# (HC) Henry v. Burton

> District Court, E.D. California · December 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10057748

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ROBERT HENRY, No. 2:22-cv-0609 KJM DB P
12 Petitioner,
13 v. AMENDED FINDINGS AND
RECOMMENDATIONS
14 ROBERT BURTON,
15 Respondent.
16
17 Petitioner, a state prisoner, proceeds pro se with petition for a writ of habeas corpus
18 pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction for murder entered
19 in 1986 in the Solano County Superior Court.
20 On June 30, 2023, the undersigned issued findings and recommendations which
21 recommended the petition be dismissed without prejudice for lack of jurisdiction. (ECF No. 15.)
22 On September 26, 2023, the presiding district judge declined to adopt the findings and
23 recommendations and referred the matter back to the undersigned for further consideration. (ECF
24 No. 18.) Consistent with that order, the undersigned issues these amended findings and
25 recommendations. For the reasons set forth below, the petition should be dismissed.
26 I. Background
27 In 1986, a jury convicted petitioner of first-degree murder on theories of aiding and
28 abetting and transferred intent. (ECF No. 13-5 at 226.) The jury found true special allegations that
1 petitioner was armed with a firearm during the offenses and carried out the murder intentionally
2 and for financial gain. (Id.) The trial court sentenced petitioner to life imprisonment without the
3 possibility of parole. (Id.)
4 In 1988, the state appellate court affirmed the judgment. (ECF No. 13-3 at Ex. 1.)
5 Petitioner sought review in the California Supreme Court, which denied his petition for review
6 and denied a petition for writ of habeas corpus. (Id. at Exs. 2 & 3.)
7 In 1994, petitioner filed a federal habeas petition in this court (“prior federal petition” or
8 “prior federal proceeding”). See Henry v. Marshall, No. CIV S-94-0916 JKS EFB P, 2010 WL
9 2179896 (E.D. Cal. May 27, 2010). As construed by the court, the prior federal petition presented
10 four claims:
11 Henry advances four claims. First, he argues the evidence presented
at the trial of Brewer, subsequent to his own trial, resulted in an
12 inconsistent verdict, entitling him to a new trial. Second, Henry
asserts that his Fifth Amendment rights were violated by the
13 prosecutor when the prosecutor pointed out at trial that Henry had
not denied involvement in his statement to the police and procured a
14 jury instruction on adoptive admissions from silence in the face of
accusations. Next, he contends that there was insufficient evidence
15 to prove that he hired Brewer to kill Turner, rather than just to assault
him. Finally, Henry submits that he was prejudiced when the
16 prosecutor misstated the evidence.
17 Henry v. Marshall, No. CIV S-94-0916 JKS EFB P, 2010 WL 2179896, ECF No. 102 at 4.
18 Following remand from the Ninth Circuit, see Henry v. Marshall, 224 F. App’x 635, 637
19 (9th Cir. 2007), this court held an evidentiary hearing in April of 2009 to address whether
20 petitioner had a freestanding claim of actual innocence and whether newly discovered evidence
21 suggested that his claim was credible. See Henry v. Marshall, No. CIV S-94-0916 JKS EFB P,
22 2010 WL 2179896 (E.D. Cal. May 27, 2010), ECF Nos. 171, 172, 178. The assigned magistrate
23 judge found “petitioner’s newly discovered evidence is not credible and… petitioner has not met
24 his burden of affirmatively proving that he is probably innocent,” and recommended that the prior
25 federal petition be denied. Id., ECF No. 194. The assigned district judge adopted the findings and
26 recommendations in full. Id., ECF No. 199. The Ninth Circuit denied petitioner’s request for a
27 certificate of appealability. Id., ECF No. 205.
28 ////
1 In January 2013, petitioner filed a habeas petition in the Solano County Superior Court,
2 claiming new evidence discovered in the 2009 evidentiary hearing held by this court supports that
3 Brewer intentionally shot and killed Johnson for his own motives, such that he was innocent of
4 the murder based on transferred intent. (ECF No. 13-4 at 234–35.) The state court denied the
5 claim as untimely and for failing to state a prima facie case for relief. (Id.) Petitioner subsequently
6 filed a second habeas petition before the same court in October 2016, which the court denied as
7 successive. (Id. at 236–38.)
