Shelton v. Marshall et al

Filing 49

ORDER by Judge Hamilton denying 40 Motion for Reconsideration (pjhlc3, COURT STAFF) (Filed on 6/14/2012)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
OAKLAND DIVISION
8
9
JOSEPH P. SHELTON,
No. C 10-01100 PJH

Petitioner,
11
For the Northern District of California

United States District Court

10
ORDER RE RESPONDENT’S
MOTION FOR
RECONSIDERATION

vs.
12
JOHN C. MARSHALL, Warden,
13
Respondent.
14

/

15

Currently before the court is respondent’s motion for reconsideration of the court’s

16

March 15, 2012 order denying respondent’s motion to dismiss Shelton’s habeas petition.

17

For the reasons below, the court DENIES the motion.

18
19
20

BACKGROUND
A.

Factual Background
In 1981, a Mendocino County jury convicted petitioner Joseph Shelton (“Shelton”) of

21

one count of first degree murder and one count of second degree murder under California

22

Penal Code § 187, two counts of kidnapping under California Penal Code § 207, two counts

23

of robbery under California Penal Code § 211, one count of possession of a machine gun

24

under California Penal Code § 12022, and one count of possession of a silencer under

25

California Penal Code § 12520.1 The jury also found true special circumstances that fixed

26

the penalty for the first degree murder at life without the possibility of parole. The judge

27

sentenced Shelton to prison for forty years to life. The California Court of Appeal affirmed

28
1

This followed a change of venue from the Lassen County Superior Court.

1

the conviction but modified Shelton’s sentence to include the possibility of parole. The

2

California Supreme Court denied review.

3

On November 8, 1991, Shelton filed pro se his first habeas case in this court, which

4

was assigned to the Honorable Fern Smith. See Case No. C 91-3948 FMS. In that case,

5

Shelton raised two claims: (1) that statements that he made to law enforcement officers in

6

February 1981 should have been suppressed due to the delay in arraigning him; and (2)

7

the trial court erred in failing to instruct the jury on diminished capacity where kidnapping

8

was the felony on which the felony-murder instruction was based.

had procedurally defaulted the second claim. Judge Smith afforded Shelton thirty days to

11
For the Northern District of California

On November 12, 1992, Judge Smith denied the first claim, but noted that Shelton

10

United States District Court

9

demonstrate cause and prejudice for the default, and advised him that if he failed to do so,

12

the claim would be dismissed. Instead of doing so, Shelton filed a notice of appeal and a

13

request for a certificate of probable cause. On December 2, 1992, Judge Smith

14

subsequently denied the request for a certificate of probable cause, noting that an appeal

15

was not timely until his December 12, 1992 deadline for showing cause and prejudice for

16

the procedural default had expired.2 Shelton again failed to do so, and on December 16,

17

1992, Judge Smith dismissed the second claim, denied the first claim, and issued a

18

judgment in the case. On February 25, 1994, the Ninth Circuit dismissed the appeal.3

19

Subsequently, in 2002, the Ninth Circuit issued its first decision in Shelton’s

20

codefendant Benjamin Wai Silva’s appeal of the district court’s denial of his habeas

21

petition. The Ninth Circuit affirmed in part, reversed in part and remanded Silva’s case to

22

the district court for a determination as to whether the state had suppressed Brady

23

evidence favorable to him and whether the evidence was material. Silva v. Woodford, 279

24

F.3d 825, 855 (9th Cir. 2002); see Brady v. Maryland, 373 U.S. 83 (1963). On remand, the

25

district court determined that the withheld evidence was cumulative and not material, and

26
27
28

2

In a December 15, 1993 order, the Ninth Circuit agreed with Judge Smith that the
appeal was untimely.
3

The reasons for the Ninth Circuit’s dismissal are not clear from the record.
2

1

thus no Brady violation had occurred.

2

Silva appealed the district court’s decision on remand, and in 2005, the Ninth Circuit

3

reversed the district court’s denial of Silva’s habeas petition, concluding that a Brady

4

violation had occurred. The court remanded the case to the district court with instructions

5

to grant the writ as to Silva’s murder conviction, but left Silva’s other convictions for

6

kidnapping, robbery, and a firearms violation intact. Silva v. Brown, 416 F.3d 980, 991 (9th

7

Cir. 2005).

