Alvaro Quezada v. Al K Scribner

Filing 97

ORDER by Magistrate Judge Marc L. Goldman: granting in part and denying in part 92 Motion to depart from the Ninth Circuit Mandate. (twdb)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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ALVARO QUEZADA,

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Petitioner,

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v.

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A. K. SCRIBNER, Warden,

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Respondent.

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Case No. CV 04-7532-RSWL (MLG)
ORDER GRANTING IN PART AND
DENYING IN PART RESPONDENT’S
MOTION TO DEPART FROM THE
NINTH CIRCUIT MANDATE

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I.

Background

20

This case is before the Court on remand from the Ninth Circuit for

21

an evidentiary hearing and additional proceedings. See Quezada v.

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Scribner, 611 F.3d 1165 (9th Cir. 2010). Petitioner Alvaro Quezada was

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convicted of first degree murder and conspiracy to commit murder, Cal.

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Penal Code §§ 182, 187, and is currently serving a sentence of life

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without the possibility of parole. The parties are familiar with the

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facts and lengthy procedural history of this case, (see Docket No. 47

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at 1-3), and only the relevant portions will be repeated here.

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//

1

The Ninth Circuit’s remand order was issued during the pendency

2

of an appeal from Senior District Judge Ronald S.W. Lew’s November 21,

3

2007, judgment denying this petition for writ of habeas corpus. (Docket

4

Nos. 47-50.) One of the grounds for relief was Petitioner’s claim that

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the prosecution withheld exculpatory evidence about benefits provided

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to

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Petitioner’s trial, in violation of Brady v. Maryland, 373 U.S. 83

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(1963). In an October 26, 2007, Report and Recommendation, I concluded

9

that Petitioner’s Brady claim was likely subject to a procedural bar

10

because the Los Angeles County Superior Court had denied Petitioner’s

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state habeas corpus petition as untimely.1 (Docket No. 47 at 37-38 &

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n.16.) However, given the uncertainty about whether California’s

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timeliness bar was an independent and adequate state basis for denying

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collateral relief, see Townsend v. Knowles, 562 F.3d 1200, 1208 (9th

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Cir. 2009), abrogated by Walker v. Martin, ---- U.S. ----, 131 S.Ct.

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1120, 1128 (2011), I addressed Petitioner’s Brady claim on the merits

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without deciding if the claim was procedurally barred. (Docket No. 47

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at 37-41.) The denial of Petitioner’s Brady claim was based on the

19

finding that Petitioner had failed to produce evidence establishing

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that the prosecution “withheld any information at all, let alone

21

favorable evidence.” (Id.) A certificate of appealability was granted

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on a different claim in the petition, but not on the Brady claim.

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(Docket No. 53.)

informant

Joseph

Aflague

in

exchange

for

his

testimony

at

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During appellate proceedings in the Ninth Circuit, Petitioner

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filed a motion to remand the petition based on newly discovered

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1

It should be noted that the petition was stayed from October 28,
2005, through May 25, 2007, so that Petitioner could return to the
state courts to develop the Brady claim. (Docket No. 26, 31.)
2

1

evidence

2

cooperation with police. Quezada, 611 F.3d at 1166. On July 16, 2010,

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the Ninth Circuit remanded the case to this Court, finding that

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Petitioner was entitled to an evidentiary hearing under Townsend v.

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Sain, 372 U.S. 293, 313 (1963), because he had presented newly

6

discovered evidence that he had been diligent in trying to obtain and

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which, if proven, would entitle him to relief:

that

money

had

in

fact

been

given

to

Aflague

for

8

Quezada presents evidence that Aflague reported that from

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1997 to 2007 he received between $9,000 and $25,000 for his

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cooperation with law enforcement. In a December 11, 2008,

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declaration,

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previously represented to the court, the relocation funds and

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compensation he received were not for his testimony in the

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Eulloqui case. He also indicated that he lied about his

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compensation while testifying in another case in 2007, because

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he was angry and frustrated with the defense attorney in that

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case. This satisfies the fourth prong of Townsend. See id.

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...

Aflague

stated

that,

contrary

to

what

was

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The evidence allegedly withheld by the state in this case

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is favorable impeachment evidence involving a key government

21

witness. The evidence indicates that the government never

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informed Quezada or his counsel of substantial compensation

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that the government paid to Aflague, the only witness that

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linked Quezada directly to the murder of Bruce Cleland.

