Jacobs v. Ryan et al

Filing 67

ORDER: IT IS ORDERED, Petitioner's 57 Motion for Leave to Amend Petition for a Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED GRANTING a certificate of appealability with respect to the procedural grounds for the denial of the Motion t o Amend as an unauthorized second or successive petition. Petitioner's 58 Motion for Authorization for Counsel to Appear in Ancillary State-Court Proceedings is GRANTED. Assistant Federal Public Defender Molly A Karlin is authorized to represent Petitioner in connection with those proceedings under 18 USC § 3006A(c). Respondents' 65 Motion to Strike Declaration of D.J. is DENIED as moot. Signed by Judge Jennifer G Zipps on 11/22/22. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny Jacobs,
Petitioner,

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v.

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David Shinn, et al.,

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No. CV-18-01628-PHX-JGZ
ORDER

Respondents.

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Pending before the Court are Petitioner Danny Jacobs’ Motion for Leave to Amend

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Petition for a Writ of Habeas Corpus (Doc. 57) and Petitioner’s Motion for Authorization

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for Counsel to Appear in Ancillary State-Court Proceedings. (Doc. 58.) The State

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Respondents timely responded. (Doc. 59.) Petitioner replied and filed a sealed declaration

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in support. (Docs. 60, 64.) Respondents have moved to strike the declaration. (Doc. 65.)

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For the following reasons, the Court will deny the Motion to Amend, grant the Motion to

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Appear, and deny the Motion to Strike as moot.

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I.

Background

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On May 29, 2018, Petitioner filed a Petition for Writ of Habeas Corpus asserting

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three grounds for relief pursuant to 28 U.S.C. § 2254. (Doc. 1.) On September 28, 2021,

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the Court dismissed Grounds Two and Three, denied Ground One, and dismissed the

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Petition, declining to issue a certificate of appealability (COA) as to all three grounds.

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(Doc. 51.) On June 10, 2022, the Ninth Circuit denied Petitioner’s request for a COA.

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(Doc. 55.)

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On September 8, 2022, Petitioner filed the instant Motion, seeking leave, pursuant

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to 28 U.S.C. § 2242 and Federal Rule of Civil Procedure 15(a)(2), to file an amended

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petition that would add a fourth ground for relief—actual innocence. Petitioner asserts that

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his conduct was not criminal at the time of its commission, and that the Arizona Court of

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Appeals’ retroactive expansion of the scope of liability for kidnapping in his direct appeal

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was unexpected and indefensible. (Doc. 57-1 at 12.) Petitioner acknowledges that Ground

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Four is procedurally defaulted because the claim has not yet been raised in the state courts.

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It is for this purpose that he requests the Court authorize the appointment of the Federal

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Public Defender’s Office to represent him in state post-conviction proceedings under

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Arizona Rule of Criminal Procedure 32.1(h). (Doc. 58 at 3.) Further, Petitioner

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acknowledges that his amended petition is jurisdictionally barred by 28 U.S.C. § 2244,

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under current Ninth Circuit precedent, but requests that the Court issue a COA so that he

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“may bring the circuit split to the attention of the higher courts.” (Doc. 57 at 1.)

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II.

Discussion
A. Motion for Leave to Amend

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a

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“stringent set of procedures” that a prisoner must follow if they wish to file a “second or

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successive” habeas corpus application challenging the constitutionality of their custody.

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Burton v. Stewart, 549 U.S. 147, 152 (2007). Under 28 U.S.C. § 2244(b)(1), a claim

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presented in a “second or successive habeas corpus application under section 2254 that was

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presented in a prior application shall be dismissed.” Section 2244(b)(2) provides two

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exceptions for claims not presented in a prior application, but section 2244(b)(3)(A)

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requires a petitioner to move the appropriate court of appeals for an order authorizing the

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district court to consider the application before a second or successive habeas petition may

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be filed. Colbert v. Hyanes, 954 F.3d 1232, 1235 (9th Cir. 2020). The authorization

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requirement is jurisdictional. Cooper v. Calderon, 274 F.3d 1270, 1274–75 (9th Cir. 2001)

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(per curiam). The “restrictions on successive petitions constitute a modified res judicata

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rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ.’” Felker v.

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Turpin, 518 U.S. 651, 644 (1996). The doctrine of abuse of the writ “refers to a complex

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and evolving body of equitable principles informed and controlled by historical usage,

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statutory developments, and judicial decisions.” McCleskey v. Zant, 499 U.S. 467, 489

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(1991).

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“‘Second or successive’ is a term of art in habeas corpus law.” Goodrum v. Busby,

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824 F.3d 1188, 1193 (9th Cir. 2016) (citing Slack v. McDaniel, 529 U.S. 473, 486 (2000)).