8

On June 25, 2007, Shelton filed another habeas petition in the Eastern District of

Silva. On September 23, 2008, the court dismissed the petition based on Shelton’s failure

11
For the Northern District of California

California. That petition raised a Brady claim in reliance on the Ninth Circuit’s decision in

10

United States District Court

9

to obtain permission from the Ninth Circuit to file his second and successive petition.

12

Meanwhile, Shelton obtained permission from the Ninth Circuit to file a second or

13

successive habeas petition. In support of that application, Shelton contended that there

14

was cause based on new evidence in the case, namely evidence that he had failed to

15

discover until the Ninth Circuit issued its 2005 decision in Silva. 416 F.3d at 980. Relying

16

on Silva, Shelton asserted that he had learned that the prosecution in his case made a deal

17

with defense witness, Norman Thomas, a co-participant in the crimes, which required that

18

Thomas, who had several years prior to Silva’s and Shelton’s trial (and after the crimes)

19

been involved in a motorcycle accident and suffered severe brain damage, not undergo a

20

psychiatric evaluation before testifying at Silva’s and Shelton’s trial. See id. at 984. On

21

November 4, 2008, in a summary order, the Ninth Circuit granted Shelton’s request to file a

22

second or successive petition in district court.

23

B.

24

Procedural History
On December 17, 2008, Shelton filed pro se the instant federal habeas petition in

25

the United States District Court for the Eastern District of California, which transferred it to

26

this court on March 18, 2010. At the time the case was transferred to this court, a motion

27

to appoint counsel was pending. Following transfer, on October 22, 2010, the court

28

granted Shelton’s motion to appoint counsel, noting that based on the Ninth Circuit’s
3

1

decision in Silva, it appeared that Shelton’s claims may have merit, and that establishing a

2

factual basis for them may be difficult for an incarcerated layperson. The court declined to

3

set further filing deadlines until appointed counsel had entered an appearance.

4

On November 18, 2010, William L. Osterhoudt was appointed as counsel for

5

Shelton. Instead of answering the petition, on August 1, 2011, the state moved to dismiss

6

Shelton’s current petition. On September 28, 2011, Shelton opposed the motion, and the

7

state chose not to file a reply.

2012, respondent filed a “motion to alter or amend” the order under Federal Rule of Civil

10

Procedure 59(e). On April 4, 2012, the court granted respondent leave to file the motion,

11
For the Northern District of California

On March 15, 2012, the court denied respondent’s motion to dismiss. On April 3,

9

United States District Court

8

and noted that because there had been no judgment in the case, the motion was actually

12

one for reconsideration of an interlocutory order and required leave of the court pursuant to

13

Civil L.R. 7-9(a). The court set a briefing schedule, and the motion for reconsideration was

14

fully briefed on May 10, 2012.
DISCUSSION

15
16
17

A.

Prior Order
In its March 15, 2012 order, the court first denied the state’s motion to dismiss the

18

petition as a second and successive petition under 28 U.S.C. § 2244(b). In denying the

19

motion on this basis, the court noted that the Ninth Circuit has suggested that the

20

restrictions normally applicable to second and successive petitions do not necessarily apply

21

to Brady claims, such as that raised by Shelton here, and concluded that if there was an

22

exception, Shelton’s case fit the exception. See King v. Trujillo, 638 F.3d 726, 729 (9th Cir.

23

2011). Alternatively, the court declined to adjudicate the merits of Shelton’s petition in the

24

context of a motion to dismiss the petition as second and successive absent full briefing

25

and a complete record.

26

Additionally, the court denied the state’s motion to dismiss the petition as untimely.

27
28

4

1

It found, based in part on his declaration, that Shelton was unaware of the factual predicate

2

for his Brady claim until sometime after he discovered the Ninth Circuit’s July 26, 2005

3

decision in Silva, 416 F.3d at 991. The court noted that Shelton then filed subsequent

4

habeas petitions in the state courts in 2006, thus tolling AEDPA’s statute of limitations

5

during the time that the petitions were pending there until June 13, 2007. Soon after the

6

state court’s denial of habeas relief, on June 25, 2007, Shelton filed a habeas petition in the

7

Eastern District of California. Based on these facts, the court concluded that Shelton’s

8

instant petition was timely.

