Griffin v. Johnson

• Decision Date: 20 November 2003
• Docket Number: No. 01-36157.,01-36157.
• Citation: 350 F.3d 956
• Parties: James E. GRIFFIN, Jr., Petitioner, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.3d 956

James E. GRIFFIN, Jr., Petitioner, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.

No. 01-36157.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 8, 2003.

Filed November 20, 2003.

COPYRIGHT MATERIAL OMITTED

Christine Stebbins Dahl, Assistant Federal Defender, Portland, OR, for the petitioner-appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding. D.C. No. CV-98-00888-JJ.

Before J. CLIFFORD WALLACE, STEPHEN S. TROTT, and A. WALLACE TASHIMA, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge.

Petitioner James Griffin appeals from the district court's denial of his amended petition for habeas corpus relief. He argues that the district court erred (1) in concluding that his newly presented evidence did not establish actual innocence with respect to his procedurally defaulted ineffective assistance of counsel claim, and (2) in denying an evidentiary hearing on his actual innocence claim. We have jurisdiction to review Griffin's petition pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we affirm.

I.

In February 1991, Griffin met Roseanne Walter at a soup kitchen in Medford, Oregon. Witnesses reported seeing Griffin and Walter driving around town together following this initial encounter. When Walter's body turned up several days later partially burned with multiple stab wounds, Medford police charged Griffin with intentional murder.

Shortly after being indicted for Walter's murder, Griffin obtained summaries of his psychiatric records from Camarillo State Hospital, where he had been institutionalized intermittently throughout his childhood and adolescence. Griffin's discharge summaries from Camarillo indicate that he suffers from "Non-Psychotic Organic Brain Syndrome." Griffin presented this information to his attorney, Justin Smith. He also informed Smith that another Oregon trial court had requested psychiatric evaluations in connection with a prior attempted rape conviction and alleged that these evaluations reached the conclusion that he suffered a mental disease or defect requiring psychiatric care. Smith apparently ignored this information and made no effort to assert the insanity defense Griffin desired.

Instead, Smith based Griffin's defense in part on representations from a state forensic expert's report that stated a fingerprint found on the murder weapon belonged to someone other than Griffin. Immediately after selection of the jury on July 8, 1993, the prosecution informed Smith that the expert changed his mind, deciding to testify that he could not rule out Griffin as the fingerprint's source. This sudden shift in the evidentiary landscape compromised Smith's defense strategy.

Hasty plea negotiations ensued. State prosecutors, who had been planning to urge the judge to impose a determinate life sentence, proposed a twenty-five-year sentence in exchange for a guilty plea. Smith relayed the state's offer to Griffin, explaining for the first time that the state would seek a life sentence if a trial were to lead to Griffin's conviction. Griffin decided to plead guilty. At the plea colloquy on July 12, 1993, he executed a two-page plea petition in which he affirmed that he understood the plea agreement and was satisfied with Smith's services.

In 1994, Griffin applied for state post-conviction relief. He alleged under Oregon law that he did not enter his plea voluntarily and intelligently, that the trial court failed to sustain the plea's factual basis, and that the sentence imposed was excessive and improper. He also claimed to have received ineffective assistance of counsel under both the stated and federal constitutions. Griffin did not offer the post-conviction court any evidence (e.g., hospital records, medical records, or psychiatric evaluations) to substantiate his alleged mental disorder, nor did he call upon Smith to testify as to whether he investigated Griffin's alleged mental illness. The state court denied relief on both claims of error.

Griffin appealed. His brief abandoned the state law and ineffective assistance claims, asserting instead that Smith's representation was tainted by a conflict of interest because he had prosecuted Griffin on multiple previous occasions while serving as a district attorney. The Oregon Court of Appeals affirmed without opinion, and Griffin did not seek review by the Oregon Supreme Court.

