Goodrum v. Busby

• Decision Date: 09 June 2016
• Docket Number: No. 13-55010,13-55010
• Citation: 824 F.3d 1188
• Parties: Tony Goodrum, Petitioner–Appellant, v. Timothy E. Busby, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

824 F.3d 1188

Tony Goodrum, Petitioner–Appellant

v.Timothy E. Busby, Warden, Respondent–Appellee.

No. 13-55010

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 5, 2016 Pasadena, California

Filed June 9, 2016

Tony Faryar Farmani (argued), Farmani, APLC, San Diego, California, for Petitioner–Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney General; Kamala D. Harris, Attorney General of California; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, San Diego, California, for Respondent–Appellee.

Before: Milan D. Smith, Jr., Paul J. Watford, and Michelle T. Friedland, Circuit Judges.

OPINION

WATFORD

, Circuit Judge:

Tony Goodrum is a California state prisoner serving a 21-year sentence for voluntary manslaughter. The district court denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254

. The court held that Goodrum's petition constituted a “second or successive” petition under 28 U.S.C. § 2244(b), and that he failed to meet that statute's stringent standard for obtaining relief. Goodrum argues that he should not have been required to meet § 2244(b)'s stringent standard because his petition is not, in fact, “second or successive.” We agree with Goodrum.

I

Because the facts underlying Goodrum's conviction are not directly relevant to this appeal, a brief summary will suffice. The State charged Goodrum with murder after he shot and killed an acquaintance of his, Dwayne Stamps, during a heated argument in the garage of Goodrum's home. At trial, Goodrum testified that he shot Stamps in self-defense when Stamps charged at him armed with a metal pipe. The key contested issue at trial was whether Stamps actually had a metal pipe in his hands at the time Goodrum shot him. Police officers found a metal pipe under Stamps' body at the crime scene, but investigators recovered only a partial print from the pipe that could not be matched to anyone present in the garage. The prosecution's case rested to a significant extent on testimony from four individuals who saw all or part of the encounter between Goodrum and Stamps. Each of them testified that they did not see Stamps with a metal pipe in his hands. The jury convicted Goodrum of voluntary manslaughter, most likely on the theory that he acted in self-defense but that his belief in the need for use of deadly force was objectively unreasonable.

Following his conviction, Goodrum unsuccessfully pursued a direct appeal in the California appellate courts challenging mainly the jury instructions given at trial. Goodrum then filed a series of habeas corpus petitions in state court that asserted, as relevant here, claims of police and prosecutorial misconduct and ineffective assistance of counsel. Those claims were predicated on allegations that officers had mishandled the metal pipe found at the crime scene (thereby destroying potentially recoverable prints); and on an affidavit from Howard Herring, one of the four witnesses mentioned above, who asserted that Stamps had in fact been armed with a metal pipe but that the police and prosecutor had coerced him into providing false testimony at trial by threatening him with criminal charges if he refused to cooperate with them. Goodrum claimed that he received ineffective assistance of counsel because his trial lawyer failed to investigate and expose this misconduct.

The state trial court and Court of Appeal denied habeas relief on these claims. To exhaust the remedies available in state court, Goodrum filed another habeas petition raising the same claims in the California Supreme Court.

In April 2007, while his habeas petition remained pending before the California Supreme Court, Goodrum filed a pro se habeas petition in federal court raising only the claims he had already exhausted on direct appeal. Less than two months later, on June 13, 2007, the California Supreme Court denied relief, rendering his claims for police and prosecutorial misconduct and ineffective assistance of counsel exhausted. On June 20, 2007, Goodrum sought to add these newly exhausted claims to his federal habeas proceeding. But instead of filing a motion in the district court to amend his pending federal habeas petition, Goodrum filed in our court an “Application for Leave to File Second or Successive Petition.” As is customary, he attached to his application the new habeas petition he sought leave to file.

