June 17, 2013, and Jones filed his Rule 60(b) motion in the
district court on August 21, 2013. This two-month gap was not a long “delay.”
This factor weighs slightly in Jones’s favor.
4
An Arizona execution warrant expires 24 hours from the date it sets for the
execution. Ariz. R. Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for
October 23, 2013, and therefore expires the next day. Because it would take far
longer than that to reopen and adjudicate the claims Jones now wishes to pursue,
the State would be forced to obtain a new warrant if Jones is allowed to proceed
but then loses. Thus, the likely need to restart the entire execution process must be
considered in weighing the State’s interest in finality.
25
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 26 of 43
The fifth factor looks to the closeness of the relationship between the
decision resulting in the original judgment and the subsequent decision that
represents a change in the law. Id. at 1138-39. Jones argues that “Martinez
confers an equitable remedy to excuse” his habeas corpus counsel’s alleged per se
conflict of interest and that he should be restored to the status quo ante. Martinez,
however, says nothing about conflicts of interest, nor does it overrule the
proposition in Gonzalez that “an attack based on . . . habeas counsel’s omissions
. . . ordinarily does not go to the integrity of the proceedings.” 545 U.S. at 532 n.5.
This factor weighs heavily against Jones.
The sixth factor concerns comity. Phelps, 569 F.3d at 1139. In Phelps, we
said that “we need not be concerned about upsetting the comity principle when a
petitioner seeks reconsideration not of a judgment on the merits of his habeas
petition, but rather of an erroneous judgment that prevented the court from ever
reaching the merits of that petition.” Id. Phelps was appealing the dismissal of his
habeas corpus petition as untimely; granting his Rule 60(b) motion would not have
upset principles of comity. Here, though, Jones seeks to bring merits claims
disguised as a Rule 60(b) motion because his initial habeas corpus petition was
already fully adjudicated on the merits and denied. Granting his motion would
upset principles of comity. This factor weighs strongly against Jones.
26
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 27 of 43
The equitable factors described above give little support for reopening
Jones’s case. On balance, the Supreme Court’s decision in Martinez does not
constitute such an “extraordinary circumstance” as to warrant reopening of Jones’s
case under Rule 60(b)(6), even were we to disregard that Jones’s assertion of new
claims takes him outside of Rule 60(b). See Gonzalez, 545 U.S. at 536 (“It is
hardly extraordinary that subsequently, after petitioner’s case was no longer
pending, this Court arrived at a different interpretation.”).
IV
Given the expedited nature of this appeal and its death penalty context, we
now construe Jones’s appeal as a request for authorization to file a second or
successive 28 U.S.C. § 2254 habeas corpus petition in the district court pursuant to
28 U.S.C. § 2244(b)(3)(A). See, e.g., Washington, 653 F.3d at 1065 (doing the
same); Cooper v. Calderon, 274 F.3d 1270, 1274-75 (9th Cir. 2001) (per curiam)
(doing the same); Thompson, 151 F.3d at 922 (“Certainly, if at all possible, a
decision upon whether a successive application should be granted . . . should be
decided on the merits rather [than] having a person executed because of time
constraints and procedural niceties.”); cf. Libby v. Magnusson, 177 F.3d 43, 46 (1st
Cir. 1999) (“[N]o useful purpose would be served by forcing the petitioner to
retreat to square one and wend his way anew through the jurisdictional maze. We
27
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 28 of 43
have the power, in the exercise of our informed discretion, to treat this appeal as if
it were . . . a motion for authority to proceed under section 2244(b)(3)(A) . . . and
we will do so.” (citations omitted)).5
5
So construed, we reject Jones’s application for the reasons stated in the
opinion. Jones also filed yesterday, in No. 13-73647, a separate application for
leave to file a second or successive habeas corpus petition. In his application,
Jones seeks permission to pursue a freestanding claim of actual innocence under
Schlup v. Delo, 513 U.S. 298 (1995), and a claim that the State violated his due
process rights by withholding potentially exculpatory evidence under Brady.
Schlup requires a habeas petitioner pursuing a claim of actual innocence to show
“that it is more likely than not that no reasonable juror would have convicted him
in the light of the new evidence” before he will be granted relief. Id. at 327. Jones
argues that it is an open question whether it is this test or AEDPA’s more
restrictive standard for filing a second or successive petition, see 28 U.S.C.
§ 2244(b)(2)(B), that applies to freestanding claims of actual innocence. See
Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004) (en banc).
Without deciding that question here, we conclude that even if the Schlup
standard applies to Jones’s actual innocence claim, its requirements have not been
satisfied. Jones has not shown that the evidence he seeks would exonerate him.
