Majoy v. Roe

• Decision Date: 11 July 2002
• Docket Number: No. 00-56521.,00-56521.
• Parties: Anthony Joseph MAJOY, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

296 F.3d 770

Anthony Joseph MAJOY, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee.

No. 00-56521.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2002.

Filed July 11, 2002.

COPYRIGHT MATERIAL OMITTED

Verna Wefald, Pasadena, CA, for the petitioner-appellant.

John Yang, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-98-069560-SVW.

Before: PREGERSON, TROTT, Circuit Judges, and FITZGERALD,^* District Judge.

TROTT, Circuit Judge.

Petitioner Majoy stands convicted in California state court of (1) conspiracy to commit murder for financial gain, and (2) two counts of first degree murder for financial gain committed while lying in wait. His appeals and petitions for post-conviction relief in state court failed, and he is serving a life sentence in prison without parole. His petition in federal district court for a writ of habeas corpus, which is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, was dismissed with prejudice as untimely because it did not satisfy the applicable one-year statute of limitation. See 28 U.S.C. § 2244(d). The district court correctly determined that because Majoy filed a state habeas petition with the California Supreme Court on April 15, 1997, eight days before the one-year AEDPA limitation period, running from its enactment on April 24, 1996, would expire, he had eight days after the conclusion of the state habeas proceedings to file a timely federal petition. The California Supreme Court denied his petition on August 27, 1997, meaning that Majoy had to file his federal petition in early September of 1997 in order for it to be timely. However, he did not do so until September of 1998, rendering his petition untimely, unless saved by some other provision of law.

The district court rejected Majoy's claims that AEDPA's one-year statute of limitation did not bar his petition. Among his rejected theories were: (1) that state-created impediments extended the deadline, see § 2244(d)(1)(B); (2) that Majoy did not discover the factual basis for his claims until a date that would have made his petition timely, see § 2244(d)(1)(D); and (3) that equitable tolling based on extraordinary circumstances beyond Majoy's control should be applied to excuse his late filing. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998), overruled on other grounds, Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999).

Majoy argued also, "last but not least," that the "actual innocence gateway" of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), was available to him to overcome his untimeliness. Respondent Roe did not respond to this argument, and neither the magistrate judge in his Report and Recommendation, to which Majoy objected, nor the district court in its final order adopting that report, mentioned this issue. We granted a certificate of appealability with respect to (1) whether the district court properly dismissed appellant's petition as untimely, and (2) whether appellant is entitled to equitable tolling of the statute of limitation, referencing 28 U.S.C. § 2253(c)(3) and § 2244(d). Respondent Roe argues that this certificate is not broad enough to encompass the Schlup issue; we construe the certificate to include it. See 28 U.S.C. § 2253.

I

The particularly ugly facts surrounding this conspiracy and double parricide need not be recounted in excruciating detail. Suffice it to say that two avaricious and ungrateful sons, Neil and Stewart Woodman, engaged the deadly services of accomplished killers to eliminate their parents on September 25, 1985 in order (1) to gain an advantage in a nasty business feud fueled by sibling rivalry, and (2) to collect on their mother's $500,000 insurance policy. Majoy's alleged role in this sordid scheme was to assist the hired killers, Steven and Robert Homick, before and during the homicides by (1) providing his accomplices with information about the victims' whereabouts, and (2) acting as a lookout on Yom Kippur, the day of the attack.

At the core of Majoy's eleven claims is the fact that his conviction rests in large measure on the testimony of an accomplice, Michael Dominguez, who, in exchange for a lesser sentence and a representation that he was "not the shooter," originally told the police that Majoy participated in the planning phase of the conspiracy and then the murders themselves. Dominguez so testified and was cross-examined at Majoy's preliminary hearing, but the trouble for the prosecution started when Dominguez flatly refused to testify at Majoy's trial. As a consequence, the trial judge determined at the prosecution's urging that Dominguez was "unavailable" as a witness, and Dominguez's preliminary hearing testimony — bolstered by portions of a videotaped interview Dominguez had with the police — was introduced in evidence at trial. This evidence furnished the foundation for Majoy's conviction.

