Cooper v. Brown

Volume 1 of 4

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN COOPER, 

Petitioner-Appellant, No. 05-99004

v.

 D.C. No.

CV-04-00656-H

JILL L. BROWN, Warden, California

State Prison at San Quentin, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued and Submitted

January 9, 2007—San Francisco, California

Filed December 4, 2007

Before: Pamela Ann Rymer, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Rymer;

Concurrence by Judge McKeown

15663

COOPER v. BROWN 15667

COUNSEL

Norman C. Hile and Ali Kazemi, Orrick, Herrington & Sut-

cliffe LLP, San Francisco, California, for the petitioner.

Holly D. Wilkens, Deputy Attorney General, State of Califor-

nia, San Diego, for the respondent.

OPINION

RYMER, Circuit Judge:

Kevin Cooper appeals the district court’s denial of his third

federal petition for a writ of habeas corpus. Sitting en banc,

we held that Cooper made out a prima facie case that entitled

him to file a second or successive application; authorized him

to file it; and remanded for the district court to order that two

tests be performed so that “the question of Mr. Cooper’s inno-

cence can be answered once and for all.” Cooper v. Wood-

ford, 358 F.3d 1117, 1124 (9th Cir. 2004). The two tests were

a mitochondrial test of blond hairs found in one of the vic-

tim’s hands, and a test for the presence of the preservative

agent EDTA on a bloody T-shirt that was not part of the pros-

ecution’s case at trial but that Cooper specifically asked, on

appeal, to have tested. On remand, the district court conducted

15668 COOPER v. BROWN

the mitochondrial DNA testing on the hairs and EDTA testing

on the T-shirt. The results do not show Cooper’s innocence.

The court also held extensive evidentiary hearings at which

forty-two witnesses testified with respect to all issues encom-

passed in Cooper’s third application. In a 159-page ruling that

comprehensively addresses each of the claims, then-Chief

United States District Judge Marilyn L. Huff denied the peti-

tion on the merits and, alternatively, on the ground that Coo-

per’s claims in the successive petition are procedurally barred.

Order Denying Successive Petition for Writ of Habeas Corpus

(May 27, 2005) (Order) (attached as Appendix A).

Cooper sought, and we provisionally granted, a Certificate

of Appealability (COA) on whether the district court abused

its discretion by denying discovery, necessary forensic test-

ing, evidentiary hearings, and a request to expand the record;

whether he is entitled to relief on his claims of actual inno-

cence, that the state contaminated or tampered with key evi-

dence, that the state failed to disclose material exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963), and that Josh Ryen’s testimony was unreliable; and

whether he demonstrated multiple constitutional errors with-

out which the jury would have returned a not guilty or non-

capital verdict. We leave the COA in place, but we see no

abuse of discretion in any respect and we agree with, and

adopt, the district court’s analysis on each of the claims.

Accordingly, we affirm.

I

Cooper was convicted of the first-degree murders of Frank-

lyn Douglas Ryen, Peggy Ryen, his wife, Jessica Ryen, their

10-year old daughter, and Christopher Hughes, an 11-year old

neighborhood friend of Joshua Ryen, the Ryen’s 8-year old

son who was brutally assaulted but lived. Following his con-

viction, Cooper was sentenced to death.

COOPER v. BROWN 15669

Cooper escaped from the California Institute for Men

(CIM), a state prison, on Thursday, June 2, 1983, and hid out

in a vacant house (the Lease house) next door to the Ryens’

residence on Thursday night, all day Friday, and Friday night

before the murders on Saturday night, June 4. Using a hatchet

or axe and a knife that came from the Lease house, Cooper

hacked to death Doug, who had 37 separate wounds, Peggy,

who had 32 separate wounds, Jessica, who had 46 wounds

that included carving on her chest, and Christopher, who had

26 wounds. Cooper inflicted chopping wounds to the head,

and stabbing wounds to the throat, of Joshua. Christopher’s

father found the bodies late Sunday morning.

The facts are set out in meticulous detail in the district

court’s order. Order at 15703-32; 15796-810. Suffice it to

summarize here that Cooper admitted staying in the Lease

house; a blood-stained khaki green button identical to buttons

on field jackets issued at the state prison from which Cooper

escaped was found on the rug at the Lease house; tests

revealed the presence of blood in the Leases’ shower and

bathroom sink; hair found in the bathroom sink was consistent

with that of Jessica and Doug Ryen; a hatchet covered with

dried blood and human hair that was found near the Ryens’

home was missing from the Lease house, and the sheath for

the hatchet was found in the bedroom where Cooper had

stayed; Cooper’s semen was found on a blanket in the closet

of the Lease house; one drop of blood (A-41) that belongs to

an African-American male, which Cooper is, was found on

the wall of the Ryen hallway opposite where Jessica was

found and post-trial DNA testing confirms that Cooper is the

source of A-41; plant burrs found inside Jessica’s nightgown

were similar to burrs from vegetation between the Lease

house and the Ryen house, and to burrs found on a blanket

inside the closet where Cooper slept at the Lease house, and

in the Ryen station wagon, which was missing when the

bodies were discovered but turned up, abandoned, in Long

Beach; two partial shoe prints and one nearly complete one

found in or near the Ryens’ house and in the Lease house

15670 COOPER v. BROWN

were consistent both with Cooper’s shoe size and Pro-Keds

Dude tennis shoes issued at CIM that Cooper did not deny

having; a hand-rolled cigarette butt and “Role-Rite” tobacco

provided to inmates at CIM was in the Ryens’ vehicle, and

similar tobacco was in the bedroom of the Lease house; and

a hair fragment found in the Ryen station wagon was consis-

tent with Cooper’s pubic hair. Cooper checked into a hotel in

Tijuana about 4 o’clock on Sunday afternoon.