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In the Ninth Circuit, a habeas petition, or a motion for leave to amend a habeas petition, is

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deemed second or successive if it is filed after a prior petition has been “finally

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adjudicated.” Id. If a petition remains pending in the district court, a newly filed petition

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or motion to amend is not second or successive and the court has jurisdiction to consider

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it. Id. at 1194. However, once a district court has denied a habeas petition—even if that

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denial remains pending before the court of appeals—it is considered finally adjudicated

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and any newly filed petition is deemed to be an unauthorized second or successive petition.

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Balbuena v. Sullivan, 980 F.3d 619, 636 (9th Cir. 2020) (citing Beaty v. Schriro, 554 F.3d

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780, 782–783 (9th Cir. 2009)). If a petitioner does not move for leave to amend until after

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the district court has denied their claims, they are required to satisfy the requirements for

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successive petitions under § 2244(b) and obtain authorization from the court of appeals.

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Beaty, 554 F.3d at 782–83. If the petitioner fails to do so, the district court lacks jurisdiction

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to consider any new claim. Balbuena, 980 F.3d at 637.

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Here, Petitioner presents a new claim of actual innocence, Ground Four, that was

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not presented in his prior habeas petition. However, Petitioner filed the Motion to Amend

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on September 8, 2022, nearly a year after his first petition was dismissed and denied on

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September 28, 2021, and three months after the Ninth Circuit declined to issue a COA on

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June 10, 2022. He did not obtain authorization from the Ninth Circuit prior to requesting

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leave to amend. As such, the Motion is an unauthorized second or successive petition and

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this Court lacks jurisdiction to permit any amendment. Both Petitioner and Respondents

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agree that the Court cannot grant leave to amend. (Doc. 57 at 1; Doc. 59 at 3.) Thus, the

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Court will deny the Motion to Amend.

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B. Certificate of Appealability

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In a habeas corpus proceeding, the applicant may not appeal unless a circuit or

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district judge issues a COA under 28 U.S.C. § 2253(c). Fed. R. App. P. 22(b). Under

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§ 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing

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of the denial of a constitutional right.” The court reviews the face of the complaint,

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accepting a petitioner’s allegations as true, to determine whether the petitioner has facially

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alleged the denial of a constitutional right. Lambright v. Stewart, 220 F.3d 1022, 1025–26

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(9th Cir. 2000).

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When a district court “denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a COA should issue when the

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prisoner shows, at least, that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and that jurists of reason would

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find it debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 485 (2000).

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Here, in Ground Four of the proposed amended petition, Petitioner alleges that his

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due process rights under the Fifth and Fourteenth Amendments were violated by the

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Arizona Court of Appeals’ unforeseeable, retroactive expansion of the scope of liability

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for kidnapping. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (“If a judicial

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construction of a criminal statute is unexpected and indefensible by reference to the law

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which had been expressed prior to the conduct in issue, it must not be given retroactive

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effect.” (internal quotation marks omitted)). Petitioner argues that, at the time of the

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incident, neither the statute nor the governing case law provided fair notice that his conduct

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could constitute using his child, D.J., “as a shield or hostage.” See A.R.S. § 13-1304. As a

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result, he asserts that he is actually innocent of kidnapping because his conduct was

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non-criminal at the time he committed it.

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Without reaching the merits of Ground Four, the Court finds that Petitioner has

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facially alleged the denial of a constitutional right because he asserts that he is actually

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innocent, a “fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 315 (1995).

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Thus, Petitioner has made a substantial showing of the denial of his Fifth and Fourteenth

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Amendment due process rights.

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Next, the Court finds that reasonable jurists could debate its procedural ruling

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denying the Motion to Amend as an unauthorized second or successive petition because

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the circuit courts are divided on the issue of when a petition is finally adjudicated. Petitioner

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acknowledges that Ninth Circuit precedent, and that of four other circuits, holds that a

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habeas petition is finally adjudicated when the district court has entered judgment. (Doc.

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57 at 9 (citing Balbuena, 980 F.3d at 636; Moreland v. Robinson, 813 F.3d 315 (6th Cir.

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2016); Phillips v. United States, 668 F.3d 433 (7th Cir. 2012); William v. Norris, 461 F.3d

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999 (8th Cir. 2006); Ochoa v. Simmons, 485 F.3d 538 (10th Cir. 2007))). Yet Petitioner

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points to the Second and Third Circuits’ holding that a habeas petition is not fully

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adjudicated while its denial is pending on appeal—or indeed, until the time to petition for

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certiorari has elapsed. (Id. at 10 (citing Whab v. United States, 408 F.3d 116, 120 (2d Cir.

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2005) (“adjudication will not be final until petitioner’s opportunity to seek review in the

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Supreme Court has expired”); United States v. Santarelli, 929 F.3d 95, 106 (3d Cir. 2019)

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(AEDPA’s one full opportunity to seek collateral review does not end until “petitioner

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exhausts her appellate remedies to no avail.”))).