Indeed, Jones concedes that, “[i]t may be that [he] will not prevail” even if he
obtains discovery, and he can only state that the evidence he seeks “could”
exculpate him. Such speculative theories do not show “that it is more likely than
not that no reasonable juror would have convicted [Jones] in the light of the new
evidence.” Schlup, 513 U.S. at 327. Schlup exists to protect petitioners with
legitimate claims of actual innocence, not to permit exploratory proceedings in a
second or successive habeas corpus petition, by a petitioner who has arrayed
against him strong evidence of guilt.
This result is informed by and consistent with our analysis of Jones’s similar
Brady claim that he brought as part of his Rule 60(b) motion. Both claims rely on
the theory that the electronic monitoring records would erode David Nordstrom’s
credibility. The Rule 60(b) version of this claim failed the 28 U.S.C.
§ 2244(b)(2)(B) standard for largely the same reason that this version fails the
Schlup standard: even if the electronic monitoring evidence shows what Jones
(continued...)
28
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 29 of 43
Construing Jones’s appeal as a belated request for authorization to file a
second or successive habeas corpus petition in the district court, we deny his
request to do so for failure to comply with the “stringent standard for presenting a
second or successive” 28 U.S.C. § 2254 habeas corpus petition laid out in 28
U.S.C. § 2244(b)(2). Washington, 653 F.3d at 1065.
Before AEDPA was enacted in 1996, “a complex and evolving body of
equitable principles informed and controlled by historical usage, statutory
developments, and judicial decisions” known as the abuse-of-the-writ doctrine
guided federal courts in their consideration of second or successive habeas corpus
petitions. McCleskey v. Zant, 499 U.S. 467, 489 (1991); see also Lopez, 577 F.3d
at 1059. AEDPA codified the judicially established principles of the abuse-of-thewrit doctrine and “greatly restrict[ed] the power of federal courts to award relief to
state prisoners who file second or successive habeas corpus applications.” Tyler v.
Cain, 533 U.S. 656, 661 (2001); see also Lopez, 577 F.3d at 1060-61. Indeed, a
petitioner is generally limited to one federal habeas corpus motion, and AEDPA
permits second or successive motions “only in limited circumstances.” Dodd v.
5
(...continued)
wants it to show, it is not sufficiently exculpatory.
29
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 30 of 43
United States, 545 U.S. 353, 359 (2005). Those limited circumstances are set forth
in 28 U.S.C. § 2244(b), which provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed;
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless-(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(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). Because Jones filed his motion after April 24, 1996, the
effective date of AEDPA, his case is governed by that statute’s stringent standards.
“Permitting a state prisoner to file a second or successive federal habeas
corpus petition is not the general rule, it is the exception, and an exception that
may be invoked only when the demanding standard set by Congress is met.” Bible
v. Schriro, 651 F.3d 1060, 1063 (9th Cir. 2011) (per curiam). Before a petitioner
may file a second or successive habeas corpus petition in the district court, he must
30
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 31 of 43
seek authorization from the relevant court of appeals. 28 U.S.C. § 2244(b)(3)(A).
Construing Jones’s appeal as a request for such authorization, we may not grant
Jones what he seeks unless we determine that he has made a prima facie showing
that his application satisfies the requirements outlined above. Id. § 2244(b)(3)(C);
see also Pizzuto v. Blades, 673 F.3d 1003, 1007 (9th Cir. 2012). We consider now
whether he has made such a showing.
It is undisputed that none of the claims Jones raises in his pending motion
were included in his first federal habeas corpus petition. Whether he may bring
these claims now, then, rests on whether Jones has satisfied one of the two “narrow
exceptions” codified in 28 U.S.C. § 2244(b)(2)—namely whether he has shown
that (1) his claims rely on a new rule of constitutional law made retroactive to
cases on collateral review by the Supreme Court; or (2) new facts, previously
undiscoverable, if proven, would establish his actual innocence by clear and
convincing evidence. See Gonzalez, 545 U.S. at 530.
A
AEDPA permits second or successive review of a claim that “relies on a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A).
This provision sets forth three prerequisites for a permissible second or successive
31
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 32 of 43
petition: (1) the claim must rely on a “new rule of constitutional law”; (2) the rule
must have been “made retroactive to cases on collateral review by the Supreme
Court”; and (3) the claim must have been “previously unavailable.” See Tyler, 533
U.S. at 662. “[T]he Supreme Court is the only entity that can ‘ma[k]e’ a new rule
retroactive,” and it only does so “through a holding.” Id. at 663 (alteration in
original).