The district court’s order likewise recounts the procedural

history from Cooper’s February 19, 1985 conviction. Order at

15696-703. In sum: the judgment of conviction and sentence

was affirmed by the California Supreme Court, which

observed that the “sheer volume and consistency of the evi-

dence is overwhelming,” People v. Cooper, 53 Cal.3d 771,

837, 281 Cal.Rptr. 90, 129 (1991), and the United States

Supreme Court denied a petition for certiorari, Cooper v. Cal-

ifornia, 502 U.S. 1016 (1991). Cooper’s first federal petition,

subsequently amended and supplemented, was filed August

11, 1994, and denied August 25, 1997; we affirmed, Cooper

v. Calderon, 255 F.3d 1104 (9th Cir. 2001) (Cooper I); and

his petition for a writ of certiorari was denied, 537 U.S. 861

(2002). Cooper filed a second federal petition on April 20,

1998, which we construed as an application for authorization

to file a second or successive petition and denied. Cooper v.

Calderon, 274 F.3d 1270 (9th Cir. 2001) (Cooper II). He

sought to file another successor petition that involved DNA

testing and tampering, which we denied, Cooper v. Calderon,

No. 99-71430 (9th Cir. Feb. 14, 2003, April 7, 2003) (orders).

Meanwhile, Cooper filed seven petitions in the California

Supreme Court together with a writ of mandate and various

motions, a habeas petition in the San Diego County Superior

Court, and six other petitions for a writ of certiorari in the

United States Supreme Court as well as two petitions for

habeas corpus, each of which was denied. Cooper’s February

2, 2004 petition to the California Supreme Court raised simi-

lar claims to those asserted in this application; that court

denied all claims on the merits on February 5, 2004, and also

COOPER v. BROWN 15671

denied as untimely those having to do with evidence tamper-

ing, failure to disclose exculpatory evidence, submission of

false testimony to the jury, and offering Joshua Ryen’s unreli-

able testimony. On February 6, 2004, Cooper filed another

application to file a successive application, which was ini-

tially denied, Cooper v. Woodford, 357 F.3d 1019 (9th Cir.

2004), withdrawn, 357 F.3d 1054 (Editor’s Note Feb. 8,

2004), but was later granted after this court sua sponte

decided to rehear the application en banc, Cooper v. Wood-

ford, 357 F.3d 1054 (9th Cir. 2004). En banc, we authorized

Cooper’s third habeas petition to be filed, and stayed execu-

tion pending resolution of this application. Cooper, 358 F.3d

at 1124 (Cooper III).

The district court denied the petition and denied Cooper’s

request for a COA. Judgment was entered on May 31, 2005.

When Cooper then filed a request for a COA in this court, we

allowed the appeal to go forward conditioned upon further

consideration once briefing was completed. The state asks

that we withdraw the COA, but we decline to do so. 28 U.S.C.

§ 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-37

(2003). This means that Cooper has leave to assert that even

though the district court allowed the testing that we ordered,

it abused its discretion in how the tests were conducted and

in the scope of the evidentiary hearings that it held; and to

appeal denial of claims one through four (actual innocence,

contamination or tampering with evidence, Brady violations,

and unreliability of Joshua Ryen testimony), and six through

nine (unlawful destruction of bloody coveralls, ineffective

assistance of counsel for failing to present evidence of another

person’s confession, ineffective assistance of counsel in fail-

ing to connect the bloody coveralls to Lee Furrow, ineffective

assistance of counsel in failing to introduce evidence that vic-

tims were clutching hair in their hands, and denial of constitu-

tional rights by cumulative law enforcement errors and

misconduct) of his third petition.

15672 COOPER v. BROWN

II

Standards of review under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) are well-known and are

fully set out in the district court’s order. See Order at 15732-

40. However, the framework for analyzing an actual inno-

cence “gateway” claim under Schlup v. Delo, 513 U.S. 298

(1995), remains unsettled. There is a question whether such a

claim is governed by the Schlup standard itself, or by the

AEDPA conditions for filing a second or successive applica-

tion, 28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii).1 Cf. House v.

Bell, 126 S.Ct. 2064, 2078 (analyzing a first habeas petition

seeking consideration of defaulted claims based on a showing

of actual innocence under Schlup rather than AEDPA). How-

ever, this need not detain us for Cooper fails to meet either

standard.

Beyond this, a district court’s decision to exclude expert

testimony is reviewed for an abuse of discretion. Stilwell v.

Smith & Nephew, Inc., 482 F.3d 1187, 1191 (9th Cir. 2007).

“The trial court has wide discretion in determining whether

1

To make a successful claim under Schlup, “a petitioner must show that

in light of all the evidence, including new evidence, ‘it is more likely than

not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.’ ” Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir.

1997) (en banc).