8 In October 2017, petitioner filed a third state habeas petition, restating his prior claims and
9 arguing he is also entitled to relief under recently amended California Penal Code section 1473
10 regarding newly discovered evidence. (ECF No. 13-4 at Ex. 4.) The state court issued an order to
11 show cause addressing petitioner’s claims and ordered an evidentiary hearing.1 (Id. at 264-65,
12 331-32.) The state court denied habeas relief, finding that most of the evidence was not new and
13 not credible. (Id. at 540-43.) “The enhanced audio tape of the interview of Jeffrey Taggert is new
14 evidence, but does not substantially alter the substance of his original trial testimony implicating
15 Petitioner and his role in the death of Andre Johnson.” (Id. at 542.)
16 ////
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1 In an order filed after the hearing, the state court summarized the following regarding the
18 evidence submitted at the hearing:
19 At the evidentiary hearing, Petitioner presented testimony from
Jeffrey Taggart and took the stand himself to testify. Additionally,
20 Petitioner submitted the former testimony of Pamela Conyers and
Charles Austin from the trial of Francis Lee Brewer, excerpts of the
21 testimony of Francis Lee Brewer from Petitioner’s 2009 Federal
Court hearing, transcript notes of Detective Bawart’s interview of
22 Jeffrey Taggert, portions of the testimony of Detective Bawart and
the People’s closing arguments from his own trial, and an enhanced
23 audio recording of the same interview between Detective Bawart and
Jeffrey Taggert in support his claim. The Respondent submitted two
24 photographs of autos connected with the subject incident, a cassette
tape of an interview between Detective Bawart and Petitioner at the
25 time of arrest, and full transcripts of testimony of Francis Lee Brewer
and Petitioner from the same 2009 Federal hearing. Both Petitioner
26 and Respondent further agreed that the transcripts from Petitioner’s
1986 jury trial could be considered in its entirety by the Court.
27

28 (ECF No. 13-4 at 540-41.)
1 In 2020, petitioner filed a state habeas petition in the California Court of Appeal. (ECF
2 No. 13-5 at Exs. 5 & 6.) The state appellate court denied relief. (ECF No. 13-5 at 226-49); In re
3 Robert Henry, No. A160596, 2021 WL 4451345 (Cal. Ct. App. Sept. 29, 2021). Petitioner also
4 filed a state habeas petition in the California Supreme Court, which the court denied. (ECF No.
5 13-5 at Exs. 7 & 8.)
6 Petitioner filed the habeas petition presently before the court on April 4, 2022. (ECF No.
7 1.) Respondent filed an answer. (ECF No. 13.) Petitioner filed a traverse. (ECF No. 14.)
8 On June 30, 2023, the undersigned issued findings and recommendations determining that
9 petitioner was required to seek and obtain authorization from the Ninth Circuit before filing this
10 second or successive petition, but failed to do so, such that this court lacks jurisdiction. (ECF No.
11 15.) Petitioner filed objections to the findings and recommendations, arguing he is bringing a new
12 claim or claims that could have not been brought in his prior petition. (ECF No. 16.) The
13 presiding district judge declined to adopt the findings and recommendations filed on June 30,
14 2023, finding they did not address what claims petitioner brings in the current habeas petition and
15 did not explain why those claims were or could have been adjudicated on the merits in the prior
16 petition. (ECF No. 18.) Consistent with the instructions from the presiding district judge, the
17 undersigned issues these amended findings and recommendations.
18 II. Legal Standard
19 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes strict
20 requirements on when state prisoners can bring second or successive petitions to challenge being
21 in custody under a state court judgment. See 28 U.S.C. §§ 2244(b), 2254(a); Burton v. Stewart,
22 549 U.S. 147, 152-53 (2007) (per curiam). A petitioner must obtain an order from the court of
23 appeals authorizing a second or successive habeas petition before filing the petition in the district
24 court. See 28 U.S.C. § 2244(b)(3)(A); Magwood v. Patterson, 561 U.S. 320, 330–31 (2010).
25 Although AEDPA does not specify what constitutes a “second or successive” petition, the
26 federal courts have held that a petition is “second or successive” if it raises claims that were or
27 could have been adjudicated on their merits in an earlier petition. See Cooper v. Calderon, 274
28 F.3d 1270, 1273 (9th Cir. 2001). In addition, “[A] claim ‘is successive if the basic thrust or
1 gravamen of the legal claim is the same, regardless of whether the basic claim is supported by
2 new and different legal arguments ... [or] proved by different factual allegations.’” Hooper v.
3 Shinn, 56 F.4th 627, 633 (9th Cir. 2022) (internal citations omitted). A disposition is “on the
4 merits” if the district court either considers and rejects the claim or determines that the underlying
5 claim will not be considered by a federal court. Cooper, 274 F.3d at 1273.