Jones’s Brady claim certainly does not rely on a new rule of constitutional
law. His ineffective-assistance-of-trial-counsel claims, however, rely on the
Supreme Court’s decision in Martinez, which held that, in some circumstances, the
ineffective assistance of state post-conviction relief counsel can serve as cause to
excuse the procedural default of an ineffective-assistance-of-trial-counsel claim.
132 S. Ct. at 1315. To present his claims under this prong of the 28 U.S.C.
§ 2244(b)(2) test, Jones must show that Martinez set forth a new, retroactively
applicable rule of constitutional law that was not previously available. While
“there can be no dispute that a decision announces a new rule if it expressly
overrules a prior decision,” Graham v. Collins, 506 U.S. 461, 467 (1993), Martinez
did not expressly overrule any prior decision, including Coleman. Rather,
Martinez “qualifie[d] Coleman by recognizing a narrow exception” to that case’s
rule that state post-conviction relief counsel’s ineffective assistance cannot serve as
32
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 33 of 43
cause to excuse the procedural default of an ineffective-assistance-of-trial-counsel
claim. 132 S. Ct. at 1315. Perhaps more importantly, the Supreme Court
characterized its decision in Martinez as an “equitable ruling,” and not a
“constitutional” one. Id. at 1319. That spells the end of the new-rule exception for
a second or successive petition in Jones’s case because the rule of Martinez, while
new, is not a rule of constitutional law. Further, we have consistently recognized
that Martinez was not a constitutional decision. See, e.g., Detrich v. Ryan, No. 0899001, 2013 WL 4712729, at *3 (9th Cir. Sept. 3, 2013) (en banc) (“[T]he Court
established an equitable rule . . . .”); Buenrostro v. United States, 697 F.3d 1137,
1140 (9th Cir. 2012) (published order) (“Martinez did not decide a new rule of
constitutional law . . . .”).
Because Martinez did not decide a new rule of constitutional law, it cannot
underpin a second or successive habeas corpus petition under 28 U.S.C.
§ 2244(b)(2)(A). See Buenrostro, 697 F.3d at 1139 (“Martinez cannot form the
basis for an application for a second or successive motion because it did not
announce a new rule of constitutional law.”). Other circuits have agreed. See, e.g.,
Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (describing the exception
established in Martinez as an “equitable—as opposed to
constitutional—exception” (internal quotation marks omitted)); Adams v. Thaler,
33
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 34 of 43
679 F.3d 312, 322 n.6 (5th Cir. 2012) (“Martinez does not provide a basis for
authorization under § 2244(b)(2)(A), as the Court’s decision was an ‘equitable
ruling’ that did not establish ‘a new rule of constitutional law.’” (quoting Martinez,
132 S. Ct. at 1319)). Because Martinez was not a constitutional ruling, Jones’s
ineffective-assistance-of-trial-counsel claims presented here cannot be said to
“rel[y] on a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(2)(A).6
Congress, when it passed AEDPA, set forth a “stringent standard for
presenting a second or successive” 28 U.S.C. § 2254 habeas corpus petition.
Washington, 653 F.3d at 1065. So while the Supreme Court used Martinez to
establish a new (equitable) rule regarding what may serve as cause to excuse the
procedural default of an ineffective-assistance-of-trial-counsel claim, the
suggestion that Martinez’s equitable holding modifies AEDPA’s statutory
language is wrong and flies in the face of normal juristic principles. Equity may
6
Having determined that Martinez did not set forth a new rule of
constitutional law, we need not, and do not, reach the question of whether the
Supreme Court has made its holding in Martinez retroactively applicable to cases
on collateral review.
34
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 35 of 43
inform our interpretation of statutory language, but it cannot supplant specific
statutory standards or rewrite the statutory text.
B
Because Jones cannot show that his claims rely on a new rule of
constitutional law, his only avenue for authorization to file a second or successive
petition is 28 U.S.C. § 2244(b)(2)(B), which requires him to “make a prima facie
showing to us that his claim (1) is based on newly discovered evidence and (2)
establishes that he is actually innocent of the crimes alleged.” King v. Trujillo, 638
F.3d 726, 729-30 (9th Cir. 2011) (per curiam) (noting that “[f]ew applications to
file second or successive petitions . . . survive these substantive and procedural
barriers” (alteration and ellipsis in original) (internal quotation marks omitted)).
Under this standard, Jones must first demonstrate that the evidence he puts forward
now is newly discovered—in other words that it “could not have been discovered
previously through the exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i).