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...

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The evidence also indicates that this witness, Joseph

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Aflague, has previously perjured himself, in this case or

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another case, regarding the compensation that he received from
3

his

1

the government.

2

Quezada, 611 F.3d at 1167.

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The

Ninth

Circuit

noted

that

Respondent

did

not

deny

the

4

allegations regarding the newly discovered evidence, “but instead

5

assert[ed] that remand is inappropriate because Quezada’s claim is

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procedurally barred. The government argues that Quezada must seek leave

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to file a successive habeas petition. There is no support for this

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contention. Townsend mandates an evidentiary hearing.” Id.

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Accordingly, the Ninth Circuit remanded the petition for an evidentiary

10

hearing to:

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[1] determine the admissibility, credibility, veracity, and

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materiality of newly discovered evidence, […and then] [2]

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determine whether the new facts render Petitioner's Brady

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claim unexhausted, […and then] [3] consider whether Petitioner

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is procedurally barred from proceeding in state court, […] [4]

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if [Petitioner] is not procedurally barred, the court should

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stay and abey federal proceedings so that Petitioner may

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exhaust his claims in state court, […] [5] if [Petitioner's]

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claim

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proceed to determine whether [Petitioner] can show cause and

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prejudice or manifest injustice to permit federal review of

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the claim.

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is

procedurally

barred,

the

district

court

should

Id.

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On remand, the Federal Public Defender was appointed to represent

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Petitioner, and on August 26, 2010, the parties’ entered into a

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stipulation for discovery in preparation for the evidentiary hearing.

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(Docket Nos. 59, 66, 68.) The Court resolved one discovery dispute, but

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discovery otherwise proceeded without incident until May 2, 2011, when
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Respondent filed a motion to stay discovery pending resolution of his

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motion in the

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States Supreme Court decisions in Cullen v. Pinholster, ---- U.S. ----,

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131 S.Ct. 1388 (Apr. 4, 2011) and Walker v. Martin, ---- U.S. ----, 131

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S.Ct. 1120 (Feb. 23, 2011). Discovery was stayed on May 24, 2011.

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(Docket Nos. 81, 86.)

Ninth Circuit to recall the mandate based on the United

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On June 16, 2011, the Ninth Circuit denied Respondent's motion to

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recall the mandate, but indicated that Respondent was "free to argue

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to the district court that [Pinholster] is intervening controlling

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authority that requires the district court to depart from the mandate

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of this court." (Docket No. 89, Ex. A.) On June 24, 2011, Respondent

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filed a motion to depart from the mandate in this Court, and on July

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22, 2011, Petitioner filed an opposition. (Docket Nos. 92, 94.)

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Argument on the motion was heard on August 2, 2011.

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II.

Standard of Review

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A decision on whether to depart from the mandate of an appellate

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court is generally evaluated under the law of the case doctrine. See

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e.g., Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th

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Cir. 1993). In the Ninth Circuit, “‘The law of the case doctrine states

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that the decision of an appellate court on a legal issue must be

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followed in all subsequent proceedings in the same case.’” In re

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Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (quoting

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Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)); see

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also Thompson v. Paul, 657 F.Supp.2d 1113, 1120 n.5 (D. Ariz. 2009)

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(explaining discretionary nature of the doctrine: “The difference

27

between the law of the case and res judicata is that ‘one directs

28

discretion, the other supersedes it and compels judgment.’”) (quoting
5

1

United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987)). An

2

exception to this rule applies when "intervening controlling authority

3

makes

4

Intervening controlling authority “includes changes in statutory as

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well as case law.” Jeffries v. Wood, 114 F.3d 1484, 1489 n.1 (9th Cir.

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1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320

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(1997). Thus, this Court must determine whether intervening Supreme

8

Court precedent, specifically Pinholster, 131 S.Ct. 1388, or Walker,

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131 S.Ct. 1120, warrants departure from the Ninth Circuit’s order.

reconsideration

appropriate."

Rainbow,

77

F.3d

at

281.

