Johnson v. Knowles

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 2, 2008
• Docket: 07-15221
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LAMERLE R. JOHNSON,  No. 07-15221 Petitioner-Appellant, v.  D.C. No. CV-02-05309-JSW MIKE KNOWLES, Warden, OPINION Respondent-Appellee.  Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted May 12, 2008—San Francisco, California

Filed September 2, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain

12037 JOHNSON v. KNOWLES 12039

COUNSEL

Mark D. Eibert, Half Moon Bay, California, argued the cause for the petitioner-appellant and filed briefs.

Peggy S. Ruffra, Supervising Deputy Attorney General of the State of California, San Francisco, California, argued the 12040 JOHNSON v. KNOWLES cause for the respondent-appellant and filed a brief; Edmund G. Brown, Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, and Gregory A. Ott, Deputy Attorney General, San Francisco, California, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a claim of miscarriage of justice excuses an untimely filed habeas petition where the petitioner does not allege actual innocence.

I

A

LaMerle R. Johnson was charged in California state court with kidnap for ransom, robbery, assault with a deadly weapon, and use of a firearm. While incarcerated and await- ing trial, he learned of a murder plot between two fellow inmates. Johnson informed the authorities of his discovery and thereafter entered into a plea agreement that he would tes- tify against the individuals involved in the plot in exchange for pleading guilty to the charges and serving a sentence of just over 17-and-a-half years’ imprisonment.

Pursuant to the plea agreement, Johnson testified against both of the individuals involved in the murder plot at their preliminary hearings. Thereafter, one of the plotters went to trial, and Johnson also testified during these proceedings. Although the exact chronology is unclear, Johnson alleges that “law enforcement officers” employed at the jail where he was being housed during the trial threatened to kill him if he JOHNSON v. KNOWLES 12041 continued testifying for the state. Johnson asserts the officers beat him and threatened to place him in a cell with the plot- ting individuals and to ensure that he was labeled a snitch when he ultimately went to prison.

As a result of such threats, Johnson recanted his trial testi- mony. The prosecutor learned of the threats against Johnson, however, and he convinced Johnson to explain in open court what happened to him and why he had changed his testimony. Johnson also reaffirmed his initial trial testimony, and the trial court ordered that he be moved to a different jail.

After these events, the defense attorney representing the plotter on trial moved to strike Johnson’s trial testimony as unreliable. The prosecutor objected, explaining that “the sys- tem failed [Johnson] ultimately, because I’m responsible for any witness’ safety ultimately. And the fault is mine; not his.” The trial court denied the motion and allowed the jury to con- sider Johnson’s testimony. Ultimately, the trial ended with a hung jury.

After the trial, the prosecutor moved to rescind Johnson’s plea agreement because Johnson committed perjury when he recanted his trial testimony. Following advice of counsel, Johnson did not oppose the prosecutor’s motion. Thereafter, Johnson learned that his own attorney had previously repre- sented the second plotting individual against whom Johnson had testified only at the preliminary hearing. Johnson was ultimately tried and convicted and sentenced to life-plus-11- years’ imprisonment.

B

In November 2002, Johnson filed a pro se federal habeas petition, primarily challenging the revocation of his plea agreement and asserting ineffective assistance of counsel. The State moved to dismiss such petition as untimely under the Anti-Terrorism Effective Death Penalty Act’s (“AEDPA”) 12042 JOHNSON v. KNOWLES one-year statute of limitations, 28 U.S.C. § 2244(d)(1)(A). The district court granted the motion, finding Johnson’s peti- tion was filed more than three years after the limitations period had run. The district court further held that statutory tolling and equitable tolling did not apply.

In his first appeal to this court, Johnson conceded that he failed to comply with AEDPA’s one-year limitations period, but he argued that the district court erred in concluding that tolling does not apply. In a memorandum disposition, we affirmed the district court as to equitable tolling, but we con- cluded the record was unclear regarding whether statutory tolling was calculated correctly, and we remanded to the dis- trict court for further proceedings. Johnson v. Knowles, 116 Fed. Appx. 822, 823-24 (9th Cir. 2004).