For authorization to file a second or successive application for habeas

corpus under AEDPA, a petition must show that

(B)(i) the factual predicate for the claim could not have been dis-

covered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light

of the evidence a a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.

28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii). See Cooper III, 358 F.3d at 1119

(discussing the differences but finding it unnecessary to decide which

standard applies).

COOPER v. BROWN 15673

particular scientific tests are reliable enough to permit expert

testimony based upon their results.” United States v. Gilles-

pie, 852 F.2d 475, 480 (9th Cir. 1988) (citations omitted). The

determination whether an expert witness has sufficient quali-

fications to testify is reviewed for an abuse of discretion.

United States v. Abonce-Barrera, 257 F.3d 959, 964 (9th Cir.

2001).

We also review a district court’s decision to permit or deny

discovery in habeas proceedings for an abuse of discretion.

Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003) (en

banc). Such discovery is available only “for good cause.”2

Hayes v. Woodford, 301 F.3d 1054, 1065 n.6 (9th Cir. 2002).

“We review for an abuse of discretion the district court’s

denial of an evidentiary hearing and the scope of an evidenti-

ary hearing held.” Williams v. Woodford, 384 F.3d 567, 586

(9th Cir. 2004).

III

We first consider issues that relate to whether the district

court abused its discretion as Cooper contends it did in deny-

ing discovery, failing to order forensic testing, limiting what

he could show at evidentiary hearings, and refusing to expand

the record on certain claims. Many of these issues are inter-

woven with the merits of claims one through four and six

through nine, but Cooper raises discrete procedural challenges

that we treat separately as best we can because, if the district

court did not abuse its discretion in these procedural rulings,

we agree with its other determinations. Necessarily there is

overlap; to the extent there is, and reference to the district

court’s discussion on the merits is helpful to understanding its

2

Rule 6(a) of the Rules Governing Section 2254 Cases provides:

(a) A judge may, for good cause, authorize a party to conduct dis-

covery under the Federal Rules of Civil Procedure and may limit

the extent of discovery.

15674 COOPER v. BROWN

procedural rulings, we incorporate (without repeating) its

analysis.

A

Cooper complains that the district court denied the bulk of

his discovery requests, but focuses on only three of them:3 his

request for photographs and documentation of the examina-

tion and testing of the bloodstained T-shirt, blood drop A-41,

and the cigarette butts V-12 and V-17; San Bernardino Sher-

iffs Department (SBSD) files reviewed by Deputy Derek

Pacifico after Cooper filed his third habeas petition as part of

an investigation into whether CIM Warden Midge Carroll had

or had not contacted SBSD before trial with Brady informa-

tion regarding shoeprint evidence; and his request for test data

of Dr. Gary Siuzdak, one of the EDTA testing experts

selected by the court, when Siuzdak withdrew his results after

discovering EDTA contamination in his laboratory. Cooper

offers only a sketchy explanation why denying these requests,

without prejudice, abused the court’s discretion. We discern

no basis for concluding that it did.

[1] The state produced materials relating to the post-

conviction DNA testing in 2001 and these materials were also

exhibits in the evidentiary hearing conducted by the district

court. We cannot see how denying discovery as to these mate-

rials mattered at all.

[2] Warden Carroll’s January 30, 2004 declaration stated

that she had learned before trial — and had communicated to

3

Cooper’s briefing mentions other requests, e.g., for discovery related

to instructions to investigating authorities at the time of the murders to

stop pursuing evidence pointing to someone other than Cooper, and of the

notes of San Bernardino Sheriffs Department (SBSD) investigators who,

after the third petition was filed, investigated employees and patrons of the

Canyon Corral Bar on the night of the murders. However, he develops no

argument with respect to them and we deem appeal as to these denials, and

others, abandoned.

COOPER v. BROWN 15675

one of the lead detectives on the Cooper case — that the shoes

CIM carried were not specially designed prison-issue shoes

and were common shoes available to the general public

through Sears and other such retail stores.4 Because the en

banc court was persuaded that a Brady violation appeared to

be indicated, see Cooper III, 358 F.3d at 1120-21, the district

court set an evidentiary hearing to address Cooper’s claim

that the prosecution failed to disclose Carroll’s information. It

heard testimony from Carroll; Lt. Donald Smith, a former

investigator at CIM under Carroll; Don P. Luck, a former

executive and sales manager for Stride Rite Corporation, the

company that manufactured the Pro-Keds Dude tennis shoe;

and Sandra Coke, the defense investigator who obtained dec-

larations from Carroll, James Taylor, a CIM inmate who testi-

fied at trial that he gave Pro-Keds Dude tennis shoes to

Cooper, and Detective Derek Pacifico of SBSD.5 Carroll’s

files about Cooper’s escape and the murder investigation were

also in evidence. They are extremely detailed and include

records of telephone conversations; however, they contain no

indication that she spoke with the SBSD about tennis shoes

worn by CIM inmates. In part for this reason, the court did not

abuse its discretion in concluding that Cooper’s request for all

4

Although the district court cited a phone slip with the name of “Midge

Carroll” dated 9/19/83 and two pages of notes from trial counsel David

Negus’s files, its determination does not depend upon proof that Negus

knew about Carroll’s investigation of the tennis shoes. There was, there-

fore, no need for Cooper to have been allowed to expand the record to cor-

rect this error, if any. For this reason, the court neither abused its

discretion nor ignored the truth, as Cooper contends, in denying his

Motion to Expand the Record Pursuant to Rule 7.

