United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS
Honorable Ronald E. Bush, United States Magistrate Judge.
Pending
before the Court is a Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Edward Stevens
(“Petitioner” or “Stevens”).
Petitioner challenges his Ada County conviction for
first-degree murder. (Dkt. 1.) The Petition is fully briefed.
(Dkt. 15, 23, 28.) The Court takes judicial notice of the
records from Petitioner's state court proceedings, which
have been lodged by the State. (Dkt. 10.) See Fed.
R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550,
551 n.1 (9th Cir. 2006).
All
named parties have consented to the jurisdiction of a U.S.
Magistrate Judge to conduct all proceedings in this case,
pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73. (Dkt. 9.) Having carefully reviewed the record
in this matter, including the state court record, the Court
concludes that oral argument is unnecessary. See D.
Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
following Order granting Claim 1 of the Petition and
requiring the State to release or to begin new trial
proceedings against Petitioner within 120 days.
SUMMARY
OF DECISION
Edward
Stevens, the Petitioner in this case, was convicted in Idaho
state court of the first-degree murder of an eleven-month-old
child. Prosecutors based their case against him on the theory
that Stevens violently shook the child and hit the
child's head against a bathtub, causing a fatal skull
fracture. Stevens has always maintained that the child's
injuries resulted from an accidental fall down the stairs.
The first-degree murder charge was based on the
prosecution's theory that Stevens violently shook the
child; without such shaking, the prosecution could not have
obtained a conviction for first-degree murder.
At
trial, the strongest evidence against Stevens was expert
testimony that a certain type of tissue damage found in the
child's eyes after death was highly specific to
shaken-baby syndrome. However, after Stevens had been
convicted, two types of relevant evidence surfaced. First, it
was discovered that the child's eyes might have been
removed from the body for examination not at the autopsy, but
after the body was released from State custody and embalmed.
This fact would have established a break in the evidence
chain of custody of the eyes. Second, Stevens obtained
evidence that the tissue damage in the child's eyes might
have been caused by the embalming process, instead of by
shaking. These pieces of evidence, if true, would have called
into question the prosecution's expert witness testimony,
which was that the condition of the child's eyes was
specific evidence showing that the child had been violently
shaken.
Upon
finding the new evidence, Stevens's attorneys
investigated whether Stevens could assert a claim under the
decision in the case of Brady v. Maryland, 373 U.S.
83 (1963). In Brady, the United States Supreme Court
ruled that due process of law requires a prosecutor to
discover and disclose to the accused all of the evidence
known to the prosecutor's investigative team that is
favorable to the accused regarding guilt or punishment. In
this case, the State did not disclose to Stevens available
evidence suggesting that its expert had examined and based
his testimony on eyes that had been embalmed. In
response, prosecutors argued both that they did not know of
the evidence before trial and that that they did not know the
potential significance of the evidence.[1]
Stevens
filed a motion for a new trial in the state district court,
based on this new evidence. When that was unsuccessful, he
pursued a state court appeal. He then filed a state petition
for post-conviction relief, in which he argued that
prosecutors had failed to disclose evidence required by
Brady and that Stevens had received ineffective
assistance of counsel in the trial and appellate proceedings.
The last step of Steven's state court proceedings was an
appeal to the Idaho Court of Appeals. In that appeal, the
Idaho Court of Appeals considered Stevens's
Brady claim. In doing so, the court assumed that the
child's eyes were removed after embalming; however, the
court rejected the claim nonetheless. The Idaho Supreme Court
declined to review the decision.
When a
person has sought and been denied relief from the state's
highest court on alleged federal constitutional violations,
as Stevens has, he may raise those challenges in federal
court in a Petition for Writ of Habeas Corpus. A writ of
habeas corpus is an order directing the custodian of a
prisoner to produce the prisoner at a time and place stated
in the order to prove that the prisoner is lawfully in
custody. It is sometimes known as the “Great Writ,
” and has existed in various forms since the earliest
days of English common law. The writ was a part of early
American colonial jurisprudence and later incorporated in the
United States Constitution, which provides that “the
privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the
public safety may require it.” U.S. Const. Art. I,
§ 9, cl. 2.
In
modern times, federal statutes and United States Supreme
Court rulings govern how and when a federal court can issue a
writ of habeas corpus. The authority of a federal court to
issue a writ of habeas corpus regarding a state criminal
conviction has been narrowly limited, so as to give deference
to state court decisions. However, issuance of a writ of
habeas corpus remains a proper exercise of a federal
court's jurisdiction when the law, facts, and
circumstances call for its application.