On remand, Johnson filed a supplemental brief in which he conceded that he was not entitled to statutory tolling. Never- theless, he argued that his untimeliness should be excused under the miscarriage of justice exception. Specifically, he argued that the State’s revocation of the plea agreement after he had testified at his peril and his own attorney’s conflict of interest resulted in his being unfairly held in prison longer than he should have been. The district court disagreed and again dismissed the petition as untimely.

Johnson filed a timely notice of appeal and request for cer- tificate of appealability (“COA”), which the district court denied. Thereafter, we granted a COA solely on the issue of whether the miscarriage of justice exception applies here, and we sua sponte appointed counsel for Johnson.

II

[1] The parties agree that Schlup v. Delo, 513 U.S. 298 (1995), governs the miscarriage of justice exception. In Sch- lup, a capital habeas case, the petitioner argued a miscarriage of justice would occur if the court failed to reach the merits JOHNSON v. KNOWLES 12043 of his otherwise defaulted ineffective assistance of counsel and Brady claims in light of newly discovered evidence dem- onstrating his actual innocence. See id. at 307-09. Initially, the Supreme Court noted the difference between this type of claim and pure factual innocence claims, like those presented in Herrera v. Collins, 506 U.S. 390 (1993), where the peti- tioner alleged innocence in spite of being afforded “entirely fair and error free” proceedings. Schlup, 513 U.S. at 313-14. Herrera claims are constitutional claims in and of themselves. Id. at 315. Schlup claims, on the other hand (sometimes referred to as procedural innocence claims), are not them- selves constitutional claims, “but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’ ” Id. (quoting Herrera, 506 U.S. at 404).

[2] In order to pass through the Schlup gateway, the peti- tioner must establish that his case “falls within the narrow class of cases . . . implicating a fundamental miscarriage of justice.” Id. at 314-15 (internal quotation marks omitted). Tracing the history of its jurisprudence on this issue, the Court noted that it has “explicitly tied the miscarriage of jus- tice exception to the petitioner’s innocence.” Id. at 321 (emphasis added). The Court further explained:

Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a mis- carriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of inno- cence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless con- stitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims. 12044 JOHNSON v. KNOWLES Id. at 316. Thus, in defining the standard of proof required to assert the miscarriage of justice exception, the Court instructed that the “petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327.

[3] More recently, the Supreme Court reiterated that the Schlup standard is designed to “ensure[ ] that petitioner’s case is truly extraordinary, while still providing petitioner a mean- ingful avenue by which to avoid manifest injustice.” House v. Bell, 547 U.S. 518, 537 (2006) (internal quotation marks omitted). Again, the Court explained:

In the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of defaulted claims. Yet a petition supported by a convincing Schlup gateway showing “raise[s] sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result of the trial with- out the assurance that that trial was untainted by con- stitutional error”; hence, “a review of the merits of the constitutional claims” is justified.

Id. (quoting Schlup, 513 U.S. at 317).

[4] Following such precedent, we also have limited the application of the miscarriage of justice exception to cases where the petitioner alleges innocence. Cook v. Schriro, 516 F.3d 802, 829 (9th Cir. 2008) (holding that “[t]o qualify for the ‘fundamental miscarriage of justice’ exception to the pro- cedural default rule, . . . [the petitioner] must show that a con- stitutional violation has ‘probably resulted’ in the conviction when he was ‘actually innocent’ of the offense) (internal cita- tions omitted, emphasis added); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc) (holding that to establish a miscarriage of justice exception, the petitioner must show that his case “fall[s] within the narrow class of cases . . . [involving] extraordinary instances when a violation probably JOHNSON v. KNOWLES 12045 has caused the conviction of one innocent of the crime”) (internal quotation marks omitted, emphasis added).

[5] Here, Johnson expressly concedes his guilt. In his sup- plemental brief to the district court, he stated: “San Mateo County did not cause me to kidnap Ellis Foots, I did that and never can undo it . . . . I know that I deserved to come to prison for my actions, and I accept that.” (emphasis added). However, citing Sawyer v. Whitley, 505 U.S. 333 (1992), and Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002), Johnson argues that the miscarriage of justice exception is not limited to cases where the petitioner’s guilt or innocence is called into ques- tion, but applies in any case where the court lacks confidence in the proceedings.