9

B.

Current Motion
1.

11
For the Northern District of California

United States District Court

10

In its motion for reconsideration, the state challenges only the court’s ruling

12

regarding the timeliness of Shelton’s petition. It argues that the court failed to apply the

13

proper legal standards. It contends that the court granted relief based on when Shelton

14

attested he actually became aware of the factual predicate for his claim, and that AEDPA’s

15

timeliness provisions required the court to consider when Shelton “could have . . .

16

discovered [the factual predicate] through the exercise of due diligence.” See 28 U.S.C. §

17

2244(d)(1)(D). The state additionally argues that the diligence inquiry required by the

18

statute does not concern Shelton’s diligence in filing a habeas petition after he discovered

19

the factual predicate for his claim, but instead concerns Shelton’s diligence in his discovery

20

of the factual predicate for his claim in the first instance. It contends that AEDPA’s statute

21

of limitations commenced running from the time that Shelton could have discovered the

22

factual predicate for the claim through the exercise of due diligence.

23

Whether Respondent is Entitled to Reconsideration

Shelton does not dispute the above legal standards set forth by the state. He does,

24

however, argue that the court applied the correct legal standards in its March 15, 2012

25

order, and that the state’s motion for reconsideration is improper and fails to comply with

26

Civil L.R. 7-9. He also contends that the state is improperly using the instant motion for

27
28

5

1

reconsideration as a substitute for the reply that it failed to file in conjunction with its first

2

motion to dismiss.

3

The Federal Rules of Civil Procedure do not address motions for reconsideration of

4

interlocutory orders. Under the Civil Local Rules of this court, a party may seek

5

reconsideration of “any interlocutory order” made in a case “[b]efore the entry of judgment

6

adjudicating all of the claims and the rights and liabilities of all the parties in a case.” Civil

7

L.R. 7-9(a). In seeking reconsideration, the moving party must specifically show:

8
9

11
For the Northern District of California

United States District Court

10

(1) That at the time of the motion for leave, a material difference in fact or law
exists from that which was presented to the Court before entry of the
interlocutory order for which reconsideration is sought. The party must also
show that in the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the time of the interlocutory
order; or

12
13
14
15
16

(2) The emergence of new material facts or a change of law occurring after
the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive
legal arguments which were presented to the Court before such interlocutory
order.
Civil L.R. 7-9(b).
The court agrees with Shelton that the state has to some degree utilized the motion

17

for reconsideration as a reply to Shelton’s opposition to the original motion to dismiss,

18

responding to several of Shelton’s arguments in his prior opposition and advancing new

19

arguments in response to that opposition. It would have been helpful had the state filed a

20

reply in conjunction with the prior motion. Nevertheless, the court finds that reconsideration

21

is appropriate because it failed in its March 15, 2012 order to adequately consider when

22

and whether Shelton “could have” discovered the factual predicate for his current Brady

23

claim through the exercise of due diligence.

24
25
26

2.

Merits of Motion for Reconsideration
A.

Parties' Arguments

As noted above, the factual predicate for Shelton’s Brady claim was a secret deal

27
28

6

1

struck between the prosecution and its primary witness, Thomas, which the state

2

concealed for years following Shelton’s and Silva’s separate trials. The state argues that

3

through the exercise of diligence, Shelton could have discovered the factual predicate for

4

the Brady claim from Silva’s state and federal habeas petitions. It notes that Silva filed a

5

state habeas petition raising the Brady claim with the California Supreme Court on April 14,

6

1989, and a federal habeas petition raising the claim on June 25, 1990.

7

The state argues that it is reasonable to require Shelton to monitor and attempt to

should have possessed - a strong interest in Silva’s cases since Shelton was convicted

10

based on the same witnesses’ testimony, particularly that of Thomas. The state further

11
For the Northern District of California

obtain filings in Silva’s state and federal habeas cases because Shelton possessed - or

9

United States District Court

8

notes that Shelton was aware that Silva had filed a federal habeas petition because

12

Shelton signed a declaration that was filed in Silva’s case in August 1994, and the state

13

presumes that Shelton was contacted by Silva’s counsel in conjunction with preparation of

14

the declaration.4 It argues that Shelton therefore had a reason to believe that Silva’s filings

15

were a potential source of information, and that Shelton could have requested information

16

from Silva and/or Silva’s counsel regarding the claims that Silva presented in his habeas

17

petitions.