As
described in this decision, this Court concludes that the
finding made by the initial post-conviction state district
court that the child's eyes were removed at the autopsy,
before release and embalming, was unreasonable in light of
the evidence presented to that court. See 28 U.S.C.
§ 2244(d)(2). The Court further concludes that, even
though the Idaho Court of Appeals assumed for the purposes of
its decision that the eyes were removed after embalming, that
court unreasonably ruled that the prosecution did not violate
Brady by failing to discover and disclose the
evidence of post-embalming removal. See 28 U.S.C.
§ 2254(d)(1). In particular, the Court rules that the
evidence of post-embalming removal of the child's eyes
could have been used to impeach the expert testimony
regarding the cause of the injuries to the child's eyes.
This important impeachment evidence would have lent support
to Stevens's contention that the child died from an
accidental fall rather than from shaking and abuse. This
evidence may have been enough to raise a reasonable doubt in
the mind of a juror as to Stevens's guilt.
Because
the Court finds that the state post-conviction court's
factual finding was unreasonable, the Court is not bound by
statutory standards that would otherwise require the Court to
defer to the state court, as set forth in the habeas statute.
See 28 U.S.C. §§ 2254(d), (e)(1). Instead,
applicable law allows this Court to review Stevens's
Brady claim “de novo, ” meaning anew.
For the
reasons that follow, on de novo review, the Court rules that
Stevens is entitled to relief on his Brady claim.
Therefore, the Court issues a conditional writ of habeas
corpus. Issuance of a conditional writ of habeas corpus does
not require the responding prison warden to immediately
release Stevens from custody. This Order allows the State 120
days to decide whether to release Stevens or retry him.
Because
the Court has ruled that Stevens is entitled to relief and to
issuance of a conditional writ of habeas corpus based upon
his Brady claim, it is not necessary for the Court
to rule upon the other claims made in his Petition.
Table
of Contents
Background
..........................................................................................................................
8
Habeas
Corpus Standard of Law
........................................................................................
19
Discussion
..........................................................................................................................
26
1.
Clearly-Established Law
........................................................................................
26
2. In
Denying Claim 1, the Idaho Court of Appeals Unreasonably
Applied Brady v. Maryland, Kyles v.
Whitley, and Bagley v. United States
...................................... 28
A.
Assuming Post-Release and Post-Embalming Removal of the Eyes,
the State Court's Conclusion that the Evidence Was Not in
the Government's Possession or Control Was Unreasonable
................................................... 29
B.
Assuming Post-Release and Post-Embalming Removal of the Eyes,
the State Court's Implied Conclusion that the Evidence
Was Not Impeaching Was Unreasonable
.......................................................................................
32
3. On
De Novo Review, Petitioner Is Entitled to Habeas Relief on
His Brady Claim
...............................................................................................
36
A. The
Court Need Not Defer to the Idaho Post-Conviction Court's
Factual Finding that C.W.'s Eyes Were Removed Before
Release and Embalming
..................................................................................................
38
i. The
evidence presented in state court
.............................................. 38
ii. The
state post-conviction court's finding of pre-release and
pre-embalming removal
..........................................................................
54
iii.
The factual finding that C.W.'s eyes were removed at the
autopsy was unreasonable in light of the evidence presented
to the state court, and thus this Court need not apply the
presumption of correctness
........................................................................................
61
B. The
Prosecution Failed to Disclose Material Impeachment Evidence
to the Defense
........................................................................................................
68
Conclusion
.........................................................................................................................
71
BACKGROUND
Following
a jury trial in the Fourth Judicial District Court in Ada
County, Idaho, Petitioner was convicted of the first-degree
murder of C.W., the eleven-month-old son of Petitioner's
girlfriend.[2]
The following facts are taken from Petitioner's state
court proceedings:
On the afternoon of December 27, 1996, [C.W.] sustained a
serious head injury while in the care of Stevens, the
child's mother's boyfriend. The child died the next
day after he was declared brain dead and removed from life
support. Stevens claimed the head injury was the result of an
accidental fall down the stairs, but the State contended the
head injury occurred after Stevens violently shook the child
and slammed the child's head onto the edge of a bathtub.