6 In addition, the Ninth Circuit has explained as follows:
7 It is now understood that a federal habeas petition is second or
successive if the facts underlying the claim occurred by the time of
8 the initial petition, Panetti v. Quarterman, 551 U.S. 930, 945, (2007),
and if the petition challenges the same state court judgment as the
9 initial petition, Magwood v. Patterson, 561 U.S. 320, 333 (2010)
[….] Stating the second criterion in the converse, a petition is not
10 second or successive if it is based on an intervening state court
judgment—e.g., a new sentencing determination—notwithstanding
11 that the same claim challenging a conviction (or even the new
sentence) could have been brought in the first petition. See
12 Magwood, 561 U.S. at 331-36. Nor is a petition second or successive
if the factual predicate for the claim accrued only after the time of
13 the initial petition. United States v. Buenrostro, 638 F.3d 720, 725-
26 (9th Cir. 2011) (per curiam).
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15 Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (citation and explanatory parenthetical
16 omitted).
17 Without an order from the court of appeals, the district court does not have jurisdiction to
18 consider a second or successive habeas petition. Burton, 549 U.S. at 152; Ybarra v. Filson, 869
19 F.3d 1016, 1022 (9th Cir. 2017). “Even if a petitioner can demonstrate that he qualifies for one of
20 [the exceptions listed in 28 U.S.C. § 2244(b)(2) under which a second or successive petition can
21 proceed], he must seek authorization from the court of appeals before filing his new petition with
22 the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008).
23 III. Analysis
24 Petitioner’s first federal habeas petition, filed in 1994, challenged his custody pursuant to
25 the 1986 state court judgment. After an evidentiary hearing, the district court denied the petition
26 on the merits. See Henry, No. 2:94-cv-00916-JKS-EFB, 2010 WL 2179896 (E.D. Cal. May 27,
27 2010), ECF No. 199. Petitioner’s current federal habeas petition, filed in 2022, contests the same
28 state court judgment through six grounds for relief. As set forth below, the six grounds presented
1 in the present federal petition were or could have been adjudicated on the merits in the prior
2 proceeding in this court, within the meaning of the AEDPA. See Cooper, 274 F.3d at 1273;
3 Brown, 889 F.3d at 67l.
4 A. Ground One
5 In ground one of the present petition, petitioner asserts newly discovered evidence
6 establishes he is factually innocent of first-degree murder in the murder of Andre Johnson. (ECF
7 No. 1 at 18.) In this ground, petitioner alleges he is actually innocent of the murder based on an
8 enhanced audio recording of the police interview of Jeffrey Taggert. (Id.)
9 Petitioner already presented an actual innocence claim based on newly discovered
10 evidence in the prior federal proceeding which was adjudicated on the merits. In the prior federal
11 proceeding, petitioner asserted he was actually innocent based on newly discovered evidence,
12 claiming specifically “Brewer did not shoot and kill Johnson, but [instead] Oden, the passenger in
13 Brewer’s car, did.” See Henry v. Marshall, No. CIV S-94-0916 JKS EFB P, 2010 WL 2179896
14 (E.D. Cal. May 27, 2010), ECF No. 194 at 7.
15 Petitioner’s present claim of actual innocence has the same “basic thrust or gravamen” as
16 his prior claim: that he is actually innocent of the crime of conviction based on newly discovered
17 evidence. That the present petition asserts different alleged newly discovered evidence is
18 irrelevant. See Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (“[W]e will not consider
19 new factual grounds in support of the same legal claim that was previously presented.”); see also
20 Morales v. Ornoski, 439 F.3d 529, 532 (9th Cir. 2006). “A claim is not newly presented merely
21 because the petitioner offers new factual bases in support of a legal claim that has already been
22 raised.” Cooper v. Brown, 510 F.3d 870, 918 (9th Cir. 2007).2
23 ////
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2 Even if petitioner’s claim of actual innocence based on newly discovered evidence had not
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already been adjudicated on the merits in the prior federal petition, the present petition would still
be successive based on inclusion of the claim. A federal habeas petition is second or successive if
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the facts underlying the claim occurred by the time of the initial petition and the petition
27 challenges the same state court judgment as the initial petition, even if the facts underlying the
claim were unknown at the time of the initial petition and discovered later through new evidence.
28 See Brown, 889 F.3d at 667 & 672-73.
1 Petitioner must obtain an order from the court of appeals authorizing a second or
2 successive habeas petition in order to bring a petition containing this claim. See 28 U.S.C. §
3 2244(b).