18

Alternatively, the state argues that even if reasonable diligence did not require

19

Shelton to monitor Silva’s habeas filings, he was nevertheless required to exercise

20

diligence to discover the Ninth Circuit’s 2002 decision in Silva’s case. Silva v. Woodford,

21

279 F.3d 825, 855 (9th Cir. 2002). In support, it argues that Shelton had already filed a

22

declaration in 1994 in Silva’s federal habeas case, and thus contends he was “participating”

23
24

4

27

In that declaration, Shelton attested that Norman Thomas lied at trial regarding
statements Thomas attributed to Shelton. See Petr’s Exh. O. Shelton notes in his declaration
that Thomas testified that he told him “that [] Silva and I had both shot Kevin Thorpe. . . ,
causing his death.” Id. Shelton subsequently denies making such a statement and asserts
that if Silva’s trial counsel had called him as a witness in conjunction with pretrial motions in
Silva’s case, he would have so testified. Id.

28

7

25
26

1

in those proceedings and would have had a reason to monitor the proceedings and their

2

outcome. The state asserts that the Ninth Circuit’s 2002 opinion in Silva’s case discussed

3

the precise details of Silva’s Brady claim.

4

The state further argues that it was unreasonable for Shelton to have failed to

5

discover the factual predicate for the Brady claim until the Ninth Circuit’s decision in 2005.

6

It asserts that Silva’s case was not simply some random proceeding, but that Silva’s

7

habeas proceedings presented challenges to the very same evidence presented at

8

Shelton’s own trial.

9

In opposition, Shelton first addresses the state’s arguments regarding his due
diligence by arguing that in the event the court were inclined to dismiss the petition, an

11
For the Northern District of California

United States District Court

10

evidentiary hearing is required. He contends the issue of his diligence amounts to a

12

credibility contest, and that he has submitted facts that, if true, entitle him to pursue his

13

Brady claim.

14

Shelton frames the diligence issue as whether, in spite of the state’s continuing

15

concealment and nondisclosure of the secret deal with Thomas, he should nevertheless

16

have discovered the deal prior to learning about it following the Ninth Circuit’s 2005

17

decision in Silva’s case. Throughout his opposition, Shelton emphasizes that the state has

18

been complicit in concealing evidence of the prosecution’s secret deal for years. He notes

19

that he presumably never would have learned of the secret deal providing the factual

20

predicate for his Brady claim had he not discovered it on his own via the Ninth Circuit’s

21

2005 decision in Silva. He argues that the state should not be permitted to benefit from the

22

longstanding concealment on grounds that Shelton should have discovered the secret deal

23

sooner than he in fact did.

24

Shelton contends that he cannot be blamed for not knowing about the suppressed

25

impeachment evidence or for failing to search for it prior to the point at which he discovered

26

it in 2005. He asserts that his circumstances were different from those of his codefendant,

27
28

8

1

Silva, because unlike Silva who benefitted from continuous representation, until this court

2

appointed him federal habeas counsel in 2011, Shelton had not been represented by

3

counsel since the resolution of his direct appeal in 1984. Shelton notes that unlike Silva, he

4

was not sentenced to death for his role in the crimes, and therefore did not receive

5

assistance from appointed capital habeas counsel for the past twenty-five to thirty years.

6

Shelton also notes that even though his trial involved substantially the same

7

evidence as Silva’s, their prosecutions and appeals have proceeded separately from the

8

start. He notes that his trial was severed from Silva’s, and that he proceeded to trial first in

9

Mendocino County. Silva was subsequently tried in San Bernardino County following a
change of venue. Shelton asserts that their appeals also followed “entirely separate paths

11
For the Northern District of California

United States District Court

10

and never intersected.” Because Silva’s was a capital case, his appeal was subject to

12

special rules, and he received the assistance of appointed counsel throughout his appeal

13

and postconviction proceedings, both in state and federal court. Shelton thus argues that

14

he cannot be held to the same standards of effort, expertise, and resources as Silva in

15

terms of discovering the factual predicate for the Brady claim because he was an

16

incarcerated pro se prisoner.