Stevens was charged with murder in the first degree for
killing the child during the course of committing an
aggravated battery, Idaho Code §§ 18-4001, 18-4002,
18-4003(d).
Stevens v. State, 327 P.3d 372, 378 (Idaho Ct. App.
2013) (Stevens II).
C.W.
died from a head injury, but the State and Petitioner had
vastly different versions of how C.W. sustained that injury.
“Stevens argued the cause of the injury was accidental,
asserting [Stevens] fell asleep and awoke approximately
twenty minutes later to the sound of ‘thumps or a
thud' and discovered the child lying at the bottom of the
stairs not moving. After attempting to rouse the child and
administer cardiopulmonary resuscitation (CPR), Stevens
called 911 approximately five minutes later.”
Id. at 379.
The
State's theory of the case was that “Stevens had
been physically abusing the child since July, and on December
27, he was in the bathroom with the child, got frustrated
with the child, violently shook the child, and then slammed
the child's head against the side of the bathtub. The
State further contended that Stevens then waited over half an
hour to call 911.” Id. The prosecution offered
four types of evidence to support that theory: “(1)
evidence that Stevens gave inconsistent accounts of what
happened on December 27; (2) evidence that the child had been
abused over the prior six months; (3) evidence that a child
could not receive as severe a skull fracture as suffered by
the child from a fall down stairs; and (4) evidence that the
child had been shaken on December 27.” Id.
As
explained by the state district court during post-conviction
proceedings, the first three types of evidence were highly
controverted at trial. The first type of evidence,
Petitioner's allegedly inconsistent statements, was of
limited significance:
First, the State claimed that Stevens gave different accounts
of where he began CPR on [C.W.]. However, one of the
individuals the State cited to specifically said he did not
remember Stevens saying where CPR was started. At an
interview on December 27, Stevens said that he began CPR in
the kitchen, but gave [C.W.] a few breaths on the way from
the bedroom to the kitchen. Second, the State claimed that
Stevens gave inconsistent accounts of how many thumps he
heard [when he awoke]. However, Stevens has maintained from
the very beginning that he was not sure how many sounds he
heard. Third, the State claimed that Stevens never told the
police that [C.W.] had vomited in the bathtub the night
before, and thus he had no explanation for why there was
vomit in the bathtub. However, in an interview at St.
Alphonsus on December 27, Stevens told Detectives that he was
up with [C.W.] the night before because he was sick and
“projectile vomiting.”
(State's Lodging C-11 at 2360 (internal citations
omitted).) Petitioner also informed the police that C.W. had
thrown up the morning of December 27. (State's Lodging
A-9 at 1192-93.) Projectile vomiting was not unusual for
C.W., who was undergoing a course of medical treatment for
this reflux problem; sometimes the treatment would help, and
sometimes it would not. (Id. at 682-85.)
The
State also “claimed that Stevens never told the police
he removed [C.W.'s] shirt and shoes even though
[C.W.'s] shirt and shoes were removed by the time the
paramedics got there.” (State's Lodging C-11 at
2360.) However, Petitioner did state that he had removed the
shirt while he was attempting to revive C.W. in the master
bedroom and that “the only reason he did not disclose
this fact earlier was that the police had never asked about
it.” (Id.) Petitioner also stated that C.W.
was wearing his shoes as Petitioner attempted to revive him
but did not explain why he was not wearing shoes when the
paramedics arrived. (Id.) It is unclear how
Petitioner's failure to affirmatively state when and
where he removed the shoes is actually inconsistent with the
fact that C.W. was not wearing shoes when the paramedics saw
him.
With
its second type of evidence, the State attempted to show that
Petitioner had been abusing C.W. However, this testimony also
was strongly disputed:
First, the State presented the testimony of various
individuals who stated they almost always saw [C.W.] with
bruising on his body. These opinions indicated the bruising
looked like it was caused by abuse. Stevens countered this
with the testimony of various individuals who said [C.W.] had
normal bruising for a child of his age, including the
testimony of [C.W.'s] pediatricians. Second, the State
presented the testimony of several individuals who had heard
Stevens call [C.W.] names such as Mr. shitty diapers, little
asshole and little maggot. These individuals testified they
did not think Stevens was joking when he used these names.
Stevens contends that these names were used in jest, and
[C.W.'s mother] admitted that she had also used the
nickname Mr. shitty diapers to refer to [C.W.]. Third, the
State presented instances of specific injuries [C.W.]
sustained while on Stevens' watch. Mr. Stevens gave
various explanations for how these injuries had occurred.
