Smith v. Davis
| Decision Date | 26 June 2020 |
| Docket Number | Case No. 19-cv-08152-SI |
| Parties | TROY SMITH, Plaintiff, v. RONALD DAVIS, Defendant. |
| Court | U.S. District Court — Northern District of California |
Petitioner Troy Smith, an inmate at San Quentin State Prison, is currently serving a 26-year sentence. Petitioner filed the instant motion for leave to proceed with a second habeas petition pursuant to 28 U.S.C. § 2244. Dkt. No. 7 (Mot. to Proceed). The Court hereby DENIES petitioner's motion for failing to satisfy 28 U.S.C. § 2244(b).
Petitioner's case arises from the robbery of Lang's Jewelry Store ("Lang's") near Union Square in San Francisco. Dkt. No. 2 at 13 (Second Petition). Late on Sunday, April 7, 2003, the robbers entered the vacant restaurant next door to Lang's, cut a hole in the wall adjoining the vacant restaurant to Lang's safe room, and entered the safe room. Dkt. No. 11 at 7 (Opp.). When the store employees came in the following morning, two robbers were waiting and forced them to open the store's safes. Id. The robbers tied up the employees and dumped jewelry into bags, ultimately absconding with over four million dollars' worth of Lang's merchandise. Dkt. No. 2 at 13 (Second Petition). During the robbery, the employees also saw a third person in the vacant restaurant through the hole in the wall; they were unable to identify that person. Dkt. No. 11 at 7 (Opp.). An employee identified petitioner's brother, Dino Smith, as one of the robbers. Dkt. No. 7 at 3 (Mot. to Proceed). Dino Smith was convicted by jury trial. Id. Additionally, fingerprint evidence connected George Turner to the robbery. Dkt. No. 11 at 8 (Opp.). Mr. Turner was arrested wearing a watch stolen from Lang's, and his hotel room contained a bag of Lang's jewelry worth over $650,000. Id. He was convicted after taking an Alford plea (See 400 U.S. 25 (1970)). Dkt. No. 7 at 3 (Opp.).
Petitioner was convicted primarily on fingerprint evidence from two items found at the crime scene—a newspaper found in the vacant restaurant and a poster board found in Lang's near the hole cut in the wall. Dkt. No. 7 at 4 (Mot. to Proceed); Dkt. No. 11 at 8 (Opp.). Inspector Daniel Gardner, the lead investigator on the case, asserted he found the poster board on April 7, 2003, and the newspaper on April 9, 2003. Dkt. No. 7 at 4 (Opp.).
Despite his counsel's representation that petitioner would turn himself in, petitioner fled and disappeared for three years, ultimately surrendering in 2006. Dkt. No. 11 at 8 (Opp.). Before the robbery, petitioner made his final payment on his apartment in Oakland. Id. On April 25, 2003, police went to petitioner's apartment and found it completely emptied and freshly cleaned. Id. In the garage of petitioner's apartment, police encountered a man with "cleaning supplies, men's clothing, and a box of correspondence in petitioner's name"; they also found earrings stolen from Lang's in the man's car. Id. at 8-9. The man claimed he received the earrings from Debbie Warner, the girlfriend of petitioner's brother, Dino Smith. Id. at 9. Later, police found petitioner's wallet and a box of petitioner's correspondence at Ms. Warner's apartment. Id.
Petitioner was charged with four counts of second-degree robbery with excessive taking, four counts of false imprisonment, two counts of second-degree burglary, one count of conspiracy, and an enhancement for possession of a firearm. Dkt. No. 2 at 1-2 (Second Petition). On October 20, 2006, he was convicted by a jury trial and found guilty of all counts and enhancements. Id. at 2. Petitioner was sentenced to 26 years in state prison. Id.
II. Procedural Background
On April 12, 2011, petitioner filed his first writ of habeas corpus in the United Stated District Court for the Northern District of California pursuant to 28 U.S.C. § 2254. See Smith v. Swarthout,Case No. 11-cv-01791 SI; Dkt. No. 7 at 2 (Mot. to Proceed). Petitioner initially raised a single issue, arguing his due process rights were denied according to Jackson v. Virginia, 443 U.S. 307 (1979) because the prosecution had failed to prove all necessary elements of robbery for a conviction.1 Dkt. No. 7 at 2 (Mot. to Proceed). While petitioner's federal writ of habeas corpus was pending, his counsel received Brady material from the San Francisco District Attorney's office, about lead investigator Daniel Gardner's past misconduct; this evidence had not been presented at trial. Id.