17

Shelton further counters that the fact that he submitted a declaration in 1994 in

18

support of Silva’s federal habeas petition sheds no light on his knowledge of or his diligence

19

in discovering the secret deal. He notes that his declaration supported Silva’s claim for

20

ineffective assistance of counsel and did not pertain to the deal underlying the Brady claim.

21

As for the filings in Silva’s state and federal habeas cases, Shelton contends that he

22

should not be required to have endeavored to gain access to such filings, especially since

23

he was not on notice about the secret prosecution deal. He argues that by their very

24

nature, Brady claims are difficult to discover, and emphasizes that neither he nor his trial

25

counsel had any reason to suspect that the prosecution had struck a secret deal.

26

In reply, the state reiterates the arguments it made in its opening motion. It

27
28

9

1

additionally suggests that whether Shelton “could have” discovered the factual predicate for

2

the claim does not involve credibility, and asserts that an evidentiary hearing is therefore

3

unnecessary. The state also argues that there is no basis for excusing Shelton from the

4

diligence requirement simply because he raises a Brady claim.

5

Finally, the state acknowledges that the prosecution failed to but should have

6

previously disclosed the secret deal to Shelton. However, it notes that to the extent

7

Shelton intends to suggest otherwise, there is no “continuing [Brady] violation” because

8

once Shelton filed his current petition, it was obvious that he was aware of the factual

9

predicate for the claim.

11
For the Northern District of California

United States District Court

10

B.

Analysis
i.

Legal Standards

12

Section 2244(d)(1) provides in pertinent part:

13

(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of--

14
15

(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

16
17
18
19
20

(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or

21
22

(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

23
Under § 2244(d)(1)(D), AEDPA’s statute of limitations begins to run when the
24
petitioner knows or through diligence could discover the important facts, not when the
25
petitioner recognizes their legal significance. Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3
26
(9th Cir. 2001). Petitioner need only demonstrate when a reasonable investigation would
27
28

10

1

have uncovered the “newly discovered” facts. See United States v. Battles, 362 F.3d 1195,

2

1198 (9th Cir. 2004) (holding in § 2255 case that even though petitioner did not have

3

access to trial transcripts, the facts supporting claims which occurred at the time of his

4

conviction could have been discovered if he “at least consult[ed] his own memory of the

5

trial proceedings”).
ii.

6

Diligence

At the outset, the court notes that although the state has argued that Shelton could

7
8

have discovered the factual predicate for the Brady claim based on Silva's 1989 habeas

9

petition before the California Supreme Court and his 1990 habeas petition before the
United States District Court for the Central District of California, it has unfortunately failed to

11
For the Northern District of California

United States District Court

10

provide this court with copies of those petitions. This is in spite of the adequate time that it

12

has had, including an extension of time to file the reply, and the fact that the documents are

13

not otherwise available to this court.
As noted above, the state asserts that both of those petitions contained the factual

14
15

predicate for Shelton's Brady claim, and Shelton does not dispute that is the case. Nor

16

does this court have any reason to believe that the state's representations to that effect are

17

inaccurate. However, even if this court were to assume that the petitions in fact contained

18

the factual predicate to Shelton's instant Brady claim, the court finds that the exercise of

19

due diligence did not require Shelton, who was incarcerated and unrepresented at the time,

20

to monitor and/or obtain Silva's habeas petitions and related filings in those two habeas

21

cases.

22

In Quezada v. Scribner, the Ninth Circuit addressed the timeliness of a habeas

23

petitioner's Brady claim. See 611 F.3d at 1166. The Quezada petitioner sought to amend

24

his habeas petition to include a Brady claim based on the prosecution's failure to disclose

25

evidence of compensation paid to a witness. Id. The government argued that the claim

26

was time-barred under 28 U.S.C. § 2244(d)(1)(D). Id. at 1167-68. The Ninth Circuit

27
28

11

1

disagreed, and held that the Brady claim was not time-barred, noting that the petitioner had

2

attempted to acquire the information in prior Brady requests, and that those requests were

3

rebuffed by the government. Id. Given the petitioner's attempts to acquire the information

4

and the government's silence, the Ninth Circuit held that the statute of limitations did not

5

commence until the petitioner discovered that the witness had changed his testimony

6

regarding compensation. Id.

