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Earp v. Davis

United States Court of Appeals, Ninth Circuit

February 6, 2018

Ricky Lee Earp, Petitioner-Appellant,
v.
Ron Davis, Warden of California State Prison at San Quentin, Respondent-Appellee.

          Argued and Submitted January 12, 2018 Seattle, Washington

         Appeal from the United States District Court for the Central District of California D.C. No. 2:00-cv-06508-MMM Margaret M. Morrow, District Judge, Presiding

          Robert S. Gerstein (argued), Santa Monica, California; Statia Peakheart, Los Angeles, California; Emily J.M. Groendyke, Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          James William Bilderback II (argued), Supervising Deputy Attorney General; A. Scott Hayward, Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Jerome Farris, Richard C. Tallman, and N. Randy Smith, Circuit Judges.

          SUMMARY[*]

         Habeas Corpus

         The panel affirmed the district court's order on remand denying on the merits California state prisoner Ricky Earp's remaining habeas corpus claims that the state court improperly denied his motion for a new trial based on prosecutorial misconduct.

         Earp contended that he should have been allowed to conduct further discovery to explore a possible relationship between those responsible for the California Department of Justice's alleged spoliation of DNA evidence and alleged witness intimidation; and that the district court improperly weighed and did not credit the defense witnesses' testimony, notwithstanding an adverse inference given to Earp for the limited purpose of assessing the witnesses' credibility at the evidentiary hearing.

         The panel held that the district court correctly found that any link between spoliated evidence established by the adverse inference (even if true) and the alleged witness intimidation was too attenuated, and did not abuse its discretion in declining to authorize further discovery in light of that finding. The panel held that the district court did not clearly err in weighing the credibility of the evidence in light of the evidence adduced at the hearing.

          OPINION

          TALLMAN, CIRCUIT JUDGE

         California state prisoner Ricky Earp appeals the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition. In his petition, Earp claims that the California state court improperly denied his motion for a new trial based on the State's prosecutorial misconduct. This case comes to us for the third time on appeal.

         In 1992, Earp was sentenced to death after a Los Angeles County jury convicted him for the 1988 first-degree murder and rape of an 18-month-old girl. Earp filed a motion for a new trial, arguing that a newly discovered witness, Michael Taylor, would impeach Dennis Morgan's trial testimony that Morgan had never been to the scene on the day of the crime. However, the government presented evidence that Taylor recanted this impeaching statement. Consequently, the trial court denied Earp's motion for a new trial without conducting an evidentiary hearing. The California Supreme Court affirmed on direct appeal. People v. Earp, 978 P.2d 15, 56 (Cal. 1999). Following an unsuccessful state habeas petition, Earp then filed a federal habeas petition. Earp v. Ornoski, 431 F.3d 1158, 1169 (9th Cir. 2005) ("Earp I"). The district court denied the petition and adopted the state court's factual findings, holding that "Taylor's declarations were 'inherently untrustworthy and not worthy of belief.'" Id.

         On subsequent appeal, our panel determined that because the state court had made its credibility determination without an evidentiary hearing, the state court had made its decision based on an unreasonable determination of the facts. Id. We similarly held that the district court erred when it "reached its credibility determination without taking the opportunity to listen to Taylor, test his story, and gauge his demeanor." Id. Determining that Earp may have presented a colorable due process claim, we then remanded the case to the district court for a hearing to determine the credibility of the parties' witnesses concerning the alleged prosecutorial misconduct.[1]Id. at 1172.

         In 2011, while Earp's federal habeas petition was on remand, Earp moved in state court for DNA testing of napkin and pillow swatches recovered at the crime scene. Earp hoped the testing would produce evidence that Morgan had visited the scene, as Taylor would testify he heard Morgan admit. The state court granted the motion, but the laboratory could not perform the test because it discovered that some of the evidence was missing. On habeas review, Earp then sought further discovery from the federal district court to explore a possible relationship between the disappearance of the evidence and those involved in the alleged prosecutorial misconduct. Instead, the district court assumed without ...


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