Subsequently, petitioner requested and received leave from the district court to amend his pending federal habeas petition to include the Brady claim, and to hold the federal habeas petition in abeyance until petitioner exhausted his California state court remedies. Id. On March 12, 2012, petitioner filed his amended petition in San Francisco Superior Court; it was denied on January 14, 2013. Dkt. No. 11 at 6 (Opp.). Subsequently, he filed his petition with the California Court of Appeal; it was summarily denied on March 28, 2013. Id. Petitioner then requested review from the California Supreme Court, which denied review on June 12, 2013. Id.
After petitioner exhausted his state court remedies, he filed his amended habeas petition in this Court on August 16, 2013 (the "first petition"). Dkt. No. 2 at 3 (Second Petition). In this petition, he raised due process claims pursuant to Jackson and Brady. Id. at 4. Regarding the Brady claim, petitioner argued that Inspector Gardner took the newspaper and poster board from petitioner's apartment when he visited petitioner two days after the robbery and planted them at the crime scene. Id. at 3. Furthermore, petitioner argued the Brady evidence suppressed by the prosecution revealed Inspector Gardner's dishonesty, thereby bolstering petitioner's claim that Inspector Gardner planted the newspaper and poster board. Id.
On July 17, 2015, the Court denied the first petition. Dkt. No. 11 at 1-2 (Opp.). The Court granted a certificate of appealability. Id. at 2. Petitioner appealed to the Ninth Circuit, which affirmed the denial on October 21, 2016. Id.
After petitioner's first habeas application was denied, he received a declaration from George Turner, now deceased, who was convicted in the robbery.2 Dkt. No. 7 at 6 (Mot. to Proceed). Mr. Turner's declaration states petitioner was not involved in the robbery and that Deputy District Attorney Jerry Coleman offered Mr. Turner leniency for not testifying on petitioner's behalf. Id. Dkt. No. 7 at 35, 37 (Turner Decl. ISO Mot. to Proceed). It also explains how both Mr. Turner's and petitioner's fingerprints could have ended up on the newspaper and poster board that Inspector Gardner asserted he found at the crime scene, corroborating petitioner's theory that Inspector Gardner planted evidence. Dkt. No. 7 at 35-36 (Turner Decl. ISO Mot. to Proceed). On February 2, 2017, petitioner filed his second habeas petition in state court. He raised two claims, both based on the newly acquired declaration made by Mr. Turner. Dkt. No. 11 at 7 (Opp.). On April 3, 2017, the San Francisco Superior Court denied the petition on its merits. Id. Petitioner appealed to the California Court of Appeal, which summarily denied it on July 13, 2017. Id. The petitioner requested review from the California Supreme Court, which summarily denied review on August 15, 2018. Id.
On May 17, 2019, petitioner requested leave from the Ninth Circuit to file a second or successive federal habeas petition regarding his 2003 conviction. Dkt. No. 11 at 7 (Opp.). The Ninth Circuit granted petitioner leave on November 20, 2019. Id. Petitioner then filed his amended habeas petition with this Court on December 20, 2019 (the "second petition"). Dkt. No. 2 at 8 (Second Petition). On January 13, 2020, the Court requested the parties address whether petitioner satisfied the requirements of 28 U.S.C. § 2254(b) for filing a second or successive habeas petition. Dkt. No. 4 at 2 (Order). That motion is now at issue. Dkt. No. 7 (Mot. to Proceed).
Petitioner's motion to proceed articulates two claims : (1) Mr. Turner's declaration makes petitioner's Brady claim regarding the State's wrongful suppression of Inspector Gardner's misconduct material; and (2) Mr. Coleman's prosecutorial misconduct violated petitioner's Constitutional rights to due process. Dkt. No. 7 at 7 (Mot. to Proceed).
This Court can only review a second or successive habeas petition once the petitioner has obtained leave from the Ninth Circuit. 28 U.S.C. § 2244(b)(3)(A). Once the Ninth Circuit grants leave and the petition is filed, the District Court must make a threshold determination if the petition can proceed based on 28 U.S.C. § 2244 and the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA "greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications." Tyler v. Cain, 533 U.S. 656, 661 (2001). Any claims presented in a second or successive habeas petition that were presented in prior habeas petitions will be dismissed. Id.; 28 U.S.C. § 2244(b)(1).
If the petitioner "asserts a claim that was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions":
Tyler, 533 U.S. at 661-662 (emphasis in original); 28 U.S.C. § 2244(b)(2)(B). Petitioner...
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