Goodrum thought he needed our court's permission to file the new petition because state prisoners must obtain authorization from the court of appeals before filing a “second or successive” petition in the district court. 28 U.S.C. § 2244(b)(3)(A)

. Goodrum assumed, not unreasonably for a lay person, that he needed to obtain such authorization because he had already filed one federal petition two months earlier. But, as we will explain shortly, Goodrum's new petition was not a “second or successive” petition as that term is used in § 2244. He did not need our court's permission to file it; he could have filed it in the district court straight away. Instead of telling Goodrum that, though, we issued an order in September 2007 that stated the following:

This application for authorization to file a second or successive 28 U.S.C. § 2254

habeas corpus petition in the district court is denied without prejudice to refiling should petitioner receive an unfavorable disposition of the first petition that is currently pending in the district court.

Goodrum understandably interpreted this order to mean, not that his request for leave to file the new petition was unnecessary, but rather that it was premature, in the sense that he needed to finish litigating his pending April 2007 petition before our court would consider the application. Goodrum read the order to say that he could return to our court and renew his request for leave to file the new petition if he failed to win relief on the claims raised in his first petition. Goodrum followed that course of action. He litigated the claims raised in his April 2007 petition, and the district court ultimately denied relief. On appeal, our court affirmed. We denied Goodrum's petition for rehearing en banc on September 3, 2010, and the Supreme Court subsequently denied his petition for certiorari.

On October 29, 2010, as instructed, Goodrum returned to our court and refiled his “Application for Leave to File Second or Successive Petition.” In his application, Goodrum noted that the September 2007 order had said he could refile his application if he received an unfavorable disposition of his first petition. “Now that this has happened,” he wrote, “Petitioner now renews his Application in compliance with that order.” On August 31, 2011, we granted him leave to file the new petition.

On September 23, 2011, Goodrum filed his new habeas petition in the district court. On December 1, 2011, he amended that petition with the district court's permission. (The claims alleged in the December 2011 petition are not identical to the claims alleged in the petition Goodrum sought leave to file back in June 2007. We address the implications of that fact at the end of this opinion.)

The district court dismissed the new petition with prejudice. The court began by rejecting Goodrum's argument that his petition should not be deemed “second or successive” at all. That classification matters because a petitioner raising new claims in a second or successive petition must meet a more demanding standard to obtain relief than the standard applicable to claims raised in a first petition. See 28 U.S.C. § 2244(b)(2)

. Goodrum argued that our court had erred by denying his earlier application in September 2007. Rather than denying the application, Goodrum asserted, we should have construed it as a request to amend his then-pending April 2007 petition and transferred the new petition, which he had attached to his application, to the district court. His claims would then have been reviewed, along with his other pending claims, under the less demanding standard applicable to first petitions. See 28 U.S.C. § 2254(d) –(e). As Goodrum pointed out, we held less than a year after issuing the September 2007 order that when a pro se petitioner files a new petition in the district court while an earlier-filed petition is still pending, the district court must construe the new petition as a motion to amend the pending petition rather than as an unauthorized second or successive petition. Woods v. Carey , 525 F.3d 886, 887–90 (9th Cir. 2008).

The district court held that Woods v. Carey

applies only when a pro se petitioner files a new petition in the district court—not, as in this case, when the petitioner files his new petition in the court of appeals. The district court concluded that Goodrum therefore had to meet the more demanding standard applicable to second or successive petitions, and that he could not do so. The court nonetheless granted Goodrum a certificate of appealability on his claims for police and prosecutorial misconduct and ineffective assistance of counsel.

II

Section 2244(b)

states that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed,” subject to two narrow exceptions (one requiring reliance on a new rule of constitutional law made retroactive to cases on collateral review, the other requiring proof of newly discovered facts). 28 U.S.C. § 2244(b)(2).¹ Congress added this provision as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104–132, § 106(b), 110 Stat. 1214, 1220–21. Its purpose was to codify, in modified form, the judge-made “abuse of the writ” doctrine that federal courts had devised to combat serial filings by habeas petitioners. See

Felker v. Turpin , 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). The doctrine developed around the premise that habeas petitioners should generally be “entitled to one, but only one,...