Prescott v. Santoro

• Decision Date: 15 November 2022
• Docket Number: 19-17509
• Parties: Earnest L. PRESCOTT, Petitioner-Appellant, v. Kelly SANTORO, Acting Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F.4th 470

Earnest L. PRESCOTT, Petitioner-Appellant,

v.Kelly SANTORO, Acting Warden, Respondent-Appellee.

No. 19-17509

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 17, 2022 San Francisco, California

FILED NOVEMBER 15, 2022

Elizabeth Richardson-Royer (argued), San Francisco, California, for Petitioner-Appellant.

Jill M. Thayer (argued) and Allan Yannow, Deputy Attorney Generals; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Rob Bonta, Attorney General of California; Office of the California Attorney General, San Francisco, California; for Respondent-Appellee.

Before: Jay S. Bybee, Consuelo M. Callahan, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Callahan ;

Concurrence by Judge Collins

OPINION

CALLAHAN, Circuit Judge:

Earnest Prescott was convicted of the murder of James Johnson in 2012. Following his conviction, he filed a petition for writ of habeas corpus in state court arguing that two letters allegedly written by his codefendant, Jason Jones, exonerated Prescott. Prescott asserted, among other things, that (1) the letters established that he was innocent, and (2) his trial attorney provided ineffective assistance of counsel by failing to have the letters authenticated and introduced into evidence.

After the California Court of Appeal summarily denied his petition and the California Supreme Court denied review, Prescott filed a habeas petition in federal court under 28 U.S.C. § 2254. The district court denied the petition, but granted a certificate of appealability on Prescott's actual innocence and ineffective assistance of counsel claims. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I

A

On June 6, 2010, Prescott—who was then 16 years old—was riding in a vehicle with Laquisha Williams, Jones, and several other individuals associated with the "Ghost Town" gang in Oakland.¹ While the car was driving through the territory of a rival group known as the "Acorn" gang, Jones thought he saw an Acorn gang member with whom he had fought while they were both previously incarcerated. The car stopped, and Prescott and Jones exited the vehicle and entered a nearby housing complex in pursuit. They ran into James Johnson—not the gang member that Jones thought he had seen—as Johnson was walking from his home in the housing complex to the store. Johnson was shot multiple times, and Prescott and Jones fled back to their vehicle. Johnson later died from his wounds.

A resident of the housing complex named Mignon Perry witnessed the shooting.

Perry said she made eye contact with the shooter, whom she described to police as an African American male between the ages of 16 and 18 years old, 6 feet and 1 inch tall, wearing a white T-shirt and blue jeans, and carrying a silver handgun. Perry, who was acquainted with Williams, later heard that Williams may have been involved in the incident and looked up her MySpace page online. On the MySpace page, Perry saw a picture of Williams together with Prescott and recognized Prescott as the shooter.

Williams initially told police that she had seen Prescott return to the vehicle with a gun that matched Perry's description of the weapon, though at trial she recanted that statement. Police ultimately found the gun in the possession of another individual named Nickie Donald while investigating a different shooting. Prescott was listed as a contact in Donald's phone.

While awaiting trial, Prescott temporarily escaped from the juvenile facility where he was being detained. After his escape, law enforcement officers found two handwritten notes in his cell in which he admitted to "taking a human being life," and asked for forgiveness and a not guilty verdict.

Prescott and Jones were tried together for Johnson's death in 2012. A jury found Prescott guilty of murder and discharging a firearm causing death. The court subsequently sentenced Prescott to an aggregate term of 50 years to life, consisting of two consecutive terms of 25 years to life, one for the murder and one for the firearm enhancement.² Jones was acquitted.

The California Court of Appeal affirmed Prescott's conviction on direct appeal, Prescott , 2015 WL 1736223, at *10, and the California Supreme Court denied Prescott's petition for review.³

B

Concurrently with his direct appeal, Prescott filed a habeas petition in state court. The habeas petition largely focused on the two letters allegedly written by Jones that Prescott claims absolve him of the shooting but were not introduced at trial.