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III. Analysis
Respondent

first

contends

that

the

Court

should

not

allow

13

evidentiary development because Pinholster precludes consideration of

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new evidence not presented to the state courts in its 28 U.S.C. §

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2254(d)(1)

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(“Resp’t’s Mot.”) at 2-5.) He contends that Petitioner’s claim should

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be dismissed on the merits without further proceedings. (Id.) Second,

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Respondent argues that Walker makes it clear that Petitioner’s claim

19

is procedurally defaulted, which provides the Court with an independent

20

reason

21

development contemplated in the Ninth Circuit’s remand order. (Resp’t’s

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Mot. at 11.)

to

analysis.

dismiss

(Resp’t’s

Petitioner’s

Mot.

to

Brady

Depart

claim

From

without

The

the

Mandate

factual

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In response, Petitioner concedes that the Brady issue was not

24

addressed on the merits by the superior court. He agrees that the state

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court petition was denied because it was untimely, an independent state

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procedural ground, and that the Brady claim is therefore subject to the

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argument that it is procedurally barred. However, Petitioner contends

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this renders Pinholster inapplicable to Petitioner’s case, because
6

1

Pinholster only applies to claims adjudicated on the merits by the

2

state court, and Walker demonstrates that the state court decision was

3

not on the merits. (Pet’r’s Opp. at 8-9.) More specifically, Petitioner

4

argues that Walker requires a finding that the Los Angeles County

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Superior Court’s reliance on California’s timeliness bar in rejecting

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his Brady claim was an independent and adequate state procedural ground

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for decision, which precludes federal review of the claim in this Court

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unless

9

Petitioner further argues that the Ninth Circuit mandate makes clear

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that he has presented sufficient evidence to warrant a hearing on his

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ability to overcome the procedural bar by demonstrating cause and

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prejudice, making departure from the mandate and dismissal of the

13

petition inappropriate. (Pet’r’s Opp. at 10-12.)

he

can

demonstrate

cause

and

prejudice.

(Id.

at

6-10.)

14

The Court agrees with Petitioner that under Walker, his Brady

15

claim is procedurally barred unless he can demonstrate cause and

16

prejudice. But, if he can show cause and prejudice for the procedural

17

default, Pinholster would not be applicable to this petition because

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the Brady claim was not addressed on the merits by the state courts.

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A.

20

In Pinholster, 131 S.Ct. 1388, the Supreme Court reversed the

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Ninth Circuit’s grant of a capital habeas corpus petition based on

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ineffective assistance of counsel during the penalty phase of trial.

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In granting the petition, the Ninth Circuit considered evidence outside

24

the state court record to conclude that the state court unreasonably

25

applied Strickland v. Washington, 466 U.S. 668 (1984), in denying

26

relief. Id. at 1397. The specific questions before the Supreme Court

27

were

28

consideration of evidence introduced in an evidentiary hearing before

(1)

Cullen v. Pinholster

"whether

review

under

7

28

U.S.C.

2254(d)(1)

permits

1

the federal habeas court," and (2) "whether the [Ninth Circuit]

2

properly granted Pinholster habeas relief on his claim of penalty-phase

3

ineffective assistance of counsel." Id. at 1398. Regarding the first

4

question, the California Attorney General argued that review under §

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2254(d)(1) is limited to the evidence before the state court that

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adjudicated the claim on the merits, and the Supreme Court agreed:

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"[R]eview under § 2254(d)(1) is limited to the record that was before

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the state court that adjudicated the claim on the merits," because the

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statutory language of § 2254(d)(1) is written in the past tense, and

10

the "broader context of the statute as a whole...demonstrates Congress'

11

intent to channel prisoners' claims first to state courts." Id. at

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1398-99.

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Practically, this holding imposes a significant limitation on

14

federal district courts' ability to hold evidentiary hearings: if the

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§2254(d)(1) analysis is limited to the state court record, the reasons

16

for federal courts to develop facts not presented to the state court

17

are substantially limited. Similarly, because discovery in habeas

18

proceedings

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Pinholster's limitation on evidentiary hearings has consequences for

20

discovery in habeas cases. See, e.g., Lewis v. Ayers, 2011 WL 2260784,

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at *7 (E.D. Cal. June 7, 2011) (taking previously ordered evidentiary

22

hearing off calendar and suggesting no discovery is available until

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after a petitioner survives the § 2254(d)(1) analysis: "[H]ow could a

24

district court ever find good cause for federal habeas discovery...if

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it could not be put to use in federal court at an evidentiary hearing

26

or otherwise[?]").

