Olsen v. Key

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2025
• Docket: 24-2230
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTOPHER WILLIAM OLSEN, No. 24-2230 D.C. No. Petitioner - Appellant, 3:19-cv-06111-BHS v. MEMORANDUM* JAMES KEY,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted March 25, 2025 Seattle, Washington

Before: McKEOWN and OWENS, Circuit Judges, and KENDALL, District Judge.**

Christopher William Olsen appeals from the district court’s denial of his

second amended habeas petition challenging his conviction for first-degree murder.

As the parties are familiar with the facts, we do not recount them here. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

1. The district court granted a certificate of appealability only as to “Olsen’s

arguments about the reliability of Bryant Ward’s recantation” after trial. Olsen

contends that, given the recantation, there was insufficient evidence to establish

that he was not acting in self-defense when he shot Robert Ward. Under

Washington law, in a first-degree murder case, “the prosecution bears the burden

of proving beyond a reasonable doubt the absence of self-defense.” State v.

McCullum, 656 P.2d 1064, 1070 (Wash. 1983) (en banc). And “the Due Process

Clause protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364 (1970).

However, Jackson v. Virginia, 443 U.S. 307 (1979), constrains our scope of

review on a sufficiency-of-the-evidence challenge to “the evidence adduced at a

state trial.” Herrera v. Collins, 506 U.S. 390, 401 (1993). Our review “does not

extend to nonrecord evidence, including newly discovered evidence” such as the

post-trial recantation here. Id. at 402. And to the extent Olsen brings an actual

innocence claim, even assuming such a claim is cognizable, the bar for relief is

“extraordinarily high.” Id. at 417; see also United States v. Ovsepian, 113 F.4th

1193, 1201 n.2 (9th Cir. 2024) (“We have not resolved whether a freestanding

actual innocence claim is cognizable in a federal habeas corpus proceeding in the

2 24-2230 non-capital context, although we have assumed that such a claim is viable.”

(citation omitted)). Given other evidence contradicting Olsen’s account of the

shooting, the recantation “falls short of affirmatively proving that [Olsen] more

likely than not is innocent.” Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997)

(en banc). Thus, the recantation does not provide a basis for habeas relief.

2. Olsen brings several claims not within the district court’s certificate of

appealability, including ineffective assistance of trial and appellate counsel, error

as to the jury instructions, and unlawful suppression of evidence under Brady v.

Maryland, 373 U.S. 83 (1963). We may expand the certificate of appealability

where a petitioner shows an uncertified issue is “debatable among jurists of

reason.” Atkins v. Bean, 122 F.4th 760, 766 (9th Cir. 2024) (citation omitted).

Here, we expand the certificate of appealability only as to Olsen’s claim that the

prosecution suppressed evidence of a plea deal with Bryant Ward in violation of

Brady.

Failure to disclose a promise of leniency may qualify as a Brady violation.

Giglio v. United States, 405 U.S. 150, 154-55 (1972). A petitioner must

“demonstrate the existence of an agreement whereby the [S]tate offered [a witness]

leniency in sentencing in the criminal case pending against him in exchange for his

testimony against [the petitioner].” Williams v. Woodford, 384 F.3d 567, 597 (9th

Cir. 2004).

3 24-2230 The Washington Supreme Court concluded that Olsen “d[id] not show

beyond speculation that any such deal[] existed before . . . Bryant Ward testified.”

Bryant Ward’s “subjective belief that he might receive lenient treatment in

exchange for testifying” does not alone evince an actual deal. Hovey v. Ayers, 458

F.3d 892, 917 (9th Cir. 2006). And despite the “suspicious synchronicity” of

events, including Bryant Ward’s receipt of a below-guidelines sentence four days

after Olsen’s sentencing, other evidence indicates that the prosecution considered

Bryant Ward’s testimony in recommending a lenient sentence but did not offer

leniency in exchange for his testimony. Boyde v. Brown, 404 F.3d 1159, 1164-65

(9th Cir. 2005). Given this record, Olsen has not rebutted by clear and convincing

evidence our presumption that the Washington Supreme Court correctly concluded

that he did not show the existence of an agreement between Bryant Ward and the

prosecution. See 28 U.S.C. § 2254(e)(1). Thus, the Washington Supreme Court’s

determination was not “contrary to . . . clearly established Federal law,” nor did it

“involve[] an unreasonable application of” such law as required for habeas relief.

28 U.S.C. § 2254(d)(1).

AFFIRMED.

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