Fourth, the State presented evidence that [C.W.] did not
start getting bruises until he moved in with Stevens.
Stevens' explanation for this was that [C.W.'s]
bruising coincided with the point in [C.W.'s] life when
he became mobile. Finally, the State argued Stevens failed to
present any evidence that[] “anybody is responsible for
bruises other than what occurred on the defendant's
watch.” However, at least six different witnesses
testified they had seen [C.W.] fall and bruise himself.
Stevens also showed that no one, including [C.W's
mother], had ever seen him hit or spank [C.W.].
(Id. at 2360-61 (internal citations omitted).)
The
third type of evidence presented by the State involved
C.W.'s skull fracture. The State's theory was that
C.W. “could not have received his skull fracture from a
fall down the stairs, ” but-again-there was conflicting
expert testimony on this issue:
First, the State claimed that [C.W.'s] fracture was
diastatic, which means that the edges of the fracture are
wide apart. The State's expert Dr. Smith testified that
“considerably more force” is required to produce
a diastatic fracture. However, two of the State's other
witnesses, including the Doctor who performed [C.W.'s]
autopsy, testified the fracture did not appear to be
diastatic. Second, the State called a physicist, Dr. Saami
Shaibani, who testified it would have been physically
impossible for [C.W.] to get this fracture in this precise
location from a fall down the stairs. However, another
witness for the State testified that [C.W.] would only have
to hit his head “somewhere in that area” not
necessarily at any particular point on the skull to create
this fracture.
(Id. at 2361 (alteration omitted).) The State called
five experts who testified that C.W. could not have gotten
the skull fracture from falling down the stairs, partly based
on the length of the skull fracture as measured at autopsy,
which was between eight and nine centimeters.[3] Petitioner called three
experts who testified the fracture was, in fact, consistent
with C.W. falling down the stairs. (Id.)
As can
been gleaned from this review of the first three types of
evidence presented by the State at trial, what exactly
happened to C.W. was the subject of much dispute, and there
was evidence to support both the State's and
Petitioner's versions of events. Therefore, as the state
post-conviction court later acknowledged, the evidence that
C.W. had shaken-baby syndrome “was the most important
evidence in the State's case because it was direct
evidence that [C.W.] was battered on December 27, which was a
necessary element of the State's first degree murder
charge.” (Id.) Without the evidence of violent
shaking, “it is unlikely the State would have been able
to prove its first degree murder charge.” (Id.
at 2361-62.)
However,
this evidence also was contested, and scientific evidence was
presented that supported each version of what happened to
C.W. For example, there was blood present between the two
hemispheres of C.W.'s brain. One state expert testified
that this blood “could not be explained by a fall down
the stairs, ” but a different state expert testified
“that a severe fall down the stairs could possibly
explain this type of injury.” (Id. at 2362.)
The
State also presented evidence that C.W. had
“subarachnoid hemorrhaging and subdural
hematomas.” (Id.) Several of the State's
expert witnesses testified that these injuries were
consistent with shaken-baby syndrome. But two of the
State's experts also testified that “intracranial
pressure can cause subarachnoid hemorrhages and subdural
hematomas, ” which was consistent with Petitioner's
account of C.W.'s injuries. (Id.) C.W. also had
retinal hemorrhaging. The evidence established that such
hemorrhaging “can be a red flag for shaken baby
syndrome, ” but several of the prosecution's own
experts “admitted that intracranial pressure and
subarachnoid hemorrhaging can also cause retinal
hemorrhaging.” (Id.)
The
most crucial scientific evidence as to whether C.W. was
shaken was offered by State's expert Dr. Brooks Crawford,
an ophthalmologist who testified regarding his examination of
C.W.'s eyes. Several months after C.W.'s death, his
eyes were sent to Dr. Crawford for analysis. (State's
Lodging C-27.) Dr. Crawford testified that C.W. “had
hemorrhaging in over 30% of his eyes, hemorrhaging in both
eyes, and no hemorrhaging in the equatorial
region”-occurrences which Dr. Crawford explained are
“rarely seen in cases involving only blunt
trauma.” (State's Lodging C-11 at 2362.)
Dr.