After Majoy's trial, one of the Woodman brothers, Stewart, cut a deal with the prosecution and confessed his guilt. In the course of telling the authorities everything he knew about the murders, he said that Steven Homick had told him who was at the crime scene but did not name Majoy. Majoy used this newly-discovered evidence in an unsuccessful attempt to secure a new trial. The California Court of Appeal supported the denial of Majoy's request for a new trial on the grounds that the evidence was hearsay and did not, by omission of his name, exonerate the petitioner. California v. Majoy, No. B052619, slip op. at 61 (Cal.Ct.App. Jan. 27, 1997). Undeterred, Majoy continues to point to this omission as evidence that he was not involved and is innocent.

The prosecution's problems continued to escalate. After Majoy was sentenced, Dominguez, a self-confessed murderer, arsonist, and robber, wrote letters to two Superior Court judges alleging that he had falsely implicated Majoy in the conspiracy as a facilitator and a lookout, and that he had done so because of police prompting and coercion. This complication intensified: during the second trial of Neil Woodman and the Homick brothers, Dominguez took the stand and announced that he lied repeatedly to the police and in the transcripts used to convict Majoy.

Through much of this piecemeal process, the prosecution maintained, on the basis of Dominguez's original testimony, that Majoy was the black-clad "Ninja" lookout observed by a neutral bystander witness, Roger Backman, fleeing the scene of the crime after the killings. The California Court of Appeal described Backman's testimony as follows:

Between 10:00 and 11:00 p.m., Roger Backman was visiting his mother in the apartment building next door to where the Woodmans lived. He heard five gunshots: two in rapid succession followed by a pause, and then three more in quick succession. Mr. Backman ran out to the balcony area. He looked down to the walkway which ran between the buildings. He then heard noises in some bushes which sounded like someone coming in his direction and someone else running in the opposite direction.

Mr. Backman next saw a person come out of the bushes from the next building, and run along bushes which were next to a brick wall. The person came over the top of the wall and landed on the walkway of Mr. Backman's mother's building. Mr. Backman still heard other rustling noises in the bushes, moving in the direction of the street, suggesting to him that someone else was going in that direction.

When the man jumped the wall, Mr. Backman yelled down to him. The man stopped for a few seconds in a crouched position, and looked up. Mr. Backman could observe that the man was dressed in black from head to toe, including a black hood. Mr. Backman observed that the hood had eye openings and was secured around the neck. He did not believe that it was a sweatshirt-type hood. For the two or three seconds Mr. Backman observed the man, all he could see were the eyes. Before the man took off running north in the alley, Mr. Backman looked at the person's hands, but did not see any gun.

The California Court of Appeal, encouraged to do so by the attorney general, treated this evidence as independent corroboration of Dominguez's testimony inculpating Majoy:

Finally, independent corroboration, no matter how slight in value it might appear to be when standing alone, implicated appellant in the conspiracy and murders. Dominguez described appellant as wearing a black-hooded sweatshirt on the night of the murders. Roger Backman testified that the figure who ran from where the Woodmans had been murdered was wearing a black hood, although he did not describe it as a sweatshirt.

However, in the second trial of Neil Woodman, Roger Backman identified — or described — the "Ninja" in such a way arguably as not only to exclude the middle-aged Majoy, but to implicate the youthful Dominguez as the Ninja lookout.

This pivotal moment occurred when defense counsel showed Backman a series of photographs marked as People's Exhibit No. 2 which contained a photograph of petitioner Majoy, marked as "E", and a photograph of Dominguez, marked as "F". Counsel showed the photograph to Backman in an attempt to identify the wall-jumping "Ninja."

Q [By Defense Counsel] — When you reviewed these series of photographs in the past, it was your — you would agree that the person marked in F [Dominguez] is the one that most closely resembled the person that you saw down in the walkway on the night in question?

A [By Backman] The most logically, Yes, would be F.

Q Well,...