and Submitted January 12, 2018 Seattle, Washington
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
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.
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.
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
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.
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.
TALLMAN, CIRCUIT JUDGE
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.
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
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.Id. at 1172.
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