U.S. v. Lopez, 07-35389.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFisher
Citation577 F.3d 1053
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gabriele Elizabeth LOPEZ, aka Gabriele Elizabeth Koenig, Nee Konig, Defendant-Appellant.
Docket NumberNo. 07-35389.,07-35389.
Decision Date18 August 2009
577 F.3d 1053
UNITED STATES of America, Plaintiff-Appellee,
Gabriele Elizabeth LOPEZ, aka Gabriele Elizabeth Koenig, Nee Konig, Defendant-Appellant.
No. 07-35389.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 8, 2008.
Filed August 18, 2009.

[577 F.3d 1055]

James A. McDevitt, United States Attorney; Stephanie Whitaker (argued), Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Beth Mary Bollinger, Spokane, WA, for the defendant-appellant.

Tarik Adlai, Pasadena, CA, for amici curiae National Association of Criminal Defense Attorneys and the Federal Public Defender for the Central District of California.

Appeal from the United States District Court for the Eastern District of Washington, Justin L. Quackenbush, District Judge, Presiding. D.C. Nos. CV-05-00084-JLQ, CR-02-00127-JLQ.



We previously granted Defendant-Appellant Gabrielle Elizabeth Lopez's Petition for Rehearing. The opinion filed July 16, 2008 and amended July 29, 2008, see United States v. Lopez, 534 F.3d 1027 (9th Cir.2008), is withdrawn. A superseding opinion will be filed concurrently with this order. Further petitions for rehearing or petitions for rehearing en banc may be filed. Defendant-Appellant's petition for rehearing en banc, filed August 13, 2008, is denied as moot.


FISHER, Circuit Judge:

Gabriele Lopez, a.k.a. Gabriele Koenig ("Lopez"), filed a federal habeas corpus motion in the district court seeking to vacate her drug conviction because the government withheld until long after her trial potentially damaging credibility information about one of the government's principal witnesses, in violation of the government's disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).1 The district court rejected the government's argument that the court lacked jurisdiction to hear the motion because it was barred by 28 U.S.C. § 2255(h) as "second or successive" and denied the motion on its merits.2 The appeal in this case thus presents a troublesome circumstance involving the interplay between the government's failure to make a timely disclosure of Brady information and the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. §§ 2244, 2255, which, in the interest of finality, impose significant

577 F.3d 1056

burdens on defendants who try to raise new claims in "second or successive" habeas petitions.3

In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2853-54, 168 L.Ed.2d 662 (2007), a capital case, the Supreme Court held that competency-to-be-executed claims based on Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), were exempt from AEDPA's "second or successive" requirements. Noting that "Ford-based incompetency claims, as a general matter, are not ripe until after the time has run to file a first federal habeas petition," the Court concluded that "Congress did not intend the provisions of AEDPA addressing `second or successive' petitions to govern a filing in the unusual posture presented" in a case where a second-in-time habeas petition raises a "Ford-based incompetency claim filed as soon as that claim is ripe." Panetti, 127 S.Ct. at 2852-53. The Court identified three considerations that supported its conclusion: (1) the implications for habeas practice of reading "second or successive" literally for such claims, (2) whether barring such claims would advance the policies behind AEDPA's passage and (3) the Court's pre- and post-AEDPA habeas jurisprudence, including the common law abuse-of-the-writ doctrine.

As we shall explain more fully, although the Court's reasoning in Panetti is potentially applicable to other types of habeas claims, we do not believe Panetti can be read to support a construction of AEDPA that expands federal courts' pre-AEDPA ability to reach the merits of claims presented in second-in-time habeas petitions. Lopez has not demonstrated the evidence the government failed to disclose is material to her guilt or innocence, see United States v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (explaining petitioner must establish suppressed evidence's materiality to guilt or innocence to prevail on Brady claim), so her second-in-time claim would have been barred under the pre-AEDPA abuse-of-the-writ doctrine. Accordingly, we reject Lopez's and amici's argument that Panetti supports exempting her second-in-time Brady claim from § 2255(h)'s gatekeeping provisions, which expressly address in § 2255(h)(1) the circumstances under which courts may entertain "second or successive" claims based on "newly discovered evidence." We decline to resolve the more difficult question whether federal courts have jurisdiction to consider a subset of meritorious Brady claims that federal courts would have considered on the merits under the pre-AEDPA abuse-of-the-writ doctrine but that would be barred under a literal reading of "second or successive" in § 2255(h)(1).