Crawford testified that he could “think of no other
way to explain the findings, this constellation of
findings that we have here, except for violent
shaking. There's no other explanation
for it.” (State's Lodging A-9 at 789 (emphasis
added).) However, as later noted by the post-conviction
court, Dr. Crawford's own pathology report seems to
contradict at least one of these findings. (State's
Lodging C-11 at 2362 (“Dr. Crawford's Eye Pathology
Report appears to indicate that [C.W.'s] right eye did
have hemorrhaging in the equatorial region.”).)
Perhaps
the most definitive testimony from Dr. Crawford involved
macular or perimacular folds, which occur in the eye when the
internal limiting membrane tears away from the retina,
allowing “the vitreous to contract a little bit and
produce this fold that then goes around the macular
area.” (State's Lodging A-9 at 775.) Dr. Crawford
saw such folds in C.W.'s eyes. Although macular folds are
not found exclusively in shaken-baby cases, Dr. Crawford
testified that they are “very highly specific” to
shaken-baby syndrome because it would take a rotational force
like whiplash, rather than a translational force like a
“straight blow to the head, ” to cause macular
folding. (Id. at 776-77.) Dr. Crawford stressed that
the folds almost always signal shaken baby syndrome,
noting that there were only “two cases now in the
world's literature of macular folds that were not seen in
shaken baby syndrome.” (Id. at 842; see
also Id. at 858 (“We know of at least one other
case now or two cases now where a macular fold did occur in a
person who did have a severe head injury.”).)
Dr.
Gregory Kent, an ophthalmologist who took photographs of
C.W.'s eyes with a retinal camera while C.W. was still
alive, testified that he did not see any macular folding.
(Id. at 748, 754.) However, Dr. Kent went on to
testify that the fact that he did not see the folds did not
necessarily mean they did not exist, and that other
techniques, such as a three-dimensional examination, might
have been able to pick up injuries that were not visible from
the retinal photographs. (Id. at 755.)
Petitioner
countered Dr. Crawford's eye testimony with the testimony
of Dr. Lawrence Thibault, a professor of bioengineering,
neurosurgery, and orthopedic surgery specializing in head
injuries. (Id. at 1556-59.) Dr. Thibault disagreed
with Dr. Crawford that retinal hemorrhages could be caused by
a rotational force or shearing force, an opinion that was
based on Dr. Thibault's research on guinea pigs.
(Id. at 1584-85.) He also testified that shaking
could not cause macular folds in the eyes because
“there's no force produced during shaking to give
you that event.” (Id. at 1586.) Petitioner
also presented the testimony of forensic pathologist Dr. John
Plunkett, who stated that short distant falls can cause
retinal hemorrhaging and that with the injury that C.W.
suffered, “there's a high probability that you are
going to get retinal hemorrhage regardless of whether that
injury was caused by a fall or someone picking him up and
throwing him into a wall.” (State's Lodging A-9 at
1961, 1973.) With respect to the macular folding seen by Dr.
Crawford, Dr. Plunkett testified that macular folds can be
found with different types of injuries and that “[n]o
one knows” the significance of the presence of macular
folds. (Id. at 1978-79.)
Petitioner
was found guilty of first-degree murder. He was sentenced to
life imprisonment without the possibility of parole.
While
the case was on appeal, Petitioner filed a motion for a new
trial, based on newly discovered evidence, under Idaho
Criminal Rule 34. (State's Lodging A-3 at 56-57; see
also State's Lodging A-5 at 435-39.) The judge in
Petitioner's trial, who after the trial had been elected
to a position as a justice of the Idaho Supreme Court, was
then specially appointed to sit as a district trial judge to
hear and decide Petitioner's motion for a new trial.
The
newly discovered evidence “consist[ed] of, among other
things, evidence that the child's eyes may have been
damaged during embalming.” Stevens II, 327
P.3d at 379. This evidence included (1) “a mortuary
report indicating the child was embalmed prior to his eyes
being removed for examination, ”[4] id.; (2) a 2003
investigative report by Detective Jim Miller (a) stating that
he and another detective (his brother, Detective Joe Miller)
both remembered C.W.'s eyes being removed a day or two
after the autopsy, (b) noting that on the day after the
autopsy the coroner informed Detective Joe Miller that the
eyes had been removed, and (c) concluding that the eyes were
most likely removed on December 30 or 31, 1996, after the
body had been released to the funeral home and embalmed on
December 29; and (3) affidavits by forensic experts
contending the damage to the eyes seen by Dr. Crawford
occurred after death as a result of the embalming, rather
than by shaking while the child was alive.