7

Quezada, however, is distinguishable from this case because the petitioner in

8

Quezada requested the Brady information at issue, which the government denied existed,

9

before the petitioner subsequently learned that the information in fact existed. Id. at 116667. Here, Shelton did not request information regarding the secret deal between the

11
For the Northern District of California

United States District Court

10

prosecution and Thomas. However, Shelton asserts that was because he wasn’t aware of

12

or even on notice that there was information regarding a secret deal to request from the

13

state.

14

Unfortunately, other than Quezada, the court has not found much guidance from the

15

Ninth Circuit regarding this specific issue in habeas cases pertaining to timeliness under §

16

2244(d)(1)(D) and Brady claims. However, as addressed in this court's March 15, 2012

17

order, the Ninth Circuit has recognized the uniqueness of Brady claims in the context of the

18

restrictions applied to second and successive habeas petitions under § 2244(b)(2)(B),

19

which compels a showing similar to that required by § 2244(d)(1)(D)’s timeliness

20

provisions.5 In United States v. Lopez, the Ninth Circuit noted that:

21
22
23
24

5

Section 2244(b)(2)(B) provides in pertinent part:
(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--

26

(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due
diligence; and

27

(ii) the facts underlying the claim, if proven and viewed in

25

28

(B)

12

1
2
3

Given the nature of Brady claims, petitioners often may not be at fault for
failing to raise the claim in their first habeas petition. It is the prosecutor who
violates Brady's disclosure obligations by not providing favorable evidence to
the defense, and that prosecutorial error may not surface until petitioner's first
habeas petition has already been resolved.

4

577 F.3d 1053, 1064 (9th Cir. 2009); see also King v. Trujillo, 638 F.3d 726, 729-30 (9th

5

Cir. 2011).6

6

Additionally, even though it involved the timeliness of an ineffective assistance of

7

counsel claim as opposed to a Brady claim, the Ninth Circuit’s decision in Hasan v. Galaza,

8

is somewhat helpful. 254 F.3d at 1153- 1154. In Hasan, the Ninth Circuit considered when

9

and whether petitioner knew or should have known of the factual predicate underlying his
ineffective assistance of counsel claim. 254 F.3d 1150 (9th Cir. 2001). The Hasan

11
For the Northern District of California

United States District Court

10

petitioner filed a federal habeas petition, claiming that his counsel had been ineffective for

12

failing to investigate, or to demand inquiry into, possible juror misconduct. Id. at 1152.

13

Because the petition was filed after AEDPA’s statute of limitations expired, the state moved

14

to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1). In response, the Hasan

15

petitioner contended that the limitations period did not begin to run until he actually learned

16

of the facts that would have been revealed by an investigation into the juror misconduct -

17

that a prosecution witness in another case, who had reportedly slipped a surreptitious note

18

to a juror in the Hasan petitioner’s case, was at the time romantically involved with a

19

prosecution witness testifying against the Hasan petitioner. Id.

20

The district court denied the petition as untimely, concluding that the petitioner's

21
22

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.

23
24
25

(Emphasis added.)
6

27

Lopez was a § 2255 case, and the court was applying § 2255(h)’s gateway in that
case. The Ninth Circuit, however, treats the § 2244 (b) gateway identically. See United States
v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000).

28

13

26

1

ineffective assistance of counsel claim, based on the apparent jury tampering issue, was

2

untimely. Id. at 1154. It reasoned that at the time petitioner moved for a new trial, he was

3

aware of certain facts indicating jury tampering, even if he didn’t become aware until much

4

later of the specific facts underlying his claim. Id.