And even if Jones could show that his evidence is newly discovered, we would still
be compelled to deny his application unless that evidence “would be sufficient to
establish by clear and convincing evidence that . . . no reasonable fact-finder would
have found [Jones] guilty of the underlying offense.” Bible, 651 F.3d at 1064
(quoting 28 U.S.C. § 2244(b)(2)(B)(ii)).
35
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 36 of 43
Jones’s claims fail on both prongs of this analysis. First, Jones has offered
no indication that the factual predicate for his current claims could not have been
discovered previously through the exercise of due diligence. The factual predicate
underlying each of Jones’s three ineffective-assistance-of-trial-counsel claims, of
course, occurred more than fifteen years ago at Jones’s trial and sentencing.
Moreover, the nature of the evidence Jones now proffers was known to him either
at trial or sentencing and could have been raised then. For example, trial counsel
could have discovered the potential problems associated with Nordstrom’s
electronic monitoring device at least as early as 1997 or 1998, when reports of such
devices’ failures made the news. Jones also gives no reason why trial counsel
could not have investigated Stephen Coats. Jones has presented no evidence
indicating that Coats refused to talk to Jones’s investigator or his attorney, and no
evidence that Coats was unable to speak with the investigator. And trial counsel’s
failure to make an Eddings claim for the alleged use of an unconstitutional causal
nexus test was known to Jones in 1998, at the time of his sentencing. Jones has not
explained why, with the exercise of due diligence, he could not have discovered
this evidence previously.
The factual predicate behind Jones’s Brady claim, meanwhile, could also
have been discovered years before the filing of the current motion. Jones could
36
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 37 of 43
have discovered as early as 1997 that BI was aware of technical problems
associated with its device. Indeed, Jones proffers as evidence of BI’s equipment
problems news stories from 1997 and 1998; surely these accounts could have been
discovered through the exercise of due diligence long before August 21, 2013.
Further, Jones’s parole supervisor, Rebecca Matthews, testified at Jones’s trial that
the monitoring device occasionally generated “some static” or a “busy signal”
when activated by a call from the computer in Phoenix. Jones was on notice in the
late 1990s of the facts underlying his current claims.
Even if Jones’s claims did rest on newly discovered evidence, however, he
would be unable to show that the facts supporting those claims establish his actual
innocence by clear and convincing evidence. On this point, we are bound by
AEDPA’s requirements for presenting a second or successive habeas corpus
petition. Under these requirements, the relevant question is not whether Jones’s
jury would have acquitted him, but whether “in light of the evidence as a whole . . .
no reasonable factfinder would have found [him] guilty of the underlying
offense[s].” 28 U.S.C. § 2244(b)(2)(B)(ii). Jones’s causal nexus claim is not at all
related to actual innocence, while his remaining two ineffective-assistance-of-trialcounsel claims and his Brady claim, even if the facts were true, would not establish
37
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 38 of 43
by clear and convincing evidence that Jones did not commit the crimes for which
he was sentenced to death.
This is so in large part due to the strength of the other evidence against
Jones. Included among this evidence were bullets and shell casings found at the
crime scenes and an autopsy of the victims matching the calibers of the weapons
Jones and his accomplices carried; descriptions from survivors of the Moon Smoke
Shop robbery that matched both Jones and his truck; testimony from two witnesses
at trial that their first thought upon seeing the police sketches of the Moon Smoke
Shop robbery suspects was that one of them was Jones; testimony that Jones told
multiple people who asked if he was involved in the crimes, “[i]f I told you, I’d
have to kill you,” Jones, 691 F.3d at 1099 (alteration in original); and testimony
from David Evans. Evans testified that Jones changed his appearance by cutting
and dyeing his hair and beard from red to black after the murders; that he was told
by Jones, “you don’t leave witnesses” after “giving Jones a hard time about his
similarity to the sketches”; and that Jones went to Phoenix twice in 1996, on one
occasion explaining his trip by saying he could not stay in Tucson because “he
thought some people would be looking for him because he had killed somebody.”
Considering the weight of this other evidence, we conclude that Jones has failed to
show by clear and convincing evidence that no reasonable factfinder would have
38
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 39 of 43
found him guilty of the offenses for which he was convicted, even if he could
prove that the evidence he puts forward now is true. See 28 U.S.C.
§ 2244(b)(2)(B)(ii).
