Maxwell v. Roe

• Decision Date: 30 November 2010
• Docket Number: No. 06-56093,06-56093
• Citation: 628 F.3d 486
• Parties: Bobby Joe MAXWELL, Petitioner-Appellant, v. Ernie ROE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

628 F.3d 486 Bobby Joe MAXWELL, Petitioner-Appellant, v. Ernie ROE, Respondent-Appellee. No. 06-56093. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 7, 2009. Filed Nov. 30, 2010.

Verna Wefald, Pasadena, CA, for plaintiff-appellant Bobby Joe Maxwell.

Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Jaime L. Fuster, Deputy Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Los Angeles, CA, for respondent-appellee Ernie Roe, Warden.

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding. D.C. No. CV-02-09555-JVS(FMO).

Before: HARRY PREGERSON and RICHARD A. PAEZ, Circuit Judges, and JAMES C. MAHAN, District Judge.^*

OPINION

PAEZ, Circuit Judge:

Bobby Joe Maxwell was arrested in April 1979 and charged with murdering ten men in downtown Los Angeles, California. The media dubbed the murders for which Maxwell was charged the "Skid Row Stabber" killings. The prosecution's best physical evidence linking Maxwell to any of the crime scenes was a palm print on a public bench found near the body of one of the victims. The bench, however, was located in an area Maxwell frequented, and the prosecution was unable to isolate the age of the print. Lacking solid physical evidence, the prosecution rested its case on the testimony of jailhouse informant Sidney Storch. Storch testified that while he and Maxwell shared a cell, Maxwell confessed. Maxwell maintained that he was innocent and that Storch was lying throughout the nine month trial. The jury ultimately convicted Maxwell of two of the ten counts of first degree murder and one count of robbery. Maxwell was sentenced to life in prison without the possibility of parole. In exchange for his testimony at Maxwell's trial, Storch was released from custody one year and eight months early.

Maxwell appeals the district court's denial of his habeas petition. Maxwell's appeal and petition are governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). He raises two critical issues on appeal. First, he alleges that he was convicted on the basis of false material testimony by the prosecution's key informant witness, Sidney Storch, in violation of his due process rights. Second, he contends that the prosecution withheld material information concerning the deal that Storch received in exchange for his testimony and Storch's prior informant history in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).¹ Pursuant to 28 U.S.C. § 1291,we have jurisdiction over this timely appeal. We reverse in part and affirm in part.

I. Factual Background

David Martin Jones was fatally stabbed on November 9, 1978, as he bedded down at night at the Los Angeles downtown public library. Shortly before Jones was stabbed, a man approached three homeless men, all friends of Jones's, who were also spending the night outside the library. The prosecution contended that this man was Jones's killer. The three homeless men would later testify that the alleged killer was a large black man, who said in a soft, low voice that his name was Luther and he was from Puerto Rico. One witness said he had a Spanish or Caribbean accent and another said he did not. One of the witnesses, Thomas Jones, later testified that he looked at the killer's face in the darkness for about half a minute, and all three described the killer's gait as unusual and slow. After speaking with the three witnesses, the man walked away from the three homeless men toward where Jones lay. Shortly thereafter Jones shouted that he had been stabbed. The three men ran to Jones, who was gasping and blood soaked. When Thomas Jones asked Jones who stabbed him, Jones replied, "The guy that just left."

Frank Garcia's body was discovered on a park bench at the Los Angeles City Hall Mall on Thanksgiving morning, November 28, 1978. His empty wallet lay beside his body on the park bench. Garcia had been stabbed 20 times. Roughly three months later, in early January 1979, graffiti was found on a restroom wall of the Greyhound Bus Station which said: "My name is Luther, I kill wino's to put them out of their misery."

In April 1979, Maxwell was arrested. A knife consistent in size with Jones's stab wound and Garcia's stab wounds was found on Maxwell's person as was a Bic cigarette lighter. Police seized a sweatshirt, a cap, tennis shoes, and a log book from Maxwell's sister's home. On the log book Maxwell had written "Satan, praise be unto you."