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//

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is

only

justified

upon

a

showing

of

good

cause,

However, the Pinholster Court explicitly noted that its holding
8

1

only applied to habeas corpus claims that “fall within the scope of §

2

2254(d),” meaning claims adjudicated on the merits in state court

3

proceedings. Pinholster, 131 S.Ct. at 1400-01. The Pinholster Court was

4

clear that its holding did not reach claims that were not adjudicated

5

on the merits in state court. Id. For claims not adjudicated on the

6

merits in state court, such as claims subject to a procedural bar, 28

7

U.S.C. § 2254(e)(2) continues to govern district court discretion to

8

consider new evidence in habeas corpus cases. Id.

9

question previously deferred by this court, whether or not Petitioner’s

10

Brady claim is subject to a procedural bar, must be answered in

11

determining

12

departure from the Ninth Circuit’s remand order.

whether

13

B.

14

Although

Pinholster

controls

this

Accordingly, the

case

and

justifies

Walker v. Martin
California

does

not

specify

exact

time

limits

on

15

collateral review, California courts have developed a discretionary

16

timeliness doctrine that requires prisoners to seek collateral review

17

“as promptly as circumstances allow” and “without substantial delay,”

18

subject to four exceptions. See In re Clark, 5 Cal.4th 750, 765 n.1,

19

797-98 (1995); In re Robbins, 18 Cal.4th 770, 780, 811-12 (1998). In

20

Walker, 131 S.Ct. 1120, the United States Supreme Court concluded that

21

California’s timeliness requirement constitutes an independent and

22

adequate state procedural basis for decision that bars federal review

23

absent a showing of cause and prejudice or a fundamental miscarriage

24

of justice. Id. at 1125, 1128-30 (citing Coleman v. Thompson, 501 U.S.

25

722, 731 (1991) and Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)).

26

The Walker Court reasoned that although the California timeliness

27

requirement

28

regularly followed. Id.

is

discretionary,

it

9

is

both

firmly

established

and

1

C.

2

Without

Analysis
question,

Pinholster

and

Walker

have

significant

3

consequences for habeas corpus petitioners in federal court. However,

4

Pinholster and Walker generally apply to distinctly different types of

5

cases, and most federal habeas corpus petitioners will not be impacted

6

by

7

consideration of evidence outside the state court record only applies

8

to petitions adjudicated on the merits by the state court, and Walker

9

only

both

decisions.

applies

to

This

is

California

because

prisoners

Pinholster’s

whose

state

restriction

habeas

on

corpus

10

petitions were rejected by California courts based on the state law

11

procedural ground of untimeliness. In other words, unless a California

12

court rejects a petitioner’s claims by making alternative findings on

13

the merits and on procedural grounds, Pinholster and Walker will not

14

apply simultaneously to the same federal petition. Determining whether

15

Petitioner’s Brady claim was adjudicated on the merits or rejected on

16

state procedural grounds, or both, is critical to deciding whether to

17

depart from the Ninth Circuit mandate in this case.

18

Although I previously determined that Petitioner’s Brady claim was

19

“likely” subject to a procedural bar, (Docket No. 47 at 38 n.16), I

20

declined to conclusively decide the issue because, at that time, it was

21

unclear whether California’s timeliness rule was an adequate state law

22

basis for imposition of a procedural bar. See Townsend, 562 F.3d at

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1208. Walker resolved the uncertainty, and it is now necessary to

24

determine

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Petitioner’s Brady claim.

the

exact

basis

for

the

state

court’s

rejection

of

26

The California Supreme Court and California Court of Appeal

27

summarily rejected Petitioner’s Brady claim, and this Court is required

28

to look to the Los Angeles County Superior Court’s reasoned decision
10

1

rejecting Petitioner’s Brady claim as the basis for the California

2

Supreme Court decision. See Mendez v. Knowles, 556 F.3d 757, 767 (9th

3

Cir. 2009)(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). On

4

February 21, 2006, the Los Angeles County Superior Court, inter alia,

5

summarized Petitioner’s Brady claim involving alleged payments to

6

Aflague, described Petitioner’s evidentiary burden on habeas corpus,

7

and then moved to a timeliness determination:

8

Timeliness

9

Petitioner

contends

that

he

has

met

a

timeliness

10

exception by virtue of the recent discovery of new evidence.