Lopez's claim as presented was subject to § 2255(h)(1)'s gatekeeping requirements, so she was required to obtain permission from the court of appeals before filing her § 2255 motion in district court. Because she failed to obtain our permission, the district court did not have jurisdiction to reach the merits of her Brady claim. Even if we construe Lopez's appeal as a belated request to us for authorization to file her motion, we would deny certification because the newly discovered evidence would not be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found her guilty of the offense. See § 2255(h)(1). We also conclude the government's conduct, albeit troublesome, was not "so grossly shocking and so outrageous as to violate the universal sense of justice,"

577 F.3d 1057

United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991) (internal quotation marks and citations omitted), that her conviction must be vacated and the indictment dismissed.


Lopez was indicted in May 2002 on several charges of possession of cocaine base with intent to distribute. She was tried together with Elvis Singh and James Evans, with whom she lived in a house in Spokane, Washington. Two informants, David Palmer ("Palmer") — who emerges as the central figure in this appeal — and Janie Arambula ("Arambula"), testified on behalf of the government.

Palmer testified about an occasion on April 9, 2002, when he went to the defendants' house in Spokane to buy crack cocaine with two other participants. The jury heard Palmer's recorded conversations with these participants regarding their drug purchase inside the house. Palmer testified that he did not see Lopez on that occasion and had never met her at any other time. Defense counsel cross-examined Palmer about a variety of issues, such as whether he had used or presently used drugs and the payment for his work as an informant.

During the trial, a case agent testified that he had taken Palmer's Drug Enforcement Administration ("DEA") file to the United States Attorney's Office and that Assistant United States Attorney Tom Rice ("Rice") had spoken with Agent Shelby Smith ("Agent Smith") of the local DEA. The case agent further testified that Rice had written a note to one of the government's trial attorneys that there was no Brady material in the file. Frank Cikutovich, counsel for one of the co-defendants, told the court he was concerned about whether the government had disclosed all Brady material about Palmer and requested that the court review Palmer's file for Brady material. The court declined, saying it was the responsibility of the United States Attorney's Office, not the court, to do so.

As Lopez learned several years later, on June 6, 2002 — two months before her trial — Lieutenant Chandler Bailey ("Lt. Bailey") of the Spokane Police Department Drug Task Force had called Agent Smith to tell him that the City and County of Spokane would no longer be using Palmer as a confidential source in controlled drug buys because he was "unreliable." Lt. Bailey had learned that Palmer had been sexually involved with at least one woman who was the subject of a drug investigation conducted by the Spokane Police Department, that some officers believed Palmer had used investigative funds to buy services from prostitutes and that Palmer usually sought out women when he chose his own targets for investigation. Although Lt. Bailey had prepared a memorandum discussing the allegations that Palmer was "unreliable" (the "Bailey memorandum"), he had not sent a copy to Agent Smith and the memorandum was not in the file at the time Rice inspected it. There is no evidence that Agent Smith relayed the information from the conversation he had with Lt. Bailey to Rice or Assistant United States Attorney Earl Hicks, who was then in charge of the prosecution of Lopez and her co-defendants. Nor is there evidence that the government attorneys involved in the cases asked the pertinent government agents whether they had any personal knowledge concerning the credibility of the government witnesses, or any other Brady information, as opposed to merely looking in Palmer's file.

The defense completed its cross-examination of Palmer without being informed that the City and County of Spokane were no longer using Palmer because he was

577 F.3d 1058

considered unreliable. Palmer's testimony did not directly inculpate Lopez in any drug transaction, and at the close of evidence the court instructed the jury that the testimony of an informant should be examined with greater care than the testimony of an unpaid witness.

Another informant, Arambula, testified about a wire-recorded controlled purchase of cocaine base she made on April 18, 2002 from Lopez's co-defendant Singh, in which Lopez participated. This was not the controlled purchase about which Palmer...

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