Hutchins v. Lizarraga
Filing
42
ORDER DENYING 30 PETITIONER'S MOTION TO VACATE COURT'S FINAL ORDER AND JUDGMENT. Signed by Judge Beth Labson Freeman on 2/1/2021. (blflc1S, COURT STAFF) (Filed on 2/1/2021)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
SAN JOSE DIVISION
6
7
KENNETH HUTCHINS,
Case No. 17-cv-03921-BLF
Petitioner,
ORDER DENYING PETITIONER’S
MOTION TO VACATE COURT’S FINAL
ORDER AND JUDGMENT
8
v.
9
10
JOE A. LIZARRAGA, Warden,
[Re: ECF 30]
Respondent.
United States District Court
Northern District of California
11
12
13
Before the Court for a second time is Petitioner Kenneth Hutchins’ Motion to Vacate the
14
Court’s Final Order and Judgment, brought under Federal Rules of Civil Procedure 59(e) and
15
60(b). See Mot., ECF 30. Petitioner filed the motion on April 27, 2020, asserting that new
16
evidence of actual innocence warrants relief from the Court’s adverse habeas ruling and entry of
17
judgment on March 30, 2020. See id. Respondent filed opposition. See Opp., ECF 31. The
18
Court deemed the motion appropriate for decision without oral argument, determined that it raises
19
a new claim for habeas relief based on actual innocence, and denied it as an unauthorized second
20
or successive habeas petition. See Order Den. Mot., ECF 32.
21
Petitioner filed a timely notice of appeal as to both the judgment and the post-judgment
22
order denying his motion to vacate. See Ninth Cir. Order, ECF 35. The United States Court of
23
Appeals for the Ninth Circuit remanded the case, noting that “[s]hortly after the district court
24
entered its post-judgment order, the United States Supreme Court issued its opinion in Banister v.
25
Davis, __ U.S. __, 140 S. Ct. 1698 (2020), holding that a Rule 59(e) motion is not a second or
26
successive habeas petition.” Id. The remand is for the limited purpose of allowing this Court to
27
reconsider Petitioner’s post-judgment motion. See id.
28
Petitioner’s motion is DENIED for the reasons discussed below.
I.
1
BACKGROUND
A California state court jury convicted Petitioner of several sex offenses against his eight-
2
3
year-old great niece, Zoe,1 and possession of child pornography. See People v. Hutchins, No.
4
A141037, 2016 WL 369800, at *1 (Cal. Ct. App. Jan. 29, 2016). He was sentenced to a prison
5
term of 55 years to life, plus 8 years and 8 months. See id. After filing an unsuccessful direct
6
appeal and petition for review, Petitioner filed a counseled federal habeas petition to commence
7
the present action. See Pet., ECF 1. The petition asserts four claims relating to the admission of
8
evidence, ineffective assistance of counsel, failure to properly instruct the jury, and prosecutorial
9
misconduct. See id. at 10-21. This Court denied the petition and entered judgment against
10
Petitioner on March 30, 2020. See Order Denying Pet., ECF 28; Judgment, ECF 29.
Petitioner thereafter filed the present motion, asserting that relief from the Court’s habeas
United States District Court
Northern District of California
11
12
denial and entry of judgment is warranted under Rules 59(e) and 60(b). The motion asserts that
13
new evidence of actual innocence has been unearthed. The first piece of purportedly new
14
evidence is a transcript of a hearing conducted by the state superior court in October 2019 – five
15
months before this Court entered judgment – regarding the prosecution’s post-conviction motion
16
for additional victim restitution. See Fahn Decl. ¶ 3 & Exh. 1, ECF 30-1. Petitioner opposed the
17
motion and testified that he had not molested Zoe. See id. The superior court imposed the
18
requested additional restitution. See Fahn Decl. ¶ 4. Petitioner nonetheless contends that the
19
hearing transcript is significant because it contains his only sworn testimony that he did not molest
20
Zoe, as he did not testify at trial. See Mot. at 5, ECF 30.
The second piece of purportedly new evidence is information that Petitioner suffers from a
21
22
neurological condition. See Fahn Decl. ¶ 9. Petitioner’s counsel in the present action, Meredith
23
Fahn, obtained that information from attorney Barry Karl, who was appointed in 2019 to represent
24
Petitioner as to his appeal of the superior court’s order for additional restitution and as to state
25
habeas proceedings. See Fahn Decl. ¶¶ 7-9. On April 24, 2020, Mr. Karl told Ms. Fahn that
26
Petitioner was treated from 2007 through his arrest in 2013 for a neurological condition resulting
27
28
1
The Court refers to the victim by only her first name in order to protect her privacy and means no
disrespect by the informality.