After
an evidentiary hearing, the court denied the motion,
concluding that although the evidence strongly suggested that
the eyes were removed after C.W.'s body was released to
the funeral home and embalmed, “the evidence indicating
the eye damage occurred after death . . . was not newly
discovered evidence because counsel could have discovered it
with due diligence.” Stevens II, 327 P.3d at
379. Thus, the evidence did not meet the standard for a new
trial under Rule 34. The Idaho Supreme Court affirmed the
conviction and the denial of Petitioner's motion for a
new trial. State v. Stevens, 191 P.3d 217, 220
(Idaho 2008) (Stevens I).
Petitioner
then filed a petition for state post-conviction relief,
asserting that the State failed to disclose evidence that the
victim's eyes were removed after embalming, as required
by Brady v. Maryland, 373 U.S. 83 (1963), and that
Petitioner's trial counsel rendered ineffective
assistance in several areas, including by failing to discover
the evidence of post-release and post-embalming removal of
C.W.'s eyes. In April 2011, the court held an evidentiary
hearing on Petitioner's Brady
claim.[5]
Following the hearing, the post-conviction court denied the
petition. (State's Lodging C-11 at 2355-83; C-12.)
Petitioner
appealed, and the Idaho Court of Appeals affirmed. The court
held that Petitioner's Brady claim failed for
the reasons that the undisclosed evidence of post-release and
post-embalming removal was not exculpatory and was not in the
possession or control of the government. Stevens II,
327 P.3d at 384-85. The court also rejected Petitioner's
ineffective assistance of counsel claims, holding that
Petitioner's counsel did not perform deficiently because,
although counsel could have discovered the “date
discrepancy” before trial, “the mere fact counsel
did not discover it did not amount to deficient performance
where counsel's investigation was otherwise
reasonable.”[6] Id. at 391. The Idaho Supreme
Court denied review. (State's Lodging D-12.)
Now, in
his federal habeas corpus Petition, Petitioner raises these
claims: (1) a due process claim under Brady, based
on the prosecutor's failure to disclose evidence that the
victim's eyes were removed after the body was released to
the funeral home and embalmed; (2) a claim of ineffective
assistance of trial counsel, based on counsel's failure
(a) to discover the evidence regarding the timing of the
removal of the victim's eyes, (b) to investigate reports
that medication the C.W. was taking for his reflux problem
could cause cardiac arrest, providing an additional reason
why he might have fallen down the stairs, and (c) to consult
with an expert regarding a scan of the victim's skull
showing that the skull fracture was smaller than previously
believed; and (3) a claim of ineffective assistance of direct
appeal counsel, based on counsel's failure to challenge
Justice Eismann's special appointment to hear
Petitioner's motion for a new trial. (Dkt. 1.)
For the
reasons that follow, the Court concludes that Petitioner is
entitled to habeas relief on his Brady claim.
Therefore, the Court need not address Petitioner's claims
of ineffective assistance of counsel.
HABEAS
CORPUS STANDARD OF LAW
It is
“a fundamental precept of liberty” that a person
is guaranteed freedom from unlawful restraint, and the writ
of habeas corpus is “a vital instrument to secure that
freedom.” Boumediene v. Bush, 553 U.S. 723,
739 (2008). Habeas relief is available to obtain release from
state custody only when a federal court determines that the
petitioner “is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
Congress
has placed limits upon the availability of such relief
described in § 2254(d), as amended by the Anti-terrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). That statute constrains the issuance
of a writ of habeas corpus to those instances where the state
court's adjudication of the petitioner's claim
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). This means that, in most cases, a
federal district court will defer to the findings and
conclusions of the state courts out of comity and respect for
the important role the state courts play in adjudicating
federal constitutional issues in state criminal cases. This
concept is often referred to as “AEDPA
deference.” A federal habeas court reviews the state
court's “last reasoned decision” in
determining whether a petitioner is entitled to relief.
Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
When a
party contests the state court's legal conclusions,
including application of the law to the facts, §
2254(d)(1) governs. That section consists of two alternative
tests: the “contrary to” test and the
“unreasonable application” test.
Under
the first test, a state court's decision is
“contrary to” clearly established federal law
“if the state court applies a rule different from the
governing law set forth in [the Supreme Court's] cases,
or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable
facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the alternative second test of
“unreasonable application, ” the petitioner must
show that the state court, although identifying “the
correct governing legal rule” from Supreme Court
precedent, nonetheless “unreasonably applie[d] it to
the facts of the particular state prisoner's case.”
