COOPER v. WOODFORD, 357 F.3d 1019 (Fed. 9th Cir. 2/8/2004), 04-70578.

• Decision Date: 08 February 2004
• Docket Number: No. 04-70578.,04-70578.
• Citation: 357 F.3d 1019
• Parties: KEVIN COOPER, Petitioner, v. JEANNE WOODFORD, Warden, San Quentin State Prison, San Quentin, California, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

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357 F.3d 1019

KEVIN COOPER, Petitioner, v. JEANNE WOODFORD, Warden, San Quentin State Prison, San Quentin, California, Respondent.

No. 04-70578.

United States Court of Appeals, Ninth Circuit.

Filed February 8, 2004.

David T. Alexander, George Alan Yuhas, Lisa Marie Schull, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA, for Petitioner.

Holly D. Wilkens, AGCA-Office of the California Attorney General, San Diego, CA, for Respondent.

Before: James R. Browning, Pamela Ann Rymer, and Ronald M. Gould, Circuit Judges.

Order; Dissent by Judge Browning.

ORDER

Kevin Cooper, a California death row inmate whose execution is scheduled for Tuesday, February 10, 2004 at 12:01 a.m., has filed an application to file a successor petition for writ of habeas corpus under 28 U.S.C. § 2244(b)(3), and a request for stay of execution. His request for an order authorizing the district court to consider this petition — his third application in the federal system following denial of his original habeas petition — is premised on the existence of evidence with respect to a blood spot, cigarette butts, and shoe print impressions that he asserts was manufactured by the state and which, if known to the jury, would have weakened the links in the state's chain of circumstantial evidence. He asks for another chance affirmatively to demonstrate his innocence through available mitochondrial DNA testing of hairs found in one of the victim's hands, and testing for the presence of a preservative agent EDTA on a T-shirt. However, with immaterial exceptions, this application turns on facts that have long since been known and that have already been presented and resolved adversely to Cooper in state court evidentiary hearings, proceedings before the California Supreme Court on direct and collateral review, in his original habeas petition in federal court, and in connection with his applications in this court to file second or successive petitions. To the extent that the claims are formulated differently in the petition he now asks to file, they are nevertheless based on facts that were available and could previously have been discovered with the exercise of due diligence. For this reason, Cooper fails to make the showing that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) requires for approval of his application. 28 U.S.C. § 2244(b)(3)(C).

In addition, Cooper's petition does not set forth facts that are sufficient to show by clear and convincing evidence that, in light of the evidence as a whole, no reasonable factfinder would have found him guilty of the offenses charged. The few items of evidence upon which Cooper now relies that were not before the jury have little or no probative value and fall short of showing that it is more likely than not that no reasonable juror would have convicted him.

Cooper has made no showing of actual innocence, nor has he shown that it would be manifestly unjust for the courts to decline to revisit the same issues again. Accordingly, we deny the application to file this successive petition. Given this decision, there is no basis for granting a stay.

I

On June 2, 1983, Cooper escaped from the California Institute for Men (CIM), a state prison.¹ He admitted that he stayed in a vacant house (the Lease house) next door to the Ryens' residence on Thursday night, all day Friday, and Friday night; he hid in the bathroom when one of the owners of the Lease house stopped by on Saturday morning. The murders happened Saturday night. Using a hatchet or axe and a knife, he hacked to death Douglas and Peggy Ryen (37 separate wounds for Douglas, 32 for Peggy), their ten-year-old-daughter Jessica (46 wounds), and eleven-year-old Christopher Hughes (26 wounds), who was spending the night at the Ryens' home. Cooper also inflicted chopping wounds to the head, and stabbing wounds to the throat, of eight-year-old Joshua Ryen, who survived.

At the Lease house, a blood-stained khaki green button identical to the buttons on field jackets issued at the state prison from which Cooper escaped was found on the rug. Tests revealed the presence of blood in the shower and bathroom sink of the Lease home, and hair found in the bathroom sink was consistent with that of Jessica and Doug Ryen. A bloodstained rope in the Lease house bedroom was similar to a bloodstained rope found on the Ryens' driveway. A hatchet covered with dried blood and human hair that was found near the Ryens' home was missing from the Lease house, and the sheath for the hatchet was found in the bedroom where Cooper stayed. Buck knives and at least one ice pick were also missing from the Lease home, though a strap from one buck knife was found on the floor.

