Cooper v. Woodford

• Decision Date: 09 February 2004
• Docket Number: No. 04-70578.,04-70578.
• Parties: Kevin COOPER, Petitioner, v. Jeanne WOODFORD, Warden, San Quentin State Prison, San Quentin, California, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.3d 1117

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.

February 9, 2004.

Before MARY M. SCHROEDER, Chief Judge, Alex KOZINSKI, A. WALLACE TASHIMA, BARRY G. SILVERMAN, SUSAN P. GRABER, KIM MCLANE WARDLAW, WILLIAM W. FLETCHER, RAYMOND C. FISHER, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON and JAY S. BYBEE, Circuit Judges.

Order; Partial Concurrence and Partial Dissent by Judge SILVERMAN; Dissent by Judge TALLMAN.

ORDER

A judge of this Court called for en banc review of the February 8, 2004, three-judge panel order in this case. A majority of the non-recused judges has voted in favor of en banc review of petitioner Kevin Cooper's application to file a second or successive petition for a writ of habeas corpus in the district court. See 28 U.S.C. § 2244(b)(3)(A). The statute does not allow a petition for rehearing of a denial of authorization to file a second or successive application, but we have sua sponte power to rehear such a denial en banc. Thompson v. Calderon, 151 F.3d 918, 922 (9th Cir.1998) (en banc), cert. denied, 524 U.S. 965, 119 S.Ct. 3, 141 L.Ed.2d 765 (1998); In re Byrd, 269 F.3d 585 (6th Cir.2001), cert. denied sub nom. Bagley v. Byrd, 534 U.S. 1109, 122 S.Ct. 913, 151 L.Ed.2d 880 (2002); Triestman v. United States, 124 F.3d 361 (2d Cir.1997). Cooper is scheduled to be executed at 12:01 a.m. tomorrow morning.

The district court denied Cooper's first federal petition in 1997, and we affirmed in Cooper v. Calderon, 255 F.3d 1104 (9th Cir.2001), cert. denied, 537 U.S. 861, 123 S.Ct. 238, 154 L.Ed.2d 100 (2002). Through newly obtained counsel, Cooper filed with this Court on February 6, 2004, an application to file a second or successive application in the district court. Cooper also filed a motion for a stay of execution. A majority of the three-judge panel voted to deny the application and the stay yesterday, February 8, 2004.

Cooper has made a claim of actual innocence, accompanied by a claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because Cooper makes a claim of actual innocence accompanied by a claim of a constitutional violation, he is making a "gateway" claim under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To make a successful claim under Schlup, "a petitioner must show that in light of all the evidence, including new evidence, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Carriger v. Stewart, 132 F.3d 463, 478(9th Cir.1997) (en banc) (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). The Supreme Court in Schlup "emphasized that in considering all the available evidence, the court is not bound by the rules of admissibility, but must consider `all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.'" Id.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, a petitioner seeking authorization to file a second or successive application for habeas corpus must satisfy two statutorily imposed conditions. He must show that

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

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

28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii).

The AEDPA requirements for a second or successive application are stricter than the Schlup standard in two ways. First, § 2244(b)(2)(B)(i) requires that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." There is no requirement under Schlup that the factual claim was not discoverable through the exercise of due diligence. Second, § 2244(b)(2)(B)(ii) requires that "the facts underlying the claim, if proven and viewed in 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." (Emphasis added.) Schlup requires only that an applicant show that it is "more likely than not" that no reasonable fact-finder would have found him guilty.

We should grant authorization to Cooper to file a second or successive application for habeas corpus if we find that he has made a prima facie case of success on the merits of such an application. "By `prima facie showing' we understand simply a sufficient showing of possible merit to warrant a fuller 2075 exploration by the district court." Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)) (emphasis added).

We do not for purposes of this order decide whether the Schlup standard or the standard of 28 U.S.C. § 2244(b)(2)(B) applies. Under either standard, we hold that Cooper is entitled to file a second or successive application.