2
1
from a head injury; Petitioner took medication; and Petitioner suffered headaches and difficulty
2
with memory. See id. ¶ 9. Petitioner contends that his neurological condition could explain why
3
he shaved off his body hair after the prosecution obtained a court order to take a hair sample for
4
comparison with a human hair found on Zoe’s genital area. See Mot. at 6, ECF 30. He also
5
contends that his neurological condition could explain why he did not testify at trial and why he
6
had tapes containing child pornography in his home. See id.
7
The third piece of purportedly new evidence is a transcript of the police station interview
8
of Petitioner on January 16, 2013, the date of his arrest. See Fahn Decl. ¶ 12. Mr. Karl obtained
9
the transcript from the file of Petitioner’s trial counsel, and emailed it to Ms. Fahn, who had not
previously seen the transcript. See id. According to Petitioner, the transcript “relays what appears
11
United States District Court
Northern District of California
10
to be genuine cluelessness as to why Mr. Hutchins was roused from his bed and brought to the
12
station, as well as his utter willingness to cooperate and apparent lack of anything to hide.” Mot.
13
at 13, ECF 30.
14
Based on this evidence, Petitioner asks the Court to vacate its order denying his habeas
15
petition, vacate the judgment, and impose a stay of proceedings pending conclusion of state habeas
16
proceedings. The Court initially denied the motion as a second or successive habeas petition, as it
17
raises an entirely new claim of actual innocence. See Order Den. Mot., ECF 32. With respect to
18
Petitioner’s request for relief under Rule 59(e), the Court relied on Ninth Circuit authority holding
19
that “a Rule 59(e) motion that raises entirely new claims should be construed as a second or
20
successive habeas petition subject to AEDPA’s restrictions.” Rishor v. Ferguson, 822 F.3d 482,
21
492 (9th Cir. 2016). With respect to Petitioner’s request for relief under Rule 60(b), the Court
22
relied on Supreme Court authority that using Rule 60(b) to present “new evidence” “would
23
impermissibly circumvent the requirement that a successive habeas petition be precertified by the
24
court of appeals as falling within the exception to the successive-petition bar.” Gonzalez v.
25
Crosby, 545 U.S. 524, 532 (2005).
26
As noted above, after this Court denied Petitioner’s motion, the Supreme Court held that a
27
Rule 59(e) motion may not be construed as a second or successive habeas petition. See Banister,
28
140 S. Ct. at 1702. The Ninth Circuit accordingly remanded Petitioner’s motion to this Court for
3
1
reconsideration. Nothing in Bannister or the Ninth Circuit’s remand suggests that this Court’s
2
denial of Petitioner’s request for relief under Rule 60(b) was improper. To the contrary, Bannister
3
distinguishes Rule 59(e) motions from Rule 60(b) motions and explains why “[a] Rule 59(e)
4
motion, unlike a Rule 60(b) motion, does not count as a second or successive habeas application.”
5
Bannister, 140 S. Ct. at 1711. This Court therefore reconsiders Petitioner’s motion only to the
6
extent it seeks relief under Rule 59(e).
7
II.
LEGAL STANDARD
8
“Rule 59(e) allows a litigant to file a ‘motion to alter or amend a judgment.’” Bannister,
9
140 S. Ct. at 1703. The purpose of the rule is to allow the district court “the chance to rectify its
own mistakes in the period immediately following its decision.” Id. (quotation marks and citation
11
United States District Court
Northern District of California
10
omitted). “In keeping with that corrective function,” federal courts generally use Rule 59(e) only
12
to address “matters properly encompassed in a decision on the merits,” and “will not address new
13
arguments or evidence that the moving party could have raised before the decision issued.” Id.
14
(quotation marks and citation omitted). “The motion is therefore tightly tied to the underlying
15
judgment.” Id.
16
“Since specific grounds for a motion to amend or alter are not listed in the rule, the district
17
court enjoys considerable discretion in granting or denying the motion.” Allstate Ins. Co. v.
18
Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (quotation marks and citation omitted). “In general,
19
there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is
20
necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such
21
motion is necessary to present newly discovered or previously unavailable evidence; (3) if such
22
motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an
23
intervening change in controlling law.” Id.
24
A prisoner may use Rule 59(e) to seek relief from denial of a habeas petition, but “only to
25
request reconsideration of matters properly encompassed in the challenged judgment.” Bannister,
26
140 S. Ct. at 1708 (quotation marks and citation omitted). “And ‘reconsideration’ means just that:
27
Courts will not entertain arguments that could have been but were not raised before the just-issued
28
decision.” Id. “A Rule 59(e) motion is therefore backward-looking; and because that is so, it
4
1
maintains a prisoner’s incentives to consolidate all of his claims in his initial application.” Id.