Williams (Terry) v. Taylor, 529 U.S. 362, 407
(2000). “Section 2254(d)(1) provides a remedy
for instances in which a state court unreasonably applies
[Supreme Court] precedent; it does not require state courts
to extend that precedent or license federal courts to treat
the failure to do so as error.” White v.
Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis omitted).
Significantly,
a federal court cannot grant habeas relief simply because it
concludes in its independent judgment that a state
court's decision is incorrect or wrong; rather, the state
court's application of federal law must be objectively
unreasonable to warrant relief. Lockyer v. Andrade,
538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If
fair- minded jurists could disagree on the correctness of the
state court's decision, then relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 562
U.S. 86, 102 (2011). On that subject, the Supreme Court has
emphasized that “even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. To be entitled to habeas
relief under § 2254(d)(1), “a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. at 103.
Further,
AEDPA deference is required even where the state court denied
a petitioner's claim without expressly addressing it. In
such a case, the federal court must “conduct an
independent review of the record to determine what arguments
or theories could have supported the state court's
decision.” Bemore v. Chappell, 788 F.3d 1151,
1161 (9th Cir. 2015) (internal quotation marks and
alterations omitted). The court must then decide
“whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a decision of the Supreme Court.”
Id. (internal quotation marks and alterations
omitted).
The
source of clearly established federal law must come from the
holdings of the United States Supreme Court, but circuit
court decisions may be persuasive authority for deciding
whether a state court decision is an unreasonable application
of Supreme Court precedent. Duhaime v. Ducharme, 200
F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may
not be used “to refine or sharpen a general principle
of Supreme Court jurisprudence into a specific legal rule
that th[e] Court has not announced.” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
As to
the facts, the Supreme Court has instructed that
“review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 180 (2011). This means that evidence not
presented to the state court may not be introduced on federal
habeas review if a claim was adjudicated on the merits in
state court and if the underlying factual determinations of
the state court were reasonable. See Murray v.
Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014);
(“After Pinholster, a federal habeas court may
consider new evidence only on de novo review, subject to the
limitations of § 2254(e)(2).”); Hurles v.
Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we
determine, considering only the evidence before the state
court, that the adjudication of a claim on the merits . . .
was based on an unreasonable determination of the facts, we
evaluate the claim de novo, and we may consider evidence
properly presented for the first time in federal
court.”).
Two
separate statutory subsections govern a federal court's
review of state court factual findings:
Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary, §
2254(e)(1), and a decision adjudicated on the merits in a
state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding, § 2254(d)(2) . . . .
Miller-El v. Cockrell, 537 U.S. 322, 340 (2010).
A court
reviews a state court's factual determination pursuant to
§ 2254(d)(2) when a petitioner contests the
reasonableness of that determination based on the state court
record. Taylor v. Maddox, 366 F.3d 992, 999 (9th
Cir. 2004), abrogated on other grounds as recognized in
Murray, 745 F.3d 984 (9th Cir. 2014). Under subsection
(d)(2), there are two methods generally used to challenge
factual findings as unreasonable. “First, a petitioner
may challenge the substance of the state court's findings
and attempt to show that those findings were not supported by
substantial evidence in the state court record. Second, a
petitioner may challenge the fact-finding process itself on
the ground that it was deficient in some material way.”
Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir.
2012) (internal citations omitted).
Importantly,
a “state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301
(2010). “The question under AEDPA is not whether a
federal court believes the state court's determination
was incorrect but whether that determination was
unreasonable-a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Under
the second subsection dealing with state court findings of
fact, 28 U.S.C. § 2254(e)(1), such factual findings are
presumed to be correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence.
This standard “is demanding but not insatiable, ”
and “deference does not by definition preclude
relief.” Miller-El v. Dretke, 545 U.S. 231,
240 (2005) (internal quotation marks and alteration omitted).
The
relationship between subsections (d)(2) and (e)(1) of §
2254 is not entirely clear. In Taylor v. Maddox, the
Ninth Circuit held that “the presumption of correctness
and the clear-and-convincing standard of proof [as set forth
in § (e)(1)] only come into play once the state
court's fact-findings survive any intrinsic challenge
[under § (d)(2)]; they do not apply to a challenge that
is governed by the deference implicit in the
‘unreasonable determination' standard of section
2254(d)(2).” 366 F.3d at 1000. However, in Cullen
v. Pinholster, the United States Supreme Court held that
new evidence introduced in federal court “has no
bearing” on a merits review of a state court's
legal conclusions. 563 U.S. at 185.
