Michael Lane v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2023
• Docket: 21-15828
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL ROCKY LANE, AKA Michael No. 21-15828 Lane, D.C. No. 2:19-cv-05028-DGC Petitioner-Appellant,

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted April 18, 2023** Phoenix, Arizona

Before: OWENS and BADE, Circuit Judges, and BAKER,*** International Trade Judge.

Michael Lane appeals from the district court’s order dismissing his second

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Page 2 of 6

petition for a writ of habeas corpus challenging his federal criminal conviction. We

have jurisdiction under 28 U.S.C. § 2253, and we review a district court’s

dismissal of a habeas petition as second or successive de novo. Brown v. Muniz,

889 F.3d 661, 666 (9th Cir. 2018).

To avoid dismissal, the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) requires Lane to show “newly discovered evidence that, if

proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would

have found [him] guilty of the offense.” 28 U.S.C. § 2255(h)(1).1 We conclude that

Lane did not meet this heavy burden and affirm the district court’s denial of his

petition.

Lane argues that previously undisclosed evidence from a Northern District

of Texas case, United States v. Gas Pipe, Inc., No. 3:14-cr-00298-M (N.D. Tex.),

undermines the testimony of the government’s expert, Dr. DiBerardino, that each

charged substance underlying Lane’s convictions had “[a] chemical structure . . .

which is substantially similar to the chemical structure of a controlled substance in

schedule I or II.” 21 U.S.C. § 802(32)(A)(i). Because Lane’s asserted Brady2

1 We interpret both AEDPA § 2244(b) and § 2255(h) interchangeably. Brown, 889 F.3d at 668 n.4. 2 Brady material refers to “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. Page 3 of 6

evidence appears in a second habeas petition challenging the same underlying

convictions, the district court correctly determined that § 2255(h)(1) established

Lane’s burden of proof. See Brown, 889 F.3d at 668 (“Brady claims are subject to

AEDPA’s second or successive gatekeeping requirements . . . .” (citation

omitted)). AEDPA therefore “elevates the ‘reasonable probability’ standard for

Brady materiality to a more demanding ‘clear and convincing evidence’ standard.”

Id. at 675 (citation omitted).

Under the applicable clear and convincing evidentiary standard, Lane’s

newly found evidence is insufficient to establish that no reasonable factfinder

would have found him guilty of the charged offenses. The Gas Pipe materials

indicate that subdivisions within the DEA occasionally disagree about whether

certain substances are analogues to schedule I or II drugs. The evidence

specifically references one of several substances charged in Lane’s case, revealing

that there was disagreement regarding whether MDPV was substantially similar in

chemical structure to MDEA.

The trial jury, however, did not find that MDPV was an analogue to MDEA

in Lane’s case; instead, it found that the MDPV possessed by Lane was an

83, 87 (1963). Such evidence must be disclosed by the prosecution. Id. When the prosecution suppresses Brady evidence, the defendant must normally only show “[a] ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Page 4 of 6

analogue to methcathinone. Lane points to no evidence that suggests any internal

disagreement within the DEA about whether MDPV is substantially similar to

methcathinone, instead simply assuming that dissenting opinions must exist about

the comparisons used here. And Lane extends this argument further to suggest that,

because sometimes scientists within the DEA disagree, dissents could exist on

some or all of the substances charged in his case. AEDPA’s “clear and convincing

evidence” standard requires far more than such speculation. See Brown, 889 F.3d

at 675.

Additionally, the newly discovered evidence presents little, if any,

impeachment value. The Gas Pipe materials indicate generally that sometimes

scientists within the DEA disagree about whether substances have similar chemical

structures to each other. This comports with Dr. DiBerardino’s testimony that the

DEA’s scientists sometimes have different opinions. But here, Lane can point to no

disagreement within the DEA as to Dr. DiBerardino’s testimony. Additionally, Dr.

DiBerardino explained why he believed the chemical structures of various

substances underlying Lane’s conviction were similar, citing specific

characteristics about the chemical compounds. Therefore, Lane’s newly discovered

evidence falls short of clearly and convincingly demonstrating that no reasonable

factfinder would accept Dr. DiBerardino’s opinion and find Lane guilty.

Accordingly, Lane’s most recent habeas petition does not satisfy AEDPA. Page 5 of 6

We construe Lane’s uncertified argument that the district court should have

permitted additional discovery and held a new evidentiary hearing as a motion to

expand the Certificate of Appealability (“COA”). See 9th Cir. R. 22-1(e). To

succeed on such a motion, the habeas petitioner must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Hiivala v.

Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (“The required showing for originally

obtaining a COA on a claim remains the standard by which this court reviews the

broadening of a COA.”). “Under the controlling standard, a petitioner must sho[w]

that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (alteration in original) (internal quotation

marks omitted).

The district court did not conduct discovery or an evidentiary hearing

because Lane did not show good cause to do so. See Bracy v. Gramley, 520 U.S.

899, 904 (1997) (requiring a petitioner to show good cause for a judge to allow

discovery in a successive habeas motion). To satisfy the requirement of good

cause, Lane needs to make “specific allegations” that, if fully developed, can

“demonstrate that he is . . . entitled to relief.” Id. at 908–09 (omission in original)

(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Lane’s allegations that new

discovery would uncover DEA dissents concerning the drug comparisons used in Page 6 of 6

his case do not meet this standard, as this evidence—assuming it exists—would not

push his successive habeas motion across the threshold of 28 U.S.C. § 2255(h)(1).

Even if scientists within the DEA disagreed about whether Lane’s drugs were

controlled substance analogues, a reasonable factfinder could still agree with Dr.

DiBerardino’s expert opinion. Any reasonable jurist would agree with the district

court that new discovery or an evidentiary hearing would be pointless. We

therefore decline to expand the COA.

AFFIRMED.