I. Background

On June 2, 1983, Cooper escaped from the minimum security area of the California Institute for Men (CIM) where he was incarcerated. He broke into and hid in an empty house in Chino Hills, about two miles away, in San Bernardino County, southeast of Los Angeles. Cooper made telephone calls from this house to his girlfriend asking for money, but she refused to help him. Cooper's last call from the house was at about 8:00 p.m. on June 4.

The Ryens lived next door, about 125 yards away from the house in which Cooper was hiding. During the night of June 4, 1983, the members of the Ryen household were viciously attacked. Doug and Peggy Ryen, the father and mother, were killed, as were their ten-year-old daughter, Jessica, and an eleven-year-old houseguest, Chris Hughes. Doug and Peggy's eight-year-old son, Josh, was left for dead but survived. The bodies of Doug, Peggy, Jessica, and Chris, as well as the still-living Josh, were discovered the next day by Chris's father. All of the murder victims were killed by multiple chopping, cutting, and puncture wounds. Josh suffered the same type of wounds. Jessica was found clutching a substantial amount of fairly long blond or light brown hair in her hand.

Cooper was apprehended at the end of July 1983, and he was tried for capital murder in late 1984 and early 1985. Cooper took the stand and testified that he was innocent. He has consistently maintained his innocence since that time. Cooper testified at trial that he never went to the Ryen house. He testified that he left the house in which he had been staying after that last phone call at 8:00 pm on June 4 and hitchhiked to Mexico. Uncontradicted evidence at trial indicated that Cooper checked into a hotel in Tijuana at about 4:30 p.m. the next day, June 5. After seven days of deliberation, the jury found Cooper guilty of death-eligible first degree murder. After four additional days of deliberation, the jury sentenced Cooper to death.

II. Brady Violation

Cooper attaches two new sworn declarations to his application, both signed in January 2004. These declarations, if believed, appear to indicate that a Brady violation has taken place and that crucial evidence introduced at trial was not reliable. Only two pieces of evidence at trial connected Cooper to the Ryen house. One was a bloody tennis shoe print found on a sheet in Doug and Peggy's bedroom. The other was a single spot of blood found on a wall in the hallway.

There was testimony at trial about the print of a "Pro-Ked Dude" tennis shoe found on a sheet in the Ryens' bedroom, as to which the testimony of two witnesses, William Baird and James Taylor, was particularly important. The California Supreme Court specifically discussed and relied on the testimony of these two men in sustaining Cooper's conviction on direct appeal. People v. Cooper, 53 Cal.3d 771, 797-98, 281 Cal.Rptr. 90, 809 P.2d 865 (1991).

A company representative testified at trial that "Pro-Ked Dude" tennis shoes are manufactured by Stride Rite solely for distribution in prisons and other institutions. They are not distributed to the general public. The sheet from the Ryens' bedroom was initially not thought to have any footprints. However, a bloody footprint was discovered on the sheet after it was taken to the lab and refolded in the manner it had been folded when the footprint was made. William Baird, the Crime Laboratory Manager, testified that the shoe print on the sheet matched two prints found in the other house, and that all of the prints had been made by a close-to-new "Pro-Ked Dude" shoe. Baird further testified that he had a close-to-new "Pro-Ked Dude" shoe of approximately the same size in his lab, previously obtained from another prison. He testified that this shoe allowed him to analyze the print on the sheet and determine that it had come from a prison-issued "Pro-Ked Dude" shoe.

James Taylor, an inmate at CIM during the time Cooper was incarcerated, was a recreation attendant. Taylor testified at trial that he initially gave Cooper a pair of "P.F. Flyer" tennis shoes. He testified that Cooper, then imprisoned under the false name of David Trautman, exchanged his "P.F. Flyers" for a pair of black "Pro-Ked Dudes" a few days before he was transferred to the minimum security area. Cooper escaped from the prison soon after he was transferred to the minimum security area.

Cooper attaches to his application a sworn declaration of Midge Carroll, who was Warden of CIM at Chino while Cooper was incarcerated there. Warden Carroll's declaration, dated...