In
Murray, the Ninth Circuit explained that the
decision in Pinholster “eliminated the
relevance of ‘extrinsic' challenges when …
reviewing state-court decisions under AEDPA.” 745 F.3d
at 999. As a result, the interplay between § 2254(d)(2)
and § 2254(e)(1) is unresolved. Id. at 1001
(noting that the Supreme Court has, in some cases, assumed
that § (e)(1) merely qualifies § (d)(2) and that
“we too have continued to struggle with the
relationship between §§ 2254(d)(2) and (e)(1) when
reviewing state-court factual findings under AEDPA”);
see also Wood, 558 U.S. at 300 (declining to address
the issue). To date, courts of precedent facing this dilemma
have not found the differences between § 2254(d)(2) and
§ 2254(e)(1) determinative under the particular facts
before those courts. See Wood, 558 U.S. at 304-05
(“Because the resolution of this case does not turn on
them, we leave for another day the questions of how and when
§ 2254(e)(1) applies in challenges to a state
court's factual determinations under §
2254(d)(2).”); Murray, 745 F.3d at 1001
(“[W]e do not believe the difference between our two
lines of cases is determinative in this case, and thus we
need not resolve the apparent conflict to decide this
case.”).
If a
petitioner satisfies § 2254(d)-either by showing that
the state court's adjudication of the claim was contrary
to, or an unreasonable application of, Supreme Court
precedent, or by establishing that the state court's
factual findings were unreasonable-then the federal habeas
court must review the petitioner's claim de
novo.[7]Hurles, 752 F.3d at 778. As in the
pre-AEDPA era, a district court considering a habeas claim de
novo may draw upon United States Supreme Court and circuit
precedent, limited only by the non-retroactivity rule of
Teague v. Lane, 489 U.S. 288 (1989).
However,
if the factual findings of the state court are not
unreasonable under § 2254(d)(2), then even on de novo
review the Court must apply the presumption of correctness
found in 28 U.S.C. § 2254(e)(1) to any facts found by
the state courts. See Pirtle v. Morgan, 313 F.3d
1160, 1167-68 (9th Cir. 2002). Conversely, if a state court
factual determination is unreasonable, the federal court is
not limited by § 2254(e)(1) and may consider evidence
outside the state court record, except to the extent that
§ 2254(e)(2) might apply. See Murray, 745 F.3d
at 1000.
Generally,
even if a petitioner succeeds in demonstrating a
constitutional error in his conviction, he is entitled to
federal habeas relief only if he also “can establish
that [the error] resulted in ‘actual
prejudice.'” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). Under the Brecht standard, an
error is not harmless and habeas relief must be granted if
the federal court has “grave doubt about whether a
trial error of federal law had substantial and injurious
effect or influence in determining the jury's
verdict.” O'Neal v. McAninch, 513 U.S.
432, 436 (1995) (internal quotation marks omitted). However,
some types of claims “are analyzed under their own
harmless error standards, which can render Brecht
analysis unnecessary.” Jackson v. Brown, 513
F.3d 1057, 1070 (9th Cir. 2008). Brady claims are in
this category, and if a court has found a Brady
violation, “it cannot subsequently be found harmless
under Brecht.” Kyles v. Whitley, 514
U.S. 419, 436 (1995).
DISCUSSION
In
Claim 1, Petitioner asserts that the prosecution failed to
disclose, in violation of Brady v. Maryland,
evidence that C.W.'s eyes were removed for examination
after the victim's body was released to the funeral home
and embalmed.
1.Clearly-Established
Law
Under
the Due Process Clause of the Fourteenth Amendment, the
prosecution has a duty to disclose evidence favorable to the
defense that is material to guilt or punishment, regardless
of whether the defense has requested such evidence.
Brady, 373 U.S. at 87; United States v.
Bagley, 473 U.S. 667, 676 (1985). A meritorious
Brady claim contains three essential components: (1)
the evidence must be favorable to the accused, either because
it is exculpatory or because it is impeaching; (2) the
government must have withheld the evidence, either
intentionally or inadvertently; and ...