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Here, time to seek certiorari from the Supreme Court to review the Ninth Circuit’s

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June 10, 2022 denial of a COA expired on September 8, 2022—the same day that Petitioner

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filed the instant Motion to Amend. (Doc. 57-1 at 21.) If this Court were bound by Second

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or Third Circuit precedent, it would have jurisdiction to consider the amendment. Petitioner

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urges that “at least one Ninth Circuit judge agrees with the position of the Second and Third

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Circuits,” and Balbuena “may be overruled by either the en banc Ninth Circuit or the

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Supreme Court.” (Doc. 57 at 11.) Respondents argue that “when the Ninth Circuit decided

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Balbuena, the Court was well aware of the split of authority and explicitly rejected the

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reasoning in Whab and Santarelli.” (Doc. 59 at 3.) However, the Respondents’ argument

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misstates the “low bar” for issuance of a COA. See Carter v. Davis, 946 F.3d 489, 522 (9th

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Cir. 2019). The question is not whether an appellate court has addressed similar arguments,

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but whether reasonable jurists would find the procedural ruling debatable. The fact that

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appellate courts have considered when a habeas petition is finally adjudicated and come to

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opposite conclusions demonstrates that the issue is fairly debatable.

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Thus, the Court will issue a COA as to the procedural basis for its ruling denying
the Motion to Amend as an unauthorized second or successive petition.
C. Motion for Authorization to Appear

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Petitioner requests that the Court authorize the Federal Public Defender of the

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District of Arizona to represent him in state-court post-conviction proceedings pursuant to

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18 U.S.C. § 3006A(c). (Doc. 58 at 1.) Respondents have not opposed the motion.

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Under 18 U.S.C. § 3006A(c), “a person for whom counsel is appointed shall be

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represented at every stage of the proceedings from his initial appearance . . . through appeal,

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including ancillary matters appropriate to the proceedings.” A district court may determine

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on a case-by-case basis if it is appropriate for federal counsel to exhaust a claim in state

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post-conviction litigation in the course of her federal habeas representation. Harbison v.

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Bell, 556 U.S. 180, 190 n.7 (2009).

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Here, Petitioner acknowledges that Ground Four of the proposed amended petition

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is procedurally defaulted because the claim has not yet been raised in the state courts. (Doc.

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58 at 8.) Petitioner intends to remedy the lack of exhaustion by incepting state

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post-conviction relief proceedings under Arizona Rule of Criminal Procedure 32.1(h). (Id.)

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Rule 32.1(h) permits a claim of actual innocence to be raised in a successive or otherwise

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untimely petition for post-conviction relief. Petitioner argues that it is appropriate for his

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federal counsel to represent him in this ancillary proceeding because his kidnapping

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conviction would be vacated if the state court grants relief, rendering further federal habeas

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proceedings moot. (Doc. 58 at 2.) Additionally, Petitioner does not have access to the

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necessary case precedent at the Arizona Department of Corrections, requiring the

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appointment of counsel to assert his claim of actual innocence “properly and intelligently.”

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(Doc. 58 at 3.)

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The Court finds that it is appropriate to appoint the Federal Public Defender’s Office

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to represent Petitioner in state court post-conviction proceedings to exhaust the claim of

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actual innocence raised in Ground Four of the proposed amended petition. Thus, the Court

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will grant the Motion to Appear.

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D. Motion to Strike

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In his Reply in support of the Motion to Amend, Petitioner attached a sealed

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declaration from his child, D.J., the minor involved in the kidnapping conviction. (Doc.

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64.) Respondents moved to strike the declaration under Federal Rule of Civil Procedure

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12(f), arguing that it is immaterial and inappropriate. (Doc. 65 at 1–2.) Petitioner responded

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that the declaration is relevant and appropriate to rebut Respondents’ contention that the

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victim in this case is interested in the finality of Petitioner’s conviction—an interest that

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D.J. has rejected. (Doc. 66 at 2.)

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As stated above, this Court does not have jurisdiction to consider Petitioner’s

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Motion to Amend on the merits. Because the declaration is relevant only to the merits

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consideration of whether to grant leave to amend, the Court will deny the Motion to Strike

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as moot.

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//

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//

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//

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Petitioner’s Motion for Leave to Amend Petition for a Writ

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of Habeas Corpus (Doc. 57) is DENIED.

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IT IS FURTHER ORDERED GRANTING a certificate of appealability with

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respect to the procedural grounds for the denial of the Motion to Amend as an unauthorized

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second or successive petition.

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IT IS FURTHER ORDERED that Petitioner’s Motion for Authorization for

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Counsel to Appear in Ancillary State-Court Proceedings (Doc. 58) is GRANTED.

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Assistant Federal Public Defender Molly A. Karlin is hereby authorized to represent

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Petitioner in connection with those proceedings under 18 U.S.C. § 3006A(c).

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IT IS FURTHER ORDERED that Respondents’ Motion to Strike Declaration of
D.J. (Doc. 65) is DENIED as moot.
Dated this 22nd day of November, 2022.

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