C
“Section 2244(b)(2) applies not only to the underlying conviction but also to
the imposition of the death penalty.” Pizzuto, 673 F.3d at 1010. Jones, to succeed,
must establish “by clear and convincing evidence that . . . no reasonable factfinder
would have found [him] guilty” of the aggravating factors used to justify his death
sentence. 28 U.S.C. § 2244(b)(2)(B)(ii). “A claim of actual innocence of the death
penalty would require a showing that one of the statutory aggravators or other
requirements for the imposition of the death penalty had not been met.” Beaty v.
Schriro, 554 F.3d 780, 784 (9th Cir. 2009) (published order). Mitigating factors
are not considered in this context. See Sawyer v. Whitley, 505 U.S. 333, 345
(1992) (“If federal habeas review of capital sentences is to be at all rational,
petitioner must show something more in order for a court to reach the merits of his
claims on a successive habeas petition than he would have had to show to obtain
relief on his first habeas petition.”).
Under Arizona law at the time of Jones’s sentencing, the sentencing judge
was required to impose a sentence of death if the judge found one or more of ten
39
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 40 of 43
statutory aggravating circumstances to have been established beyond a reasonable
doubt and that “there are no mitigating circumstances sufficiently substantial to
call for leniency.” Ariz. Rev. Stat. § 13-703 (1993). The trial court, Judge
Leonardo, found the existence of five statutory aggravating factors beyond a
reasonable doubt: (1) Jones had been convicted of another offense for which, under
Arizona law, a sentence of life imprisonment or death could be imposed; (2) Jones
was previously convicted of a serious offense; (3) Jones committed the offense in
expectation of the receipt of pecuniary value; (4) Jones committed the offense
while on authorized release from the state department of corrections; and (5) Jones
was convicted of one or more other homicides committed during the commission
of the offense. See id.; Jones, 4 P.3d at 364-65.
At the very least, Jones cannot overcome the last of these statutory
aggravating factors—that he committed multiple murders during the commission
of the two robberies. As discussed above, Jones has not shown by clear and
convincing evidence that he is actually innocent of any of the murders for which he
was convicted. It follows that he cannot show that imposition of the death penalty
is legally unwarranted because any one of the aggravating factors was individually
enough to support his death sentence. See Pizzuto, 673 F.3d at 1010.
40
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 41 of 43
We conclude that Jones has not presented a prima facie showing that his
application satisfies the requirements of 28 U.S.C. § 2244(b). “[T]he second or
successive bar marks the end point of litigation even where compelling new
evidence of a constitutional violation is discovered . . . . The only prisoner who
will not reach that point is the one who obtains new evidence that could clearly and
convincingly prove his innocence or who has the benefit of a new, retroactive rule
of constitutional law.” Buenrostro, 638 F.3d at 726 (citation omitted). Jones is not
that prisoner.
V
Death penalty cases are exceedingly difficult, testing the skills of advocates
and the judgment of judges to a degree not found in more ordinary cases, because
of the ultimate penalty that the criminal defendant-appellant is at risk of paying.
Cf. Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“[T]he penalty of death is
different in kind from any other punishment imposed under our system of criminal
justice.”). In these cases, we are fortunate to have the skilled advocacy of both
defense counsel and counsel for the State, arguing for their respective sides of the
appeal. We are also faced with a complex legal system of sometimes-conflicting
precedent and with the heightened emotions that inevitably arise under these cases.
Still, even the pressures of death penalty litigation do not permit us to depart from
41
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 42 of 43
established jurisprudence, and that is what we would do here if we allowed Jones
to assert new claims under the guise of a Rule 60(b) motion when such claims
should not be permitted unless they satisfy the rigorous standard of 28 U.S.C.
§ 2244. Applying that standard here, we conclude that Jones may not file a second
or successive habeas corpus petition in the district court.
In No. 13-16928, the district court’s dismissal of Jones’s Rule 60(b) motion
is AFFIRMED. In the alternative, Jones’s motion to seek relief from judgment
under Rule 60(b) is DENIED. Pursuant to 28 U.S.C. § 2244(b)(3)(A), Jones’s asconstrued application in No. 13-16928 and his separate application in No. 1373647 to file a second or successive habeas corpus petition in the district court are
DENIED.
Each party shall bear its own costs.
42
Case: 13-16928
10/18/2013
ID: 8827751
DktEntry: 19
Page: 43 of 43
Counsel
Jon M. Sands, Federal Public Defender for the District of Arizona; Timothy M.
Gabrielson, Assistant Federal Public Defender, for Petitioner-Appellant.
Thomas C. Horne, Attorney General of Arizona; Jeffrey A. Zick, Chief Counsel;
Lacey Stover Gard, Assistant Attorney General; Jeffrey L. Sparks, Assistant
Attorney General, for Respondent-Appellee.
43
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?