11

His

12

discovery is dubious and unconvincing. If the Court assumes,

13

arguendo, that this vague contrivance is accurate, it still

14

remains for the “new” evidence to qualify for a timeliness

15

exception. “For purposes of the exception to the procedural

16

bar against successive or untimely petitions, a ‘fundamental

17

miscarriage of justice’ will have occurred in any proceeding

18

in which it can be demonstrated: (1) that the error of

19

constitutional

20

fundamentally unfair that absent the error no reasonable judge

21

or jury would have convicted the petitioner...’ (In re Clark

22

(1993) 5 Cal.4th 750, 761.) Ordinarily, evidence which merely

23

serves to impeach a witness is not sufficiently significant to

24

warrant a new trial. (People v. Long (1940) 15 Cal.2d 590,

25

607-08.)

26

demonstrate the “constitutional magnitude” necessary to be

27

granted an exception. This petition is not timely.

28

Alleged Brady Violations and False Testimony

description

As

of

the

magnitude

discussed

circumstances

led

to

a

subsequently,

11

surrounding

trial

that

Petitioner

this

was

fails

so

to

1

Petitioner cites Napue v. Illinois (1959) 360 U.S. 264,

2

to justify his allegations regarding both Brady violations and

3

Aflague’s purported false testimony. For Napue to apply, it

4

must be clear that the prosecutor at trial not only knew of an

5

arrangement for consideration between state agents and the

6

informant witness, but allowed false testimony to the contrary

7

to be brought into court.

8

Petitioner bases his complaint on an unproven undisclosed

9

agreement between the state and Aflague whereby he would avoid

10

prosecution for his ongoing or past crimes, in exchange for

11

his testimony against [Petitioner]. Petitioner proceeds on the

12

theory

13

Aflague’s denial and the prosecutor’s ‘failure’ to produce

14

evidence of such arrangement constitute errors. Petitioner

15

fails to provide credible evidence of such an arrangement and

16

fails to make a prima facie case supporting these allegations.

17

(In re Crow (1971) 4 Cal.3d 613, 624.).

that

an

arrangement

must

exist;

therefore,

both

18

(Lodgment 7 to First Am. Pet. (“FAP”) at 3-5.) The superior court went

19

on to discuss Petitioner’s allegation that the prosecutor allowed

20

Aflague to testify falsely, and discussed alleged errors relating to

21

other witnesses before concluding: “For the reasons stated above,

22

Petitioner has failed to meet his burden. The Petition for Writ of

23

Habeas Corpus is denied.” (Lodgment 7 to FAP at 9.)

24

Respondent contends that the decision represents the superior

25

court’s rejection of Petitioner’s Brady claim both on the merits,

26

requiring review under 28 U.S.C. § 2254(d), and as untimely, resulting

27

in a procedural bar that precludes federal review unless Petitioner

28

demonstrates cause and prejudice. (Resp’t’s Mot. at 1.) He contends
12

1

that this Court’s prior rejection of Petitioner’s Brady claim involved

2

a conclusive and unreviewable determination that the state court

3

decision was on the merits. (Resp’t’s Mot. at 3.) However, in the

4

Report and Recommendation, I explicitly declined to decide whether the

5

state court’s decision was based on an independent and adequate state

6

procedural rule, and instead addressed with the merits because it was

7

legally permissible and a simpler basis for decision.2 (See Docket No.

8

47 at 37-41.) Given the speculative nature of Petitioner’s Brady claim

9

at that time, I found that the claim was “clearly without merit” such

10

that it could be denied without deciding the procedural bar issue.

11

In light of the decision in Walker, I agree with Petitioner that

12

the Los Angeles County Superior Court’s denial of the habeas corpus

13

petition rested on its untimeliness under state law. The superior court

14

judge explicitly said so. Moreover, the superior court’s review of the

15

facts underlying the Brady claim does not transform the decision to one

16

on the merits. As noted, under California law, a prisoner whose claim

17

on habeas review is found to be untimely may still be entitled to

18

review on the merits if he shows that a state law exception applies by

19

demonstrating:

20

(1) that error of constitutional magnitude led to a trial that

21

was

22

reasonable judge or jury would have convicted the petitioner;

23

(2) that the petitioner is actually innocent of the crime or

24

crimes of which he or she was convicted; (3) that the death

so

fundamentally

unfair

that

absent

the

error

no

25
26
27
28

2

See Lambrix v. Singletary, 520 U.S. 518, 524 (1997) (where it is
easier to resolve a petitioner’s claims on the merits, the interests of
judicial economy counsel against deciding the often more complicated
issue of procedural default); Walters v. Maass, 45 F.3d 1355, 1360 n.6
(9th Cir. 1995).
13

