United States District Court, D. Arizona
ROSLYN O. SILVER, Senior District Judge.
For approximately twenty-five years, Petitioner Geary Wayne Walton has been attempting to overturn his 1988 convictions for various sex offenses. In this case, Petitioner has again failed to establish he is entitled to any relief. Therefore, the well-reasoned and exhaustive Report and Recommendation ("R&R") issued by Magistrate Judge Steven P. Logan will be adopted in full and the petition for writ of habeas corpus will be denied and dismissed with prejudice.
I. Standard for Review of R&R
A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). Where any party has filed timely objections to an R&R, the district court's review of the part objected to must be de novo. Id. The district court need not, however, review those portions of an R&R to which no one objects. See United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003).
II. Factual Background
The R&R recounts the facts surrounding Petitioner's trial and his many subsequent attacks on his convictions. Petitioner does not directly object to the vast majority of those facts. Rather, Petitioner's objections focus on the legal conclusions to be drawn from the facts. Thus, the factual background recounted in the R&R will be accepted and there is no need to recount that background again.
Petitioner has three claims he wishes to pursue: 1) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); 2) trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984) for failing to undertake a reasonable pretrial investigation that would have unearthed exculpatory evidence; and 3) a freestanding claim of actual innocence under Herrera v. Collins, 506 U.S. 390 (1993). Because Petitioner is presenting these claims in a second-or-successive petition, he faces unique barriers in having this Court reach the merits of his claims. 28 U.S.C. § 2244(b). The Magistrate Judge concluded Petitioner could not overcome those barriers and recommended the petition be dismissed with prejudice. Petitioner objects, arguing the Magistrate Judge erred at every relevant step. Having reviewed the matter de novo, the Magistrate Judge was correct. But even assuming the Magistrate Judge erred in some respects, there is no plausible way to conclude Petitioner is entitled to continue to pursue his claims.
A. AEDPA Standard
The starting point is determining what Petitioner must show to have his claims heard on their merits. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), claims asserted in a second-or-successive petition that were "presented in a prior [petition] shall be dismissed." 28 U.S.C. § 2244(b)(1). And even those claims "not presented in a prior [petition]" must be dismissed unless they meet one of two exceptions. First, the claims can be heard if they rely "on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2244(b)(2)(A). (Petitioner does not claim this provision has any application to his case.) Or second, the claims can be heard if "the factual predicate for the claim[s] could not have been discovered previously through the exercise of due diligence" and "the facts underlying the claim[s], if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B).
This difficult standard would seem to apply to all of Petitioner's claims. But Petitioner is also asserting a claim of actual innocence which further complicates the matter. Asserting a claim of actual innocence often allows a federal court to reach the merits of claims it could not otherwise reach. See, e.g., House v. Bell, 547 U.S. 518, 536 (2006) (actual innocence may allow federal court to consider defaulted claims). The "actual innocence" exception, however, only applies when the petitioner establishes "in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Id. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The Ninth Circuit has not yet addressed whether the "actual innocence" exception or the standard set forth in AEDPA applies when a court is assessing claims in a second-or-successive habeas petition. See Jones v. Ryan, 733 F.3d 825, 841 n.5 (9th Cir. 2013). A recent opinion from the Supreme Court, however, indicates that, for second-or-successive habeas petitions, the standard in AEDPA is the only relevant standard.
In McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the Supreme Court addressed whether the statute of limitations in AEDPA could "be overcome by a convincing showing that [the petitioner] committed no crime." Id. at 1928. The Supreme Court concluded actual innocence could act to overcome the "expiration of the statute of limitations." Id. In reaching this conclusion, the Supreme Court addressed the argument that AEDPA's statute of limitations was not subject to an "actual innocence" exception because the limitations on second-or-successive petitions established "Congress knew how to incorporate the [actual innocence exception into AEDPA] when it was so minded." Id. at 1933. The Supreme Court agreed Congress meant to "incorporate" and " modify " the actual innocence exception "with respect to second-or-successive petitions." Id. at 1934. That is, second-or-successive petitions making an actual innocence claim must "meet a higher level of proof" and "satisfy a diligence requirement" not applicable to first petitions. Id. at 1933. However, the fact that Congress modified the actual innocence exception with respect to second-or-successive petitions did not prevent the unmodified actual innocence exception from applying to first petitions and their applicable statute of limitations.
In light of McQuiggen, the AEDPA standard is the only relevant standard for second-or-successive petitions. Therefore, Petitioner's arguments that his "actual innocence" claim somehow excuses him from the AEDPA standard for second-or-successive petitions are not persuasive. (Doc. 143 at 15). To have his constitutional claims heard on their ...