5

Carroll was, of course, known to Cooper from day one. She had con-

tact with defense investigators before and after trial. Carroll’s availability

to Cooper would not necessarily derogate the state’s affirmative Brady

obligation to disclose material exculpatory information that it knew about,

but her accessability does highlight the lack of any meaningful connection

between the breadth of Cooper’s request and the possibility of adducing

favorable, material information that would tend to exculpate him. It is

unlikely that the SBSD would have thought itself capable of suppressing

information that Carroll herself could easily have provided to Cooper.

15676 COOPER v. BROWN

SBSD files reviewed by Pacifico was unjustified by the possi-

bility that Pacifico’s review may have overlooked SBSD doc-

uments reflecting a communication that Carroll’s own

detailed files do not show. In addition, the prosecution’s the-

ory was not that Pro-Keds Dude shoes were limited to prison

inmates (the Stride Rite records introduced at trial showed

distribution to other government institutions), but that there

was a link between the imprints found at and near the Ryen

house and in the Lease house to Cooper, who never denied

having a pair of Pro-Keds Dude shoes. Contracts from Stride

Rite that were in evidence at trial show that CIM purchased

1,390 Pro-Keds Dude shoes. Carroll herself had no personal

knowledge whatsoever about the availability of the tennis

shoes at CIM or elsewhere. Thus, even if she had called

SBSD as her declaration avers, all that she could have com-

municated was her belief that Pro-Keds Dude shoes weren’t

available at CIM but were available at places like Sears —

which is both mistaken and immaterial. Consequently, her

communication could not have had any appreciable bearing

on a Brady claim. Cf. Pham v. Terhune, 400 F.3d 740, 743

(9th Cir. 2005) (noting that discovery under Rule 6(a) should

not be denied if it is essential to develop fully a petitioner’s

claim).

Finally, the court acted within its discretion in denying

access to Dr. Siuzdak’s data. His EDTA test results did not

reflect the expected results from the PBS buffer reagent blank

control and so were unreliable. Contamination was not

remarkable, as laboratories use EDTA in testing. As Suiz-

dak’s results were unreliable, they could not be used to prove

Cooper’s tampering claim.

B

Cooper contends that the district court’s testing protocol for

the bloody T-shirt was flawed in five respects: (1) while the

court facially complied with the en banc order allowing only

Cooper to select a stain from the T-shirt for limited anti-

COOPER v. BROWN 15677

clotting agent testing, it refused to allow presumptive blood

testing to determine whether the stain tested was even a blood

stain; (2) it did not allow his experts, Dr. Peter DeForest and

Dr. Kevin Ballard, to view the T-shirt as a first step in design-

ing the protocol; (3) it accepted at face value Dr. Gary Siuz-

dak’s retraction of his EDTA testing results; (4) it denied

testing for anti-clotting agent migration; and (5) it denied test-

ing for other anti-clotting agents such as citric acid that were

used to preserve Cooper’s blood. He also maintains that while

the district court facially complied with this court’s order to

perform mitochondrial DNA testing to determine whether

hairs at the crime scene belonged to a third party perpetrator,

the testing ignored the recommendation of Dr. Edward Blake

to evaluate unexamined groups of hair. As a result, Cooper

submits, a large group of hairs was never examined for ana-

gen roots (roots that indicate the hair was pulled instead of

having been cut or broken), and thus hairs in that group were

never considered for testing. He also argues that the Cooper

DNA against which the hairs were examined was contami-

nated and therefore could not prove that he was a possible

source of the hairs. We disagree that the district court abused

its discretion in conducting either test.

[3] The district court held a tutorial on mitochondrial DNA

and EDTA testing at which experts for Cooper and the state

testified. At the tutorial, Cooper’s expert, Dr. Terry Melton,

explained that mitochondrial testing cannot be used effec-

tively to identify the source of hairs, but rather is primarily an

exclusionary method as it determines only whether a hair

shares maternal DNA with a particular individual. The court

developed a protocol and ordered that ten hairs suitable for

testing from Jessica’s hands be tested for mitochondrial DNA

and that two hairs (one found on Doug Ryen’s hand and one

on Chris Hughes’s arm) identified in 2001 as having anagen

roots also be tested. Dr. DeForest, Cooper’s criminalist,

selected the hairs. Two proved to be animal hairs, and tests on

the remaining hairs could not exclude Jessica, Peggy, Josh or

their maternal relatives as donors. Therefore, the results of

15678 COOPER v. BROWN

mitochondrial DNA tests did not indicate that these hairs were

pulled out of the head of a third party perpetrator.