The first of these was an unsigned letter dated September 19, 2011. Prescott's girlfriend faxed a copy of the letter to Prescott's trial counsel, John Plaine, on September 28, 2011. Prescott told Plaine that his girlfriend had received it from Jones. In the letter, the author apologized for accusing Prescott of being the shooter and claimed that he felt pressured to accuse Prescott out of fear for his family's safety. The author asserted that an individual named Nick (nicknamed "Poony") was the actual shooter. This is apparently a reference to Nickie Donald, as the letter states that Nick is the same person who was later found in possession of the murder weapon. The author stated that he was willing to testify on Prescott's behalf. Because Jones told police during his initial interview that Prescott was the shooter, the letter's apology for naming Prescott as the shooter is consistent with Prescott's belief that Jones authored the letter.

Prescott gave Plaine a second handwritten letter on May 8, 2012, the day the trial court heard pretrial motions and the day before the parties began voir dire in Prescott and Jones's joint trial. This letter was dated January 25, 2012, and identified Jones as the author. The letter stated that Jones wanted to "come clean" and confess to shooting Johnson.

Plaine was unsure how to proceed after receiving the letters. Because the letters each identified a different shooter, Plaine was unsure what probative value these inconsistent statements would have. Plaine also feared that disclosing the letters would mean that Jones and Prescott would no longer be detained together, which Plaine thought would cut off Prescott's ability to learn more about Jones's trial strategy and pass that information along to Plaine.

Plaine also had concerns about how to get the letters admitted into evidence. At that point, Plaine did not know whether Jones would testify, and because Prescott repeatedly refused to testify, Plaine could not authenticate and introduce the letter through Prescott's testimony. Plaine reached out to a retired handwriting expert the public defender's office had worked with in the past, David DeGarmo, and asked him to assess whether Jones was the author of the two letters. After reviewing numerous samples of Jones's handwriting, DeGarmo was unable to say whether the September 19, 2011, and January 25, 2012, letters were written by Jones. After speaking with DeGarmo, Plaine later recalled that he had "no reason to think that further investigation would be useful," and he did not attempt to introduce the letters.

In support of his habeas petition, Prescott also submitted various other documents. One of these was a declaration from another attorney opining that Plaine failed to adequately investigate whether the letters were genuine and that Plaine's hope to introduce them through the testimony of either Prescott or Jones "was not a justifiable tactical decision." Prescott also obtained a declaration from another handwriting expert who opined that it was "highly probable" that Jones wrote the prior letters. Prescott's new expert further questioned whether DeGarmo applied the appropriate methodology and whether DeGarmo was adequately trained on modern handwriting analysis and techniques at the time he analyzed the letters.

Additionally, Prescott submitted a declaration from Jones dated January 8, 2014—well after Jones had been acquitted—which stated that Jones had committed the shooting and had written the letters. Finally, Prescott submitted his own declaration stating that he was innocent of the shooting.

The California Court of Appeal summarily denied Prescott's habeas petition, and the California Supreme Court denied Prescott's petition for review.

C

In 2016, Prescott filed a federal habeas petition under 28 U.S.C. § 2254 asserting that: (1) Prescott's due process rights were violated by Plaine's failure to introduce Jones's letters, which "establish Prescott's actual innocence"; and (2) Plaine provided ineffective assistance by failing to investigate and authenticate the letters.⁴

The district court denied the petition. See Prescott v. Santoro , No. 5:16-CV-01359, 2019 WL 6771826 (N.D. Cal. Dec. 12, 2019). Regarding Prescott's first claim, there was some confusion as to what Prescott's actual argument was. The district court found that Prescott had "disclaim[ed] bringing a freestanding actual innocence claim." Id. at *5. The court instead interpreted Prescott's argument to be that he had submitted enough new evidence with his state habeas petition to establish a prima facie case for relief, and that therefore the state court had unreasonably applied California law by failing to order the State to show cause as to why the petition should not be granted. See People v. Duvall , 9 Cal. 4th 464, 474–75, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) (explaining procedures governing habeas petitions under California law). The district court denied the claim because it was not based on federal law as required by 28 U.S.C. § 2254.

On Prescott's second claim, the district court held that the state court reasonably rejected the ineffective assistance of counsel claim. The district court found that "there was considerable evidence that Mr. DeGarmo was well qualified to analyze the letters, and it was not unreasonable for the state court to reach that conclusion," citing the...