2
“The motion’s disposition then merges into the final judgment,” in that manner helping to
3
“produce a single final judgment for appeal.” Id.
III.
4
DISCUSSION
5
Petitioner asserts that relief is necessary to allow consideration of newly discovered
6
evidence, discussed above, that was previously unavailable. He also asserts that relief is necessary
7
to prevent manifest injustice. He asks the Court to vacate its order denying his habeas petition,
8
vacate the judgment, and enter a King/Kelly2 stay pending completion of state habeas proceedings.
9
In opposition, the Government argues that the proffered evidence is not newly discovered or
previously unavailable. The Government also argues that Petitioner has not demonstrated that
11
United States District Court
Northern District of California
10
relief is required to prevent manifest injustice.
The Court agrees with the Government that the proffered evidence does not qualify as
12
13
newly discovered or previously unavailable. With respect to the transcripts of the October 2019
14
restitution hearing and the January 2013 police interview, both could have been obtained by
15
Petitioner’s counsel prior to entry of judgment in this case. Moreover, the information contained
16
in those transcripts – that Petitioner denied molesting Zoe – is not new. Petitioner pled not guilty
17
and pursued a trial strategy of actual innocence. That he took the same position during his police
18
interview and a post-conviction restitution hearing proves nothing.
Moreover, while Petitioner’s neurological condition apparently came as news to his current
19
20
habeas counsel, Petitioner himself was aware of his condition, for which he obtained medical
21
treatment from 2007-2013. See Fahn Decl. ¶ 9, ECF 30-1. The transcript of Petitioner’s police
22
interview on January 16, 2013, the date of his arrest, reflects that Petitioner told the police about
23
his head injury, medication, headaches, and memory issues. See Fahn Decl. Exh. 4, Tr. 23:7-
24
24:16, ECF 30-1. Petitioner’s trial counsel’s file included an investigator’s memorandum
25
documenting an interview with Petitioner’s mother, Barbara Hutchins, in which she disclosed
26
Petitioner’s head injury, medications, headaches, and memory issues. See Fahn Decl. ¶ 10 & Exh.
27
28
2
See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).
5
1
3, Memo., ECF 30-1. Evidence of Petitioner’s neurological condition therefore could have been
2
presented to this Court prior to entry of judgment.
3
Even if the evidence of Petitioner’s neurological condition were newly discovered or
4
previously unavailable, it would not warrant relief from judgment. As the Government points out,
5
Petitioner has never denied knowing or remembering what happened between him and his great
6
niece. Petitioner suggests that his neurological condition could explain why he shaved off his
7
body hair, did not testify at trial, and had tapes containing child pornography in his home.
8
However, it is entirely unclear how a condition causing headaches and memory issues could have
9
caused the conduct at issue.
10
Finally, Petitioner has failed to show that Rule 59(e) relief is necessary to prevent manifest
United States District Court
Northern District of California
11
injustice. Petitioner argues that the proffered evidence, and other evidence that may result from
12
investigation by his state habeas counsel, may support a new claim of actual innocence. He asks
13
the Court to vacate its order denying habeas relief, vacate the judgment, and grant a King/Kelly
14
stay. In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), and Kelly v. Small, 315 F.3d 1063 (9th Cir.
15
2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), the Ninth
16
Circuit articulated a three-step procedure for addressing mixed habeas petitions. That procedure
17
permits “(1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its
18
discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the
19
petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) once the
20
claims have been exhausted in state court, the petitioner to return to federal court and amends his
21
federal petition to include the newly-exhausted claims.” King, 564 F.3d at 1139. The King/Kelly
22
procedure simply does not fit the posture of this case, in which the habeas petition has been denied
23
and judgment has been entered. Petitioner has not cited any case in which a district court granted
24
a Rule 59(e) motion for the purpose of imposing an immediate King/Kelly stay to allow
25
development of a potential new habeas claim. Assuming a King/Kelly stay could be used for that
26
purpose, Petitioner has not demonstrated a colorable claim of actual innocence on this record, nor
27
has he shown that such a claim is likely to result from the state habeas proceedings. Thus, he has
28
not shown that relief is necessary to prevent manifest injustice.
6
In conclusion, after considering Petitioner’s motion on the merits, the Court finds that
1
2
Petitioner has failed to demonstrate that relief is warranted under Rule 59(e). Specifically, the
3
Court finds that Petitioner has failed to show that relief is necessary either to allow consideration
4
of newly discovered evidence that was previously unavailable, or to prevent manifest injustice.
5
6
IV.
ORDER
Petitioner’s Motion to Vacate the Court’s Final Order and Judgment is DENIED.
7
8
9
Dated: February 1, 2021
______________________________________
BETH LABSON FREEMAN
United States District Judge
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?