With respect to testing the T-shirt for the purpose of deter-

mining whether the blood, previously associated with Coo-

per’s DNA, had been planted, the district court developed the

EDTA protocol over a three-month period and after extensive

input from counsel and the experts. Upon the parties’ recom-

mendation, the court also adopted a “control” method of test-

ing in which the amount of EDTA detected in a stain would

be compared to the amounts of EDTA found in various con-

trol swatches and from other non-stained portions of the T-

shirt. Pursuant to the protocol, the stain was to be extracted

by Dr. DeForest and shipped to Dr. Ballard and Dr. Suizdak

for double-blind EDTA testing. After the test results were

submitted, the parties proposed a protocol for DNA testing to

determine whether the main stain fabric cut-out from the

EDTA testing contained Cooper’s blood. From the results of

that testing, Cooper could not be excluded as a contributor of

the DNA extracted from the cut-out, while Peggy Ryen, Jes-

sica Ryen, Josh Ryen, Doug Ryen and Chris Hughes were

each eliminated as a possible contributor. The court ultimately

concluded that EDTA testing lacks sufficient indicia of reli-

ability to be admissible under Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. 579, 589 (1993). However, the

court alternatively found that Dr. Ballard’s results disprove

Cooper’s theory of tampering because Cooper’s theory

requires a high level of EDTA presence in the blood, but the

EDTA level in the stain with blood was actually lower than

that of most of the control areas. See Order at 15760-89

(describing process and making EDTA findings).

[4] Turning to Cooper’s contentions about testing of the T-

shirt, we note at the outset that it is immaterial whether the

EDTA tests were flawed or not because the district court had

discretion to conclude that EDTA testing does not meet Dau-

bert standards. “In Daubert, the Court set out four factors to

be reviewed when applying Rule 702: (1) whether the theory

COOPER v. BROWN 15679

or technique can be or has been tested, (2) whether the theory

or technique has been subjected to peer review, (3) whether

the error rate is known and standards exist controlling the

operation of the technique, and (4) whether the theory or tech-

nique has gained general acceptance.”6 United States v.

Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000).

There is no evidence in the record that application of mass

spectrometry to forensic analysis of blood evidence to deter-

mine EDTA levels can be or has been tested. The technique

has been offered to courts only twice before; in one case,

there was no challenge to the EDTA evidence and in the

other, Dr. Ballard, as well as the EDTA testing that he was to

perform, were rejected by the court. EDTA testing has not

been subjected to peer review and there has been no discus-

sion of forensic EDTA testing in scientific literature since a

1997 article that headlines the need for a better analytical

method. In short, for reasons explained in detail by the district

court, Order at 15774-85, EDTA testing has not gained gen-

eral acceptance in the scientific community.

[5] Regardless, Cooper fails to explain why additional

inspection of the T-shirt was necessary, for an appropriate

stain and controls were selected after 6G, the stain that was

initially selected, proved unavailable because it had already

been consumed. Dr. DeForest did not participate in this selec-

tion because he had removed himself, but Cellmark — a labo-

ratory that Cooper agreed was highly qualified — replaced

6

Federal Rule of Evidence 702 governs admissibility of scientific evi-

dence in federal district court. Clausen v. M/V NEW CARISSA, 339 F.3d

1049, 1055 (9th Cir. 2003). It provides:

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon suf-

ficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the prin-

ciples and methods reliably to the facts of the case.

15680 COOPER v. BROWN

him to conduct the extraction. No basis appears in the record

to question selection of the stain that was used, and Cooper

points to none on appeal. Dr. Maddox of Cellmark and the

state’s expert, Steven Myers, selected an area between two

stains designated “6J” and “6K,” each of which had earlier

been found to be blood containing primarily Cooper’s DNA.

Nor does any reason appear why Dr. Suizdak’s representa-

tions should not have been accepted at face value; the testing

he was to undertake was double-blind, he is a well respected

scientist, and he had no interest in the outcome.

[6] Cooper never asked for presumptive blood testing

before the protocol was implemented, which is sufficient rea-

son to reject his argument on appeal; in any event, as DNA

analysis on the tested area later confirmed that Cooper could

not be excluded as a contributor of the DNA extracted from

the cut-out, there is no point to his complaining now about the

lack of presumptive testing. Likewise, Cooper articulated no

concern before the test results were in about the possibility

that EDTA could have migrated from the selected stain.

Regardless, if his post-hoc migration theory were correct, it

would be theoretically impossible to achieve meaningful

results from further testing as there is no way to determine

whether the background EDTA levels throughout the shirt are

higher than normal for there is no “normal” base level of

EDTA.

[7] Finally, Cooper’s suggestion that testing for other anti-

clotting agents such as citric acid should have been allowed

is misplaced as the only occasion where his blood was pre-

served in a tube containing citric acid was when it was drawn

by the San Quentin Prison, not by the SBSD, and the only

blood sample of Cooper’s to which the SBSD had access was

drawn into a tube containing EDTA as a preservative. Further

testing on the T-shirt was, therefore, not required.

[8] Neither was the mitochondrial DNA testing deficient as

Cooper argues. By way of background, Cooper’s forensic

COOPER v. BROWN 15681

expert (Dr. Blake) and Department of Justice criminalist Ste-

ven Myers spent six days in 2001 jointly conducting visual

and microscopic examination of approximately 1000 hairs

recovered from the victims’ bodies in order to identify hairs

that had properties of hair pulled from the skin. Only hairs

with anagen roots can be used to identify an assailant because

only they, as contrasted with a cut or broken hair, can indicate

that the victim may have pulled the perpetrator’s hair in a

struggle. Three hairs meeting the experts’ criteria were identi-

fied, but nuclear DNA testing of these hairs yielded no human

DNA. Responsive to the en banc ruling, the district court

allowed Cooper’s criminalist to select up to 10 hairs from

those removed from Jessica’s hands for mitochondrial DNA

testing. No anagen hairs were identified and the 10 hairs

selected were tested along with the two remaining hairs sub-

jected to nuclear DNA testing in 2001. The results show that

Jessica, Peggy, and Josh Ryen could not be excluded as the

source of the hairs in Jessica’s hands.