At a lineup where Maxwell was instructed to say "my name is Luther," none of the three homeless men who saw Jones's alleged murderer identified Maxwell. In fact, one witness said, "you've got everyone up there that doesn't look like him." At the preliminary hearing six months later, however, Thomas Jones heard Maxwell speak in court, and at that time he identified Maxwell's voice as that of the killer.² One of the other witnesses, upon seeing Maxwell at the preliminary hearing, wrote the prosecutor a letter in which he said, "I sure hope you have the right guy, because if you do, he sure did change a lot in the last six months." As for the knife, Maxwell's sister testified that Maxwell frequently carried a knife, and a friend of Maxwell's testified that he once saw Maxwell with a knife but that "generally, people in that neighborhood always carry knives."

Muddy shoeprints were found near Garcia's body, and the prosecution's expert concluded that the prints were consistent with a pair of Maxwell's shoes and with measurements made of his stride. A defense expert examined the muddy shoeprintsand concluded that the prints were too indistinct to show anything and it was impossible to make a gait comparison without knowing the speed of the person who left the prints. Garcia's wife testified that the Bic lighter looked like one Garcia had, but she was not shown the lighter in a lineup. Garcia's stepson was unable to identify the lighter in a lineup of similar lighters, and two police detectives said there was nothing unusual about the lighter to distinguish it from any other Bic lighter. Blood samples and cigarette butts from the Jones crime scene could not be linked to Maxwell.

II. Procedural History

Maxwell's trial began in January 1984 and lasted nine months. At trial, Storch testified that he shared a cell with Maxwell in 1983 for about three weeks.³ According to Storch, one day while sitting together in their cell, Maxwell read a newspaper article about the Skid Row Stabber case, which mentioned that a palm print had been found on a public bench near one of the crime scenes. Upon reading this article, Storch testified, Maxwell confessed that he had made a "mistake" by not wearing gloves. Specifically, Storch testified on direct examination:

Earlier in the evening there was a newspaper article that had [Maxwell's] name in it that was passed down from another cell.... [Maxwell] pointed to one particular description in the article ... he told me that in this particular instance that the police had said they found a palmprint of his in an area near one of the people he was accused of having harmed. He felt that he wasn't prone to that kind of mistake[ ], that he didn't make that kind of mistake because he wore gloves with the fingers cut off so as to keep his hands warm and leave his fingers free....

The prosecution argued during closing arguments that Storch's testimony proved that Maxwell had admitted responsibility for each of the ten murders and that he was the Skid Row Stabber.

After the lengthy trial, the jury returned a verdict of guilty on two counts of murder and one count of robbery. Maxwell was found not guilty on three counts of murder and the jury was unable to reach a verdict on five counts of murder and three counts of robbery. The jury also found true two special circumstance allegations, namely multiple murder and murder committed while engaged in a robbery of the victim. The trial court sentenced Maxwell to life imprisonment without the possibility of parole on both counts of conviction with the sentences to run concurrently.

Maxwell appealed his convictions and sentence to the California Court of Appeal. In March 1991, the California Court of Appeal affirmed the trial court's judgment in full and shortly thereafter denied Maxwell's petition for rehearing. Maxwell then filed a petition for review with the California Supreme Court, which the court denied in June 1991.

In October 1991, Maxwell filed a habeas corpus petition in Los Angeles SuperiorCourt, which was subsequently denied in August 1993. In October 1995, Maxwell filed a habeas corpus petition in the California Supreme Court. In May 1996, the California Supreme Court issued an order to show cause, returnable to the Los Angeles County Superior Court, on the issue of whether Maxwell was entitled to relief based on the allegation that jailhouse informant Sidney Storch gave false testimony at trial.

The Los Angeles County Superior Court held an evidentiary hearing on the question of whether Storch gave false testimony. That hearing extended over two years, from August 1997 to November 1999. In February 2000, the Superior Court issued a 34-page written ruling in which it concluded that while Storch might have proceeded to become an established liar and sophisticated jailhouse informant, Storch had not lied at Maxwell's trial.

On April 20, 2001, Maxwell filed a second habeas corpus petition in the California Supreme Court, which the court denied on December 19, 2001. One Justice dissented from denial, writing that she was "of the opinion an order to show cause should issue."

On December 16, 2002, Maxwell filed a petition for writ of habeas corpus in federal district court. The district court concluded that Maxwell's delay in filing his second habeas petition in the California...