1

penalty was imposed by a sentencing authority that had such a

2

grossly misleading profile of the petitioner before it that,

3

absent the trial error or omission, no reasonable judge or

4

jury would have imposed a sentence of death; or (4) that the

5

petitioner

6

statute.

was

convicted

or

sentenced

under

an

invalid

7

Robbins, 18 Cal.4th at 780-81, 811 (quoting Clark, 5 Cal.4th at 797-

8

98). Here, the superior court considered whether Petitioner’s claim

9

fell within the first listed exception, and concluded: “As discussed

10

subsequently, Petitioner fails to demonstrate the ‘constitutional

11

magnitude’ necessary to be granted an exception. This petition is not

12

timely.” (Lodgment 7 to FAP at 4) (emphasis added).

13

This

demonstrates

that

the

superior

court’s

discussion

of

14

Petitioner’s

15

Petitioner

had

16

magnitude”

exception

17

correctly argues, the California Supreme Court has made clear that when

18

a California court considers the applicability of that exception, it

19

does so only by reference to state law and does not consider the merits

20

of the petitioner’s federal claim:

Brady

claim

involved

demonstrated
to

the

a

determination

entitlement

to

timeliness

bar.

the
And,

about

whether

“constitutional
as

Petitioner

21

Although the exception is phrased in terms of error of

22

constitutional magnitude-which obviously may include federal

23

constitutional claims-in applying this exception and finding

24

it inapplicable we shall, in this case and in the future,

25

adopt the following approach as our standard practice: We need

26

not and will not decide whether the alleged error actually

27

constitutes a federal constitutional violation. Instead, we

28

shall assume, for the purpose of addressing the procedural
14

1

issue, that a federal constitutional error is stated, and we

2

shall

3

application of state law, it cannot be said that the asserted

4

error “led to a trial that was so fundamentally unfair that

5

absent the error no reasonable judge or jury would have

6

convicted the petitioner.”

find

the

exception

inapposite

if,

based

upon

our

7

Robbins, 18 Cal.4th at 811-12. The California courts do not consider

8

the federal constitutional merits in this context in order to preserve

9

the independence of the state procedural bar. Id. at n.32. (“We are

10

aware that federal courts will not honor bars that rest ‘primarily’ on

11

resolution of the merits of federal claims, or that are ‘interwoven’

12

with such claims...As explained in the text above and following,

13

whenever

14

exclusively by reference to state law.”)(internal citations omitted).

15

Accordingly, the superior court’s conclusion that Petitioner’s Brady

16

claim did not fall within the first exception to California’s time-bar

17

rested solely on state law grounds and did not address the merits of

18

Petitioner’s Brady claim under federal law.

we

apply

the

first

three

Clark

exceptions,

we

do

so

19

Respondent argues that the superior court decision should be

20

viewed as containing two alternate rulings, one on procedural grounds

21

and one on the merits. At the hearing, Respondent asserted that the

22

basis for viewing the decision as containing two alternative holdings

23

is that state courts do so “all the time.” However, the specific

24

language in the state court order must be examined in deciding the

25

basis for decision. Given the superior court’s explicit language, it

26

is

27

Petitioner’s Brady claim did not fall within Clark’s first exception

28

to untimeliness. There was no alternative basis for decision in the

clear

that

the

petition

was

15

found

to

be

untimely

and

that

1

superior court’s opinion. This conclusion is supported by the state

2

court’s near exclusive reference to state law in accordance with the

3

principles announced in Robbins. Although the superior court referenced

4

Napue v. Illinois, 360 U.S. 264 (1959), when it described Petitioner’s

5

arguments, it otherwise relied exclusively on California cases. (See

6

Lodgment 7 to FAP.) For these reasons, I conclude the court rejected

7

Petitioner’s Brady claim on the basis of untimeliness only.

8

Under these circumstances, Petitioner’s claim is procedurally

9

barred unless he can demonstrate “‘cause for the default and actual

10

prejudice as a result of the alleged violation of federal law.’”

11

Vansickel v. White, 166 F.3d 953, 958 (9th Cir. 1999) (quoting Coleman,

12

501 U.S. at 750). In order to demonstrate cause for a procedural

13

default, “a petitioner must demonstrate that the default is due to an

14

external objective factor that ‘cannot fairly be attributed to him.’”

15

Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (citing Manning

16

v. Foster, 224 F.3d 1129, 1133 (2000) and Coleman, 501 U.S. at 753).