Cooper contends that the court turned its back on its “own

expert’s” view that hair testing must be designed to ensure

that it is complete and thorough, but the premise is faulty on

two accounts. First, the expert referred to — Dr. Blake — was

not the court’s expert, as Cooper characterizes him; he was

Cooper’s expert in state court and has been throughout the

federal proceedings, and did not become otherwise solely on

account of his appointment by the court for the purpose of

assuring adequate compensation. More importantly, Dr. Blake

did not recommend that every hair be examined, as Cooper

suggests. To the contrary, Blake testified that “[t]he only rea-

son to go through this process one more time is simply to be

much more rigorous and detailed in the survey, should that be

deemed to be a useful thing to do.” He never opined that it

would be useful or reasonable.

[9] Cooper’s argument that his blood sample was contami-

nated is beside the point. The hairs were never examined to

see if they came from Cooper, and there has never been any

15682 COOPER v. BROWN

evidence or suggestion to that effect. Rather, Cooper’s theory

was that the hairs came from a third party, that is, from the

real killer, and if this could be shown, then the presence of a

third party at the scene would prove his innocence. That is

why the en banc court ordered mitochondrial testing. See 358

F.3d at 1124 (noting that mitochondrial testing of the blond

or light brown hair in Jessica Ryen’s hand, if favorable to

Cooper, could positively identify Lee Furrow or perhaps oth-

ers as the killer or killers). Thus, even if Cooper’s sample

were contaminated, it is irrelevant.

C

[10] Cooper maintains that the district court refused to

allow him to present evidence related to the three suspicious

men in the Canyon Corral Bar. This is belied by the record.

See Order at 15811-23. He points to exclusion of Al Warren,

a bartender who was not present on the night of the murders,

for whom his only proffer was that Warren was “presumably”

privy to discussion of the incident. Having heard from the

bartender who was on duty (Edward Lelko), the manager, the

waitress who served the three men drinks, two patrons who

saw the three men, another waitress who was working that

night, a bouncer, and others who frequented the Canyon Cor-

ral, the court had discretion to decline to hear another bar

employee who was not percipient. Cooper also points to lim-

ited inquiry into witness tampering with Lance Stark. Stark

testified that before the evidentiary hearing, he was

approached by an individual wearing a white, short sleeve

shirt and driving a white, unmarked Ford Crown Victoria with

a computer extending out from the dashboard on an arm,

whom he believed to be a member of law enforcement and

who made it clear that it would be in Stark’s best interest not

to talk about the Cooper case. However, the court had discre-

tion to find that Cooper’s request for further inquiry would be

a wild goose chase as Cooper had no license plate or other

information that might lead to the driver, and to conclude that

it would be unlikely to produce anything of probative value.

COOPER v. BROWN 15683

Stark testified, so the incident did not inhibit him and even if

it were law-enforcement related as he speculates, it would

have no tendency to prove what happened at the Canyon Cor-

ral Bar.

[11] Cooper also submits that the court improperly refused

to allow him to examine Daniel Gregonis, the SBSD criminal-

ist responsible for examining and testing several items of evi-

dence including the bloodstained T-shirt, blood drop A-41,

and the cigarette butts V-12 and V-17. However, Cooper was

given an evidentiary hearing in state court in 2003 to present

evidence of his tampering claims, and Gregonis testified and

was examined by Cooper’s counsel. He had an opportunity to

develop a record, and the district court was not obliged to pro-

vide another one.

The same is true to the extent Cooper contends that further

testing is needed in general to show that these items, blood

spots identified as the “UU Series,” and a blood sample drawn

from him at the time of his arrest (VV-2) were tampered with.

Each claim is procedurally barred and, in addition, both the

tampering with the UU Series claim and the planting of ciga-

rette butts claim have been previously adjudicated. See, e.g.,

Cooper v. Calderon, No. 92-CV-427H at 41, 50-51. As we

have explained, it doesn’t matter to any of Cooper’s claims

whether his blood sample (VV-2) was contaminated or not; it

wasn’t used for anything material.

Cooper also insists that the fact that the size of one of the

cigarettes (V-12) changed by 3 millimeters after having been

unrolled for testing demonstrates tampering, but his position

was rejected by the San Diego County Superior Court after an

evidentiary hearing and Cooper has not overcome the defer-

ence due that determination under 28 U.S.C. § 2254(d). The

first measurement (4 mm) was of a “butt,” whereas the second

measurement (7 mm) is one of two dimensions given for

“burned paper in box 7x7 mm.” It is clear that the second

measurement is of unrolled paper, whereas the first measure-

15684 COOPER v. BROWN

ment is of the rolled butt. That the dimensions would be dif-

ferent is self-evident, and the difference in no way calls into

question the state court’s finding or requires further inquiry at

this stage.