In 1998, Griffin petitioned for federal habeas corpus relief, alleging that (1) Smith did not provide effective assistance because, in part, he had a conflict of interest, (2) trial counsel "coerced [him] into entering a plea of guilty," (3) the trial court should have granted a motion to change venue, and (4) the sentence imposed was unlawful. His ineffective assistance of counsel claim was not based on Smith's failure to pursue an insanity defense. In 2000, he amended this petition, however, abandoning his former allegations and arguing instead that (1) he received ineffective assistance of counsel when Smith failed to investigate his mental-health history and advised him to plead guilty, (2) he received ineffective assistance of counsel when Smith allowed him to enter a guilty plea that was unknowing and involuntary, and (3) the trial court accepted his plea without determining whether it was knowing and voluntary. Griffin acknowledged that he failed to exhaust his state court remedies in petitioning the Oregon Court of Appeals for review.

A magistrate judge recommended denying habeas corpus relief because Griffin procedurally defaulted on all his claims and failed to clear the procedural bar through either the "cause and prejudice" or "actual innocence" gateways of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). On de novo review, the district court adopted the magistrate judge's findings and recommendations in their entirety. Thereafter, the district court issued a Certificate of Appealability (COA) under 28 U.S.C. § 2253(c) for Griffin's claim that Smith rendered ineffective assistance of counsel.

II.

The COA limits this appeal to the issue of whether Griffin received ineffective assistance of counsel because (1) Smith failed to investigate his mental-health history, and (2) Smith allowed him to enter a guilty plea that was not knowing or voluntary due to his alleged incompetence. Griffin requests that we expand our review to consider issues beyond the COA's scope, but Circuit Rule 22-1(d) does not permit us to do so:

If the district court denies a certificate of appealability in part, the court of appeals will not consider uncertified issues unless petitioner first seeks, and the court of appeals grants, broader certification. Petitioners desiring broader certification must file, in the court of appeals, a separate motion for broader certification, along with a statement of reasons why a certificate should be granted as to any issue(s) within thirty-five days of the district court's entry of its order denying a certificate of appealability.

(9TH CIR. R. 22-1(d)) (emphasis added). Failure to comply with the Circuit Rule's procedure is a ground for denying the request, which we do here. United States v. Christakis, 238 F.3d 1164, 1168 n. 5 (9th Cir.2001).

We review de novo a district court's dismissal of a section 2254 habeas petition based on procedural default. Cockett v. Ray, 333 F.3d 938, 941 (9th Cir.2003). A district court's findings of fact are reviewed for clear error. Killian v. Poole, 282 F.3d 1204, 1207 (9th Cir.2002).

Since Griffin procedurally defaulted the constitutional violation he alleges in his petition, he may not present it in federal habeas proceedings unless he first demonstrates that (1) "cause and prejudice" excuses the default, or (2) the dismissal of his appeal would produce "a miscarriage of justice." Kibler v. Walters, 220 F.3d 1151, 1153 (9th Cir.2000). Griffin does not attribute his default to "cause." We limit our review, therefore, to determining whether the miscarriage of justice exception applies.

To establish a "miscarriage of justice," Griffin must "present evidence of innocence strong enough that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir.1997) (en banc) (emphasis and internal quotations omitted), quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851. To meet this standard, Griffin must first furnish "new reliable evidence ... that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. 851. This evidence must show that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327, 115 S.Ct. 851.

Both parties accept these propositions, but they propose different formulas for ascertaining whether particular exculpatory evidence qualifies as "new reliable evidence" under Schlup. Respondent Johnson contends that Griffin must provide "newly discovered" evidence concerning his alleged mental defect (i.e., evidence uncovered only after trial). The district court agreed, relying on Sistrunk v. Armenakis, No. 96-6279, 1999 WL 717214, (D.Or. Sept.15, 1999), a decision we subsequently vacated. Sistrunk v. Armenakis, 292 F.3d 669 (9th Cir.2002) (en banc). Griffin challenges this test, arguing that Schlup requires only "newly presented evidence" (i.e., evidence that was not before the trial court). He relies on our statement in Majoy v. Roe that "a petitioner must show that, in light of all the evidence, including evidence not presented at trial, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" 296 F.3d 770, 776 (9th Cir.2002) (emphasis added), quoting Schlup, 513 U.S. at...