Blood found in the Ryens' home was the victims', except for one drop on a wall near where the murders occurred. It belonged to an African-American male, which Cooper is. Two partial shoe prints and one nearly complete shoe print found in the Ryens' house were consistent both with Cooper's size and the Pro Keds shoes issued at CIM.

The Ryens' vehicle, which had been parked outside their house, was missing when the bodies were discovered but was later found in Long Beach. A hand-rolled cigarette butt and "Role-Rite" tobacco that is provided to inmates at CIM (but not sold at retail) was in the car. Similar loose leaf tobacco was found in the bedroom of the Lease house where Cooper had stayed. A witness testified that Cooper smoked hand-rolled cigarettes using Role-Rite tobacco. A hair fragment discovered in the car was consistent with Cooper's pubic hair and a spot of blood found in the car could have come from one of the victims but not from Cooper.

Cooper was charged with four counts of first degree murder and one count of attempted murder in the first degree, and with escape from state prison. He pled guilty to escaping from state prison. On February 19, 1985, a jury convicted Cooper of the first degree murders of Franklyn Douglas Ryen, Jessica Ryen, Peggy Ann Ryen and Christopher Hughes, and of attempted murder in the first degree of Joshua Ryen. The jury found true the special circumstance of multiple murders, which made Cooper death-eligible under California's sentencing scheme. The jury also found true the special circumstance that Cooper intentionally inflicted great bodily injury on Joshua Ryen. The jury then determined the penalty as death on the four murder counts. On May 6, 1991, the California Supreme Court affirmed the convictions and sentence. See People v. Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90 (1991). The United States Supreme Court denied a petition for writ of certiorari on December 16, 1991. Cooper v. California, 502 U.S. 1016 (1991).

On March 24, 1992 Cooper requested appointment of counsel and a stay of execution from the United States District Court for the Southern District of California. He then filed a petition for writ of habeas corpus in the district court on August 11, 1994, and an amended petition on April 12, 1996. Meanwhile, he returned to state court to exhaust a number of claims. On February 19, 1996, the California Supreme Court denied Cooper's state habeas petition. Cooper then filed a supplemental petition in district court on June 20, 1997. Following an evidentiary hearing, the petition was denied on August 25, 1997. We affirmed in Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001), and Cooper's petition for a writ of certiorari was denied by the United States Supreme Court. 537 U.S. 861 (2002). Cooper filed numerous additional papers in state court, and another federal petition for writ of habeas corpus on April 20, 1998. We treated his appeal from the district court's denial of that petition as an application for authorization to file a second or successive petition for writ of habeas corpus based on trial counsel's ineffective assistance with respect to the Koon confession, which we denied. Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001). Cooper then filed a request to file another successor petition that involved DNA testing and tampering, which we also denied; Cooper v. Calderon, No. 99-71430 (9th Cir. Feb. 14, 2003, Apr. 7, 2003) (orders).

Cooper has filed six writs of habeas corpus in the California Supreme Court, the most recent of which was filed on February 2, 2004 and denied February 5, 2004. The petition before the California Supreme Court raised similar claims to those asserted in this application (actual innocence, tampering with evidence, failure to disclose exculpatory evidence, offering unreliable eye witness testimony of Joshua Ryen, denying Cooper the effective assistance of counsel during post-conviction DNA proceedings, and refusal of the state superior court to accept his petition for filing). The supreme court denied all claims on the merits and also denied those having to do with evidence tampering, failure to disclose exculpatory evidence/submission of false testimony to the jury, and offering Ryen's unreliable testimony as untimely, In re Robbins, 18 Cal.4th 770, 780 (1998).

II

Cooper's application is governed by AEDPA. Under AEDPA, in order for us to grant Cooper's application to file a successive petition, he must present a claim that was not previously presented in a federal habeas petition, and that relies on either a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, or a factual predicate which could not have been discovered through due diligence and that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the offense. 28 U.S.C. § 2244(b)(1), 2244(b)(2). We must decide whether his application makes a prima facie showing that satisfies these requirements. 28 U.S.C. § 2244(b)(3)(C).

Cooper argues that he has satisfied these prerequisites because evidence that he says is newly discovered through DNA proceedings, including evidence of false statements...