[12] Cooper continues to assert that the bloody T-shirt is

connected to at least one of the perpetrators and that the dis-

trict court limited the evidence he was allowed to develop and

present to show tampering. This goes nowhere for reasons we

have just explained. Nor did the district court abuse its discre-

tion in not allowing Cooper to recall Dr. Ballard to clarify the

reliability of his testing methods, to state that he could test for

other anti-clotting agents, and to testify to the reliability of his

laboratory; or to cross-examine experts with respect to anti-

clotting agent testing; or to cross-examine Dr. Suizdak and

Dr. Lewis Maddox, who prepared the stain solutions for test-

ing. To the extent relevant and helpful, ample opportunity for

expert input and consultation was afforded.

[13] Cooper also faults the district court for refusing to per-

mit him to pursue examination of informant Albert Anthony

Ruiz, who testified at an evidentiary hearing on August 6,

2004, about what he might have heard from sources other

than law enforcement in San Bernardino County. The asserted

relevance was to Cooper’s Brady claim that the prosecution

failed to disclose evidence from Ruiz that law enforcement

was ordered to plant evidence inculpating Cooper. We see no

abuse of discretion, as Ruiz did not work for and had no deal-

ings with SBSD and had no direct information about the

investigation. All that he could possibly have learned was sec-

ondhand public information recounted by Jim Parsons, a dep-

uty with the Riverside County Sheriff’s Department who

submitted a declaration himself and who, in any event, had no

involvement in the Cooper case or knowledge of it beyond

what he read in the papers or saw on television. In light of

this, the court committed no error in excluding information

that was hearsay and speculation as well as immaterial to

SBSD’s Brady obligations.

COOPER v. BROWN 15685

[14] Cooper’s contention that the district court improperly

refused to allow him to uncover and present evidence regard-

ing daily logs and a blue shirt listed on the log for June 6,

1983, fails as no evidence contradicts the state’s submission

that the log was available to Cooper before trial. Cooper’s

counsel represented to the trial judge that he had the daily

logs. The issue could, and should, have been pursued long

before now. See Order at 14869-74.

[15] Cooper argues that he was precluded from fully

exploring his tennis shoe claims by the court’s refusal to

allow him to review the records Pacifico reviewed and to send

written questions to Michael Newberry, who worked for

Stride Rite Corporation and testified at trial that Stride Rite

had a contract with CIM for Pro-Keds Dude tennis shoes that

were not available in retail stores. We have already explained

why the court did not abuse its discretion in declining to order

discovery into all the SBSD files reviewed by Pacifico, and

Cooper makes no proffer why questions to Newberry would

shed any light on the contracts which were, themselves, in

evidence, or on distribution of the Pro-Keds Dude shoe as to

which there is no substantial dispute — except for Carroll’s

unfounded belief.

[16] Cooper also complains that he was not allowed to

cross-examine Josh Ryen in connection with Claim Four,

which asserts that Josh’s testimony at trial was altered and

unreliable. As the district court found, the facts and circum-

stances surrounding Josh Ryen’s statements and how they

were presented to the jury have been known for twenty years.

The jury heard two taped statements pursuant to the parties’

stipulation: a videotape of an interview on December 9, 1984

when Cooper’s counsel and the prosecutor questioned Josh

under oath, and an audiotape of a December 1, 1983 interview

with Dr. Lorna Forbes, Josh’s treating psychiatrist. He did not

identify an assailant in either one, but said on the one hand

that three Hispanic workers visited the ranch the day of the

murders, and on the other that he saw a single man with a

15686 COOPER v. BROWN

“puff” of hair standing over his mother. On April 22, 2005,

the district court allowed Josh Ryen, along with Christopher

Hughes’s parents, to make a statement about their views of

the matter as victims.7 Cooper argues that he should have

been allowed an evidentiary hearing because the April 22,

2005 statement (during which Josh Ryen recalled a man with

“bushy” hair) was a “third version” that further proves the

manipulation, and unreliability, of the trial version. We dis-

agree that the court abused its discretion.8 Even accepting

Cooper’s position that Josh Ryen’s April 22, 2005 statement

satisfies the requirements for an evidentiary hearing in

§ 2254(e)(2) because the latest version could not have been

discovered earlier, § 2254(e)(2)(B)9 nevertheless applies to

bar relief as the jury knew that Josh Ryen had given some-

what inconsistent accounts yet convicted Cooper anyway. We

7

This was after the close of evidence. The district court allowed Hughes

and Josh Ryen an opportunity to make a statement consistent with Con-

gress’s intent in The Justice For All Act, Pub. L. No. 108-405, § 102, 118

Stat. 2260, 2261-62 (2004), that victims be heard.

8

Aside from noting that the jury never heard Josh’s recollection of a

man with bushy hair, the district court did not base its Claim Four determi-

nation on anything that Josh said in his victim statement. Rather, it found

that the defense was benefitted at trial by the taped presentations because

Josh Ryen did not identify his assailant, the jury heard his earlier state-

ment that three Hispanic workers had been at the ranch, and the stipulation

avoided the sympathy factor of having Josh present on the stand. It con-

cluded that deference was due to the state court’s determinations and, as

Cooper has known about Josh’s somewhat inconsistent versions since the

murder, he failed to exercise due diligence in developing the factual predi-

cate for a new evidentiary hearing. See Order at 14878-79; 28 U.S.C.

§ 2254(e)(2).