17

In

18

Petitioner must demonstrate there is a “reasonable probability” of a

19

different outcome absent the constitutional violation. Id. at 1148; see

20

also

21

contends, without citation, that Petitioner is not entitled to factual

22

development to overcome the procedural bar with evidence developed for

23

the first time in federal court. (Resp’t’s Mot. at 11 n.6.) There is

24

no support for this assertion. To the extent Respondent is asserting

25

that Pinholster precludes consideration of new facts in the cause and

order

to

demonstrate

Strickler

v.

Greene,

prejudice

527

U.S.

as

a

263,

result

290

of

the

(1999).3

default,

Respondent

26
3

27
28

The Court is cognizant that demonstrating cause and prejudice to
overcome a procedural bar of a Brady claim parallels the suppression
and materiality elements of a successful Brady claim. See Strickler,
527 U.S. at 282.
16

1

prejudice

2

prohibition on consideration of new evidence only applies to claims

3

“adjudicated on the merits.” Pinholster, 131 S.Ct. at 1400-01. Indeed,

4

at least one court since the Pinholster decision has concluded that

5

federal court evidentiary hearings may be warranted in determining

6

whether a petitioner can overcome a procedural bar. See United States

7

ex rel. Brady v. Hardy, 2011 WL 1575662, at *1-3 (N.D. Ill. Apr. 25,

8

2011) (granting in part the state’s motion for reconsideration of

9

evidentiary hearing order and ruling that the evidentiary hearing

10

previously ordered would only address whether the petitioner could

11

overcome a procedural bar by demonstrating actual innocence). I agree

12

with this analysis, and given that the Ninth Circuit already determined

13

that Petitioner has consistently been diligent, see 28 U.S.C. §

14

2254(e)(2), factual development on cause and prejudice is appropriate

15

in this case.

analysis,

Respondent

is

wrong

because

Pinholster’s

16

In sum, the Walker and Pinholster cases change the complexion of

17

this case, albeit not dramatically. Walker supplied the intervening

18

controlling

19

clarifies that the superior court’s timeliness ruling was based in an

20

independent state procedural rule. The Ninth Circuit directed this

21

Court to conduct an evidentiary hearing to determine whether there was

22

a Brady violation. But it also directed the Court to determine whether

23

the Brady claim was procedurally barred, and if so, whether there

24

existed cause and prejudice which excuses state procedural default.

25

Having determined that the procedural bar is applicable, the next step

26

is an evaluation of whether there was cause for the failure to adhere

27

to the state procedures and prejudice arising from the imposition of

28

the

bar.

authority

Pinholster

that

does

affects

not

apply
17

Petitioner’s

to

the

Brady

cause

and

claim

and

prejudice

1

evaluation.

2

new evidence on the issues of cause and prejudice even in Pinholster’s

3

wake. See Hardy, 2011 WL 1575662, at *1-3.

A petitioner may overcome a procedural bar by presenting

4

For these reasons, a limited departure from the Ninth Circuit

5

mandate is justified. The petition will not simply be denied with

6

prejudice, either under § 2254(d) review or based on a procedural bar,

7

as Respondent urges. However, to the extent the Ninth Circuit’s remand

8

order contemplated development and introduction of new evidence for the

9

purpose of resolving Petitioner’s Brady claim under § 2254(d)(1), the

10

Court will depart from the mandate. This is because no § 2254(d)(1)

11

analysis is warranted under AEDPA, given that the state court’s ruling

12

rested solely on an independent and adequate state law ground.

13

However, that does not end the inquiry, as Petitioner’s claim is

14

subject to a procedural bar unless he can demonstrate cause and

15

prejudice. Such a procedure was contemplated by the Ninth Circuit’s

16

order, and the Court will not depart from that portion of the mandate.

17

Instead, Petitioner may use the new evidence presented to the Ninth

18

Circuit

19

procedural bar.

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//

and

adduced

in

discovery

18

in

attempting

to

overcome

the

1

Whether additional discovery is necessary to litigate the cause

2

and prejudice issue will be determined at a future status conference.4

3
4

Dated: August 19, 2011

5
6
7

Marc L. Goldman
United States Magistrate

Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4

27
28

It is premature to determine whether Petitioner’s newly
discovered evidence renders his Brady claim unexhausted. Once the Court
is informed of the exact nature and scope of the newly discovered
evidence, it may be necessary to litigate the exhaustion issue.
19