Morrison v. Peterson
| Decision Date | 15 December 2015 |
| Docket Number | No. 13–15675.,13–15675. |
| Citation | 809 F.3d 1059 |
| Parties | Curtis Lee MORRISON, Plaintiff–Appellant, v. Mark PETERSON, Defendant–Appellee, The Attorney General of the State of California, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joshua S. Lipshutz (argued), Gibson Dunn & Crutcher, San Franciso, CA, for Plaintiff–Appellant.
Christopher B. Whitman (argued), Deputy County Counsel, Sharon L. Anderson, County Counsel, County of Contra Costa, Martinez, CA, for Defendant–Appellee.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Gregory A. Ott and Michael Chamberlain, Deputy Attorneys General, State of California, San Francisco, CA, for Intervenor.
Appeal from the United States District Court for the Northern District of California, Lucy H. Koh, District Judge, Presiding. D.C. No. 5:11–cv–01896–LHK.
Before: DIARMUID F. O'SCANNLAIN and MILAN D. SMITH, Jr., Circuit Judges, and BRIAN M. MORRIS,* District Judge.
Prisoner Curtis Lee Morrison made two unsuccessful motions in California State court for post-conviction DNA testing under California Penal Code § 1405. He then brought this action, seeking relief under 42 U.S.C. § 1983. The district court dismissed the action on the merits.
On appeal, the court appointed pro bono counsel, who provided valuable assistance to Morrison and the court. Morrison pursues a facial challenge to two provisions of the statute, and an as-applied challenge to a third. We reject those challenges, and affirm the decision of the district court.
We previously summarized the facts of Morrison's underlying conviction as follows:
Morrison v. Estelle, 981 F.2d 425, 426–27 (9th Cir.1992).
At his trial, Morrison testified to a different version of the facts: that a few seconds after Officer Tarantino arrived, and while Morrison was under his truck, two men arrived on a motorcycle. They asked for directions to Pittsburg, and both Morrison and the officer gave them directions. The two men then started arguing with each other, and the officer asked one of them to come over to the truck. There was a scuffle, and a few seconds later, shots were fired. Morrison had started to come out from under the truck, but scooted back underneath when he heard gunfire. After the two men left, Morrison tried to help the officer, and less than a minute later, another officer arrived and arrested Morrison.
The jury rejected Morrison's account, and convicted him of first-degree murder and related offenses. The California Court of Appeal affirmed. Morrison, 981 F.2d at 427. The California Supreme Court denied Morrison's state habeas petition. Id. The federal district court denied Morrison's federal habeas petition. Id. Our court affirmed that denial. Id. at 429. We denied Morrison's application to file a second or successive habeas corpus petition.
California Penal Code § 1405 provides a mechanism for those convicted of crimes to obtain DNA testing of evidence where such testing is potentially relevant to proving innocence. In 2006, Morrison successfully requested that counsel be appointed to prepare a motion seeking DNA testing pursuant to § 1405. The parties briefed the motion, and the judge read the entire transcript of the trial and heard oral argument. Morrison requested DNA testing of (1) the blood on Officer Tarantino's pants and shoes, (2) the swabs of the handgun taken from Officer Tarantino's pocket, (3) the materials collected from the surface of Officer Tarantino's gun, and (4) the knit hat recovered from the scene. At the hearing, Morrison's counsel also requested testing of the tape on the handgun taken from Officer Tarantino's pocket.
The court concluded that any test results would not raise a reasonable probability of a more favorable verdict because Morrison's story was at odds with every eyewitness account, inconsistent with the physical evidence, and did not "make any sense." Morrison, again represented by counsel, petitioned for a writ of mandate directing the court to grant the motion for testing, which the California Court of Appeal denied after full briefing.
In 2010, Morrison filed a second § 1405 motion, this time pro se. The court denied the motion, holding that Morrison failed to show that the evidence was material to the identification of the perpetrator. Morrison filed another writ petition, which the California Court of Appeal denied.
In 2011, Morrison filed this case, seeking relief under 42 U.S.C. § 1983. The district court dismissed the action on the merits based on District Attorney's Office for Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). The district court held that Morrison's facial challenge to the statute failed because "California provides more generous procedural protections than the Alaska scheme that was found to satisfy due process in Osborne. "
Further, as to Morrison's challenge to the statute "as applied to this plaintiff and or construed in this case by the California Courts" "because no where in Section 1405 does it take into account eye witness testimony that is contradicted by physical evidence and undisputed documents," the district court held that under Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), such claims for review of state court rulings cannot be brought in a federal civil rights action.
This appeal followed. Next, we appointed pro bono counsel for Morrison. We also granted the State of California's opposed motion to intervene. Morrison asks the court to reverse the dismissal and grant his motion for summary judgment, or at least remand for discovery on how § 1405 operates in practice. This court has previously rejected three challenges to § 1405 in unpublished decisions: Turner v. Dumanis, 415 Fed.Appx. 831, 832 (9th Cir.2011), Jackson v. Cooley, 348 Fed.Appx. 245 (9th Cir.2009), and Harrison v. Dumanis, 343 Fed.Appx. 218 (9th Cir.2009). However, no published Ninth Circuit cases have done so.
The dismissal of a complaint for failure to state a claim is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436–37 (9th Cir.1995). The denial of a motion for summary judgment is also reviewed de novo. Lopez–Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir.2014).
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). While a challenger must therefore show that a "law is unconstitutional in all of its applications," Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008), when assessing whether a statute meets this standard, courts consider only applications of the statute in which it actually authorizes or prohibits conduct. City of Los Angeles v. Patel, ––– U.S. ––––, 135 S.Ct. 2443, 2451, 192 L.Ed.2d 435 (2015).
To determine what process, if any, is due, a court must consider the nature of a prisoner's liberty interest in proving innocence even after a fair trial resulted in a conviction. Osborne, 557 U.S. at 67, 129 S.Ct. 2308. California does not dispute that, as in Osborne, Morrison has "a liberty interest in demonstrating his innocence with new evidence under state law." Id. That is because California law provides a right to be released from custody pursuant to a writ of habeas corpus when there is no legal cause for imprisonment. Cal.Penal Code § 1485 ; In re Weber, 11 Cal.3d 703, 114 Cal.Rptr. 429, 523 P.2d 229, 243 (1974).
That "state-created right can, in some circumstances, beget yet other rights to procedures essential to the...
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