5

The Ninth Circuit reversed and remanded for a determination of the specific date on

6

which petitioner could have discovered the romantic relationship between the juror and the

7

prosecution witness. Id. at 1154-55. The court recognized that petitioner knew at the time

8

his new trial motion was denied that there may have been jury tampering his counsel had

9

not fully investigated. Id. But, the court nevertheless reasoned that the petitioner did not
know at that time the factual basis for establishing the second prong of his Strickland claim

11
For the Northern District of California

United States District Court

10

— prejudice based on the theory that, had counsel investigated, he would have discovered

12

the romantic relationship and could have contested the prosecution's representations and

13

possibly obtained a new trial. Id. Until the petitioner discovered the fact of the romantic

14

relationship between the apparent jury tamperer and a prosecution witness, the court held,

15

the petitioner did not have a “good faith basis” for arguing prejudice. Id.

16

Unlike the Hasan petitioner, Shelton was not even aware that generally, he may

17

have possessed a Brady claim, let alone that he possessed a Brady claim based on the

18

specific secret deal. Until there was reason for Shelton to suspect that he possessed a

19

Brady claim, he did not have a reason to investigate such a claim, let alone raise it in prior

20

habeas proceedings.

21

Given the very nature of the concealed evidence at issue here, the court finds that

22

there was nothing to put Shelton on notice that he should be monitoring Silva’s cases for

23

the purpose of investigating the possibility of such a Brady claim. The fact that Shelton

24

filed a declaration in 1994 in support of Silva's federal habeas petition on an unrelated

25

ineffective assistance of counsel claim did not put him on notice of the Brady claim raised

26

by Silva or of the underlying secret deal. The state's argument - that Shelton should have

27
28

14

1

been following Silva's habeas cases - presupposes that Shelton had some form of notice

2

that he possessed a potential Brady claim and that Shelton was aware that Silva was

3

himself pursuing such a claim. Absent some sort of notice or awareness of the possibility

4

of such a claim on Shelton's part, the court cannot conclude that Shelton's failure to monitor

5

Silva's state and federal habeas proceedings constituted a lack of due diligence.

6

By contrast, had the state notified Shelton of the existence of the secret deal after

investigation into his claim, such a failure would likely constitute a lack of due diligence

9

such that Shelton's Brady claim would now be time-barred. The state concedes that this,

10

however, was not the case. The state chose not to inform or notify Shelton of the secret

11
For the Northern District of California

Silva's counsel learned of it in 1986, and had Shelton subsequently failed to pursue further

8

United States District Court

7

deal once it came to light more than twenty years ago, and Shelton, who was incarcerated

12

and unrepresented by counsel, understandably did not undertake to investigate a claim of

13

which he lacked notice. Given his lack of notice of a potential Brady claim, the court cannot

14

conclude that Shelton failed to exercise due diligence when he failed to undertake efforts to

15

discover the factual predicate for the claim via filings in Silva’s cases. See Willis v. Jones,

16

2009 WL 1391429 (6th Cir. 2009) (holding that habeas petitioner had shown due diligence

17

for AEDPA's timeliness purposes where state failed to disclose Brady evidence and the

18

petitioner "had no reason to know that the state had not disclosed Brady evidence").

19

The Ninth Circuit's published 2002 decision in Silva's case presents a closer call for

20

the court. See 279 F.3d at 825. In that decision, in which the Ninth Circuit remanded

21

Silva’s case to the district court for a determination as to whether the state had suppressed

22

Brady evidence favorable to him and whether the evidence was material, the court

23

referenced the secret deal which forms the basis for Shelton's Brady claim. The court

24

noted that:

25
26

Silva argues that the district court abused its discretion in denying an
evidentiary hearing on his claim that the prosecution improperly failed to
disclose an important component of a deal they struck with Thomas, to the
effect that he would not be psychiatrically examined until after he testified in

27
28

15

1
2
3
4
5

Silva's trial. In support of this claim, Silva offers a declaration from Thomas's
attorney stating that he believed his brain-damaged client was either
incompetent to stand trial or insane, and that he had immediate plans to have
Thomas psychiatrically examined before striking the deal with the
prosecution. This aspect of the alleged agreement was never divulged to
Buckwalter or the trial judge, nor was it revealed by Thomas in his testimony
before the jury.
Id. at 853.

