Coley v. Gonzales

• Citation: 55 F.3d 1385
• Decision Date: 18 May 1995
• Docket Number: No. 93-17221,93-17221
• Parties: Melvin Bernard COLEY, Petitioner-Appellant, v. David A. GONZALES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1385

55 F.3d 1385

Melvin Bernard COLEY, Petitioner-Appellant, v. David A. GONZALES, Respondent-Appellee.

No. 93-17221.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 13, 1995.

Decided May 18, 1995.

Bret A. Maidman, Lewis and Roca, Phoenix, AZ, for petitioner-appellant.

Eric J. Olsson, Asst. Atty. Gen., Tucson, AZ, for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WALLACE, Chief Judge, HUG and FARRIS, Circuit Judges.

WALLACE, Chief Judge:

Coley, an Arizona State prisoner, appeals from the denial of his 28 U.S.C. Sec. 2254 habeas petition challenging his conviction for conspiracy to commit first degree murder, conspiracy to hinder prosecution, and hindering prosecution. Coley argues that the district court's ruling that he is procedurally barred from bringing his claims is erroneous. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 2253. We affirm in part, reverse in part, and remand.

I

Although the history of this case is described in Coley v. Gonzales, 813 F.Supp. 705 (D.Ariz.1992) (Coley ), a brief review of the proceedings will serve to put this appeal in context.

In 1975, Arizona Rule of Criminal Procedure 32 was amended to consolidate several types of post-indictment writs, petitions and motions. Rule 32 encompasses the relief available by writ of habeas corpus. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir.1994) (discussing history of Arizona Rule 32). Coley had a direct appeal pending before the Arizona Supreme Court when he filed a Rule 32 petition in Arizona trial court on March 9, 1988. The Rule 32 petition was denied by the Arizona trial court on September 23, 1988. Following a 1989 amendment to Arizona Revised Statutes Sec. 12-120.21(A)(1), the claims raised on Coley's direct appeal and his appeal of the Rule 32 trial court proceedings were consolidated and transferred to the Arizona Court of Appeals for resolution on August 30, 1989. The Arizona Court of Appeals disposed of Coley's claims, affirming the conviction on the direct appeal and affirming the denial of Rule 32 relief. Coley did not appeal to the Arizona Supreme Court, which could have granted him discretionary relief. The Arizona Court of Appeals mandate issued on December 31, 1990.

Coley then filed an amended habeas petition in the district court on July 30, 1991, contending that: (1) the prosecutor failed to disclose exculpatory evidence, (2) there was jury misconduct, and (3) the trial court erroneously failed to sever certain counts. The petition also raised an ineffective assistance of counsel claim, although Coley's pro se opening brief does not discuss it. After the district court denied the writ based on the ground that Coley had procedurally defaulted the claims, Coley appealed.

II

We review denials of habeas petitions de novo. Sanders v. Ratelle, 21 F.3d 1446 1451 (9th Cir.1994). However, the district court's factual findings are reviewed for clear error, Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991), and the state court's factual determinations are presumed correct. 28 U.S.C. Sec. 2254(d).

Coley's ineffective assistance of counsel claim was not raised in the opening brief to this court. The claim is therefore abandoned. Officers for Justice v. Civil Service Comm'n, 979 F.2d 721, 726 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1645, 123 L.Ed.2d 267 (1993).

Coley's claim regarding the failure by the prosecutor to disclose exculpatory evidence was not raised in his direct appeal brief. It was raised for the first time in a motion for leave to amend his Rule 32 petition, after the Arizona trial court denied that petition. Procedural default applies to this claim.

Coley's jury misconduct claim was not raised on direct appeal. Like the exculpatory evidence claim, procedural default applies.

As to these latter habeas claims, Coley's failure to raise them bars review unless he can demonstrate "cause and actual prejudice." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992) (Harmon ). Coley argues that his case was improperly transferred to the Arizona Court of Appeals upon consolidation by the Arizona Supreme Court, and that this somehow excuses his failure to raise some of his claims. The argument is frivolous, because the statutory amendment in 1989 gave the Arizona Court of Appeals jurisdiction over the case. The district court's conclusion that Coley has not demonstrated "cause" for failing to raise these habeas claims in the state court is affirmed. See Coley, 813 F.Supp. at 709.

Coley also argues that he is "actually innocent" of the crime of conspiracy to murder. If Coley can demonstrate that a "fundamental miscarriage of justice" would result from denying his habeas petition, we can review his claim even if he has not demonstrated cause for the default and actual prejudice. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). This exception is utilized only to remedy a procedural error of constitutional proportion that has probably resulted in the conviction of an innocent person.

Application of the fundamental miscarriage of justice exception "makes clear that a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). The exception is available only where the petitioner "supplements his constitutional claim with a colorable showing of factual innocence." Id. (emphasis in original). Not only has there been no "colorable showing" of factual innocence to excuse the procedural default, but it is not even clear if Coley alleges any procedural constitutional error warranting the exception. Coley seems to be making the claim that he is factually innocent--but that claim alone is not reviewable on habeas. Id.

Even if we were to read Coley's "actual innocence" contention as "supplementing" some other claim about defective constitutional procedure at his trial, the exception is warranted only if Coley shows that a constitutional violation has probably resulted in the conviction of one who is actually innocent. "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup v. Delo, --- U.S. ----, ----, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). Coley has made no such showing.

III

Coley's claim of error regarding the trial court's failure to sever certain counts was raised on direct appeal and decided by the Arizona Court of Appeals. The claim was not taken to the Arizona Supreme Court for discretionary review, and Gonzales argues that it, too, is defaulted.

Generally, the failure to exhaust claims in state court, even if the...