In Sawyer, concurring Justices Stevens, Blackmun, and O’Connor did indicate that “[w]hile the conviction of an inno- cent person may be the archetypal case of a manifest miscar- riage of justice, it is not the only case.” 505 U.S. at 361. But as just discussed, the majority of the Court has not adopted this broader view, nor have any of our sister circuits.1 1 See Moore v. Quarterman, ___ F.3d ___, 2008 WL 2640094, *6 (5th Cir. 2008) (recognizing the miscarriage of justice exception is “narrow” and only applies where the petitioner shows “a constitutional violation has probably resulted in the conviction of one who is actually innocent” (inter- nal quotation marks and citation omitted)); Goldblum v. Klem, 510 F.3d 204, 216 (3d Cir. 2007) (same); Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (“ ‘Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself suffi- cient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.’ ” (quoting Schlup, 513 U.S. at 316)); Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006) (“The miscarriage-of-justice-exception applies when the petitioner can demon- strate that he is actually innocent.”); Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (“[A] petitioner may use his claim of actual innocence as a ‘gateway,’ or means of excusing his procedural default . . . .” ) (citing Schlup, 513 U.S. at 315-17)); Horton v. Allen, 370 F.3d 75, 81 n.3 (1st Cir. 2004) (defining “miscarriage of justice” as “ ‘a constitutional viola- tion that has probably resulted in the conviction of one who is actually 12046 JOHNSON v. KNOWLES Additionally, Johnson misapplies Majoy. There, we stated that “[a] petitioner need not show that he is actually innocent of the crime he was convicted of committing; instead, he must show that a court cannot have confidence in the outcome of the trial.” 296 F.3d at 776 (internal quotation marks omitted). This passage does not stand alone, however. Rather, it comes from our explanation of the Schlup gateway standard of proof. The full passage reads:

Under Schlup, a petitioner’s otherwise-barred claims [may be] considered on the merits . . . if his claim of actual innocence is sufficient to bring him within the narrow class of cases . . . implicating a funda- mental miscarriage of justice. In order to pass through Schlup’s gateway, and have an otherwise barred constitutional claim heard on the merits, a petitioner must show that, in light of all the evi- dence, including evidence not introduced at trial, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reason- able doubt. A petitioner need not show that he is “ac- tually innocent” of the crime he was convicted of committing; instead, he must show that a court can- not have confidence in the outcome of the trial.

Id. (internal quotation marks, citations, footnote omitted; emphasis added).

[6] Thus, in light of Supreme Court precedent, as well as our own, we conclude that the miscarriage of justice excep-

innocent’ ”) (quoting Schlup, 513 U.S. at 327)); Williams v. Bagley 380 F.3d 932, 973 (6th Cir. 2004) (same); Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003) (same); Spears v. Mullin, 343 F.3d 1215, 1255 n.33 (10th Cir. 2003) (noting that a showing that the petitioner is “actually innocent” is required under Schlup); Zeigler v. Crosby, 345 F.3d 1300, 1307-08 (11th Cir. 2003) (per curium) (“To establish a fundamental miscarriage of jus- tice, a petitioner must show a colorable claim for actual innocence.”). JOHNSON v. KNOWLES 12047 tion is limited to those extraordinary cases where the peti- tioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt. Sch- lup, 513 U.S. at 317. A petitioner who asserts only procedural violations without claiming actual innocence fails to meet this standard.2 Therefore, here Johnson’s concession of guilt is fatal to his untimely habeas petition.

AFFIRMED.

2 We do not decide whether the miscarriage of justice exception applies where a defendant claims to be innocent of the conduct upon which an enhanced sentence is based. See, e.g., Spence v. Superintendent, 219 F.3d 162, 172 (2d Cir. 2000) (“Where a petitioner shows by clear and convinc- ing proof that he is actually innocent of the conduct on which his sentence is based, the incarceration is fundamentally unjust and the miscarriage of justice exception to the procedural default bar applies.”); see also Calde- ron v. Thompson, 523 U.S. 538, 559-60 (1998) (holding miscarriage of justice exception applies where petitioner shows “ ‘by clear and convinc- ing evidence’ that no reasonable juror would have found him eligible for the death penalty”). Such issue is not raised in this case.