6

The question for this court is therefore whether the exercise of reasonable diligence

7

required Shelton to discover the factual predicate for his Brady claim via the Ninth Circuit's

8

2002 decision in his codefendant's federal habeas case.

9

Section 2244(d)(1)(D)'s due diligence requirement is an objective standard that
considers the petitioner's specific situation. See Moore v. Knight, 368 F.3d 936, 940 (7th

11
For the Northern District of California

United States District Court

10

Cir. 2004) (noting that “a due diligence inquiry should take into account that prisoners are

12

limited by their physical confinement”); accord Wilson v. Beard, 426 F.3d 653, 661 (3rd Cir.

13

2005) (holding that the defendant had not failed to act with due diligence to learn of the

14

factual predicate for his claim when the defendant did not personally learn of the

15

prosecutor's allegedly unlawful actions until his attorney notified him in prison, and that the

16

fact that the news media broadcast a report on the prosecutor's unlawful tactics several

17

days earlier was irrelevant); see also Wood v. Spencer, 487 F.3d 1, 5 (1st Cir. 2007)

18

(noting that “test of due diligence under section 2244(d)(1)(D) is objective, not subjective”);

19

Carter v. Scribner, 2009 WL 4163542 (E.D.Cal. 2009) (applying same standards).

20

The resolution of the question of whether a duly diligent petitioner would have

21

discovered the information “depends, among other things, . . . on the conditions of [the

22

petitioner's] confinement.” Wims v. United States, 225 F.3d 186, 190 n. 4 (2d Cir. 2000)

23

(observing that “[t]he mere fact that . . . it was possible for [the petitioner] to ascertain the

24

[factual predicate of his claim]” earlier than he did “is not dispositive” because AEDPA

25

“does not require the maximum feasible diligence, only ‘due,’ or reasonable, diligence”);

26

Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (the evaluation of due

27
28

16

1

diligence “may not ignore[ ] the reality of the prison system”).
Here, again, there is no dispute that Shelton was in prison and unrepresented at the

2
3

time the Ninth Circuit issued its 2002 decision in Silva. As of 2002, the state still had not

4

notified Shelton of the secret deal. Given Shelton’s lack of notice or awareness of a

5

potential Brady claim, for the same reasons discussed above regarding the filings in Silva’s

6

state and federal habeas cases, Shelton was not on notice that he should monitor the Ninth

7

Circuit’s decisions in Silva’s case. Accordingly, Shelton’s failure to discover the Ninth

8

Circuit’s 2002 decision did not constitute a failure to act with due diligence under §

9

2244(d)(1)(D).7

11
For the Northern District of California

United States District Court

10

For the reasons set forth above, the court finds that Shelton's current petition is
timely, and DENIES the state's motion for reconsideration.

12

CONCLUSION

13

Respondent’s motion for reconsideration of the court's March 15, 2012 order

14

denying its motion to dismiss the petition is DENIED. Respondent shall file with the court

15

and serve on petitioner, within 60 days of the date of this order, an answer conforming in all

16

respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ

17

of habeas corpus should not be issued. Respondent shall file with the answer and serve

18

on petitioner a copy of all portions of the administrative record that are relevant to a

19

determination of the issues presented by the petition.

20

////

21

////

22
7

27

The court recognizes that the state relies in part on the Tenth Circuit’s decision in
Easterwood, 213 F.3d at 1323, for the proposition that Shelton should have discovered the
Ninth Circuit’s 2002 Silva decision in 2002. See Motion at 9. However, Easterwood actually
stands for the proposition that a case is discoverable by due diligence on the date the opinion
became accessible in the prison law library, not the date the opinion was issued. Id.
Moreover, the court does not find Easterwood particularly helpful or on point since it did not
involve a Brady claim such as that here, and instead involved a claim regarding the petitioner’s
competence - one of which, unlike Shelton, he had notice prior to his discovery of the court’s
decision at issue in the Easterwood case. See id.

28

17

23
24
25
26

1

If the petitioner wishes to respond to the answer, he shall do so by filing a

2

traverse with the court and serving it on respondent within 30 days of his receipt of the

3

answer.

4

IT IS SO ORDERED.

5

Dated: June 14, 2012

6

______________________________
PHYLLIS J. HAMILTON
United States District Judge

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

18