9

In relevant part, 28 U.S.C. § 2254(e)(2)(B) provides that an evidentiary

hearing shall not be held on a claim unless it relies on a factual predicate

that could not have been previously discovered through the exercise of due

diligence, and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.

COOPER v. BROWN 15687

cannot conclude that no reasonable juror would have con-

victed Cooper knowing that Josh Ryen now recalls a man

with bushy hair.

Finally, Cooper maintains that the district court purported

to make credibility determinations of witnesses based solely

on documents. Even if this weren’t allowed (which it is, in

appropriate circumstances), he points to no instances where

this happened.

[17] Accordingly, there is no basis to remand for examina-

tion and more testing of the evidence, or additional evidenti-

ary hearings, as Cooper urges.

IV

The district court denied Cooper’s claim of actual inno-

cence after detailing the DNA evidence that shows he is the

donor of the DNA extracted from the drop of blood found in

the hallway outside the Ryen master bedroom (A-41), saliva

from the hand-rolled and manufactured cigarette butts (as

used at CIM) found inside the abandoned Ryen station wagon,

and blood smears on the T-shirt found near the Canyon Corral

Bar (even though it was not used to establish Cooper’s guilt

at trial); explaining why Cooper’s challenge to the DNA evi-

dence is unavailing; reviewing prior court findings that docu-

ment overwhelming evidence of guilt; and considering the

testimony from forty-two witnesses and numerous exhibits

introduced at evidentiary hearings held after remand. Order at

15789-853.

Cooper argues the district court was incorrect in light of

substantial evidence of third party perpetrators in the Canyon

Corral Bar and Albert Anthony Ruiz’s testimony. That he

didn’t do it, Cooper suggests, is bolstered by his showing of

alternative suspects through the Kenneth Koon confession and

information concerning Lee Furrow and his bloody coveralls.

15688 COOPER v. BROWN

We disagree, for reasons stated by the district court. See Order

at 15846-47; 15850-51.

[18] We agree with the district court’s conclusion that all

of Cooper’s challenges “have come back the same: there is

overwhelming evidence that Petitioner is the person guilty of

these murders.” Order at 15854. Considering all the evidence,

new and old, Cooper has not shown that it is more likely than

not that no reasonable juror would have found him guilty

beyond a reasonable doubt. Schlup, 513 U.S. at 327; see

House, 1265 S.Ct. at 2076-78 (explaining the Schlup stan-

dard). Thus, Cooper meets neither Schlup’s gateway nor

AEDPA’s.10 It follows that Cooper has not met Herrera’s

standard for actual innocence. Herrera v. Collins, 506 U.S.

390 (1993).

V

[19] In discussing Cooper’s procedural challenges, we have

already indicated why he is not entitled to relief on his claim

that the state contaminated or tampered with the evidence

with respect to examination and testing of the T-shirt and the

blood spot (A-41). The T-shirt, of course, was not used as evi-

dence against Cooper so it is difficult to see how it could have

had any inculpatory effect. Post-conviction, however, it has

become the center of attention. See, e.g., Cooper III, 358 F.3d

at 1124 (observing that this case centers on Cooper’s claim

that he is innocent, and quoting his argument that with EDTA

testing “ ‘the question of Mr. Cooper’s innocence can be

10

In addition to finding that most of Cooper’s allegations relate to evi-

dence that was already presented at trial and previously rejected, and that

the remainder rest on unreliable or incorrect information and source, the

court concluded that Cooper did not meet his burden under 28 U.S.C.

§ 2244(b), which requires a factual claim not discoverable through due dil-

igence that establishes by clear and convincing evidence that, but for con-

stitutional error, no reasonable factfinder would have found him guilty, or

under § 2254(d), which requires that the state court’s decision be contrary

to or an unreasonable application of clearly established federal law.

COOPER v. BROWN 15689

answered once and for all’ ”); id. (Silverman, CJ, concurring

in part and dissenting in part) (noting that “[e]verything

comes down to the bloody t-shirt”). The San Diego County

Superior Court took evidence on the tampering claim and

found none, and the California Supreme Court denied Coo-

per’s petition for writ of mandate on the issue. EDTA testing

turned up nothing to indicate tampering.

There was neither visible blood remaining on the paint

chips comprising A-41 nor control areas around the blood

sample for purposes of determining if there is a significant

difference between the amounts of EDTA in the stain com-

pared with areas surrounding it. Accordingly, for reasons it

explained that are well-founded in the record, the district

court concluded that A-41 is not able to be reliably tested for

the presence of EDTA. Order at 15786-89. This leaves in

place the finding of the state court that no tampering occurred.

Cooper offers no convincing evidence why that finding is not

correct and entitled to deference.

[20] To the extent his appeal extends beyond these items,

we also agree with the district court’s analysis that Cooper’s

claims of evidence tampering and withholding lack merit. See

Order at 15874-78.

VI

[21] Cooper argues that the district court’s analysis of his

Brady claims was contrary to clearly established federal law

as set forth in Kyles v. Whitley, 514 U.S. 419, 435-36 & n. 10

(1995), in that it analyzed each Brady claim individually with-

out analyzing their cumulative effect. We agree with the dis-

trict court’s analysis with regard to the state’s alleged

withholding and manipulation of evidence related to shoe-

prints found in the Ryen home