4 B. Ground Two
5 In Ground Two of the present petition, petitioner asserts the prosecutor committed a
6 violation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory
7 evidence. (ECF No. 1 at 33.) Specifically, petitioner asserts the prosecutor failed to produce the
8 enhanced version of the audio-taped interview and improperly allowed Jeffrey Taggert and
9 Detective Bawart to testify without mentioning Jeffrey’s statement that Brewer told him Johnson
10 had a gun. (Id.)
11 This claim was not adjudicated in the prior federal proceeding, but it could have been, at
12 least within the meaning of AEDPA’s second or successive gatekeeping requirements.
13 [A] factual predicate accrues at the time the constitutional claim
ripens—i.e., when the constitutional violation occurs. See Panetti,
14 551 U.S. at 945; Magwood, 561 U.S. at 335 n.11. In the case of a
Brady claim, the violation occurs at the time the State should have
15 disclosed the exculpatory evidence—i.e., before trial. If the factual
predicate accrues before a petitioner brings an initial federal habeas
16 petition, then any subsequent federal petition raising a claim based
on that factual predicate is second or successive[.]
17
18 Brown, 889 F.3d at 672-73 (footnote omitted).
19 Petitioner’s Brady claim was ripe at the time of his prior federal petition because the
20 alleged constitutional violation occurred before his trial began. See Brown, 889 F.3d at 674.
21 Petitioner must obtain an order from the court of appeals authorizing a second or successive
22 habeas petition in order to bring a petition containing this claim. See id. at 668 (“Brady claims are
23 subject to AEDPA’s second or successive gatekeeping requirements because the ‘factual
24 predicate existed at the time of the first habeas petition.’”) (quoting Gage v. Chappell, 793 F.3d
25 1159, 1165 (9th Cir. 2015)).
26 C. Grounds Three, Four, Five, and Six
27 The factual predicates for the constitutional violations alleged in petitioner’s grounds
28 three, four, five, and six of the present federal petition accrued during trial and were ripe when
1 petitioner brought his prior federal petition. In Ground Three, petitioner asserts the enhanced
2 audio has revealed that false evidence was admitted at his trial and the jury instruction on
3 adoptive admissions violated his Fourteenth Amendment rights. (ECF No. 1 at 37.) In Ground
4 Four, petitioner asserts the prosecutor committed misconduct during closing argument in arguing
5 that petitioner hired Brewer to kill Turner because instead, as demonstrated by the enhanced
6 audio recording, Brewer killed Johnson for his own reasons. (Id. at 42.) In Ground Five,
7 petitioner asserts the doctrine of transferred intent did not apply to his case and the prosecutor
8 misinterpreted the law to the jury. (Id. at 43.) In Ground Six, petitioner asserts trial counsel
9 rendered ineffective assistance of counsel. (Id. at 45.)
10 These claims were ripe at the time of the prior federal petition even to the extent petitioner
11 had not discovered their factual predicates. See Brown, 889 F.3d at 673 n.8 (distinguishing
12 between unripe and unknown in the context of second and successive habeas petitions); Gage,
13 793 F.3d at 1165 (same). These claims could have been adjudicated in the prior federal
14 proceeding, at least within the meaning of AEDPA’s second or successive gatekeeping
15 requirements. See Brown, 889 F.3d at 672-73.
16 IV. Conclusion and Recommendation
17 For the reasons set forth above, petitioner was required to seek and obtain authorization
18 from the Ninth Circuit before filing this petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner did
19 not do so. Absent such authorization, the current federal petition must be dismissed without
20 prejudice.
21 In accordance with the above, IT IS HEREBY RECOMMENDED that the petition be
22 dismissed without prejudice for lack of jurisdiction.
23 These findings and recommendations are submitted to the United States District Judge
24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days
25 after being served with these findings and recommendations, any party may file written
26 objections with the court and serve a copy on all parties. The document should be captioned
27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
28 shall be served on all parties and filed with the court within seven (7) days after service of the
1 | objections. Failure to file objections within the specified time may waive the right to appeal the
2 | District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. □□□□□ 951
3 | F.2d 1153 (9th Cir. 1991). In the objections, the party may address whether a certificate of
4 | appealability should issue in the event an appeal of the judgment in this case is filed. See Rule 11,
5 | Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability
6 | when it enters a final order adverse to the applicant).
7 || Dated: December 12, 2023
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10 J senso. su SED Eine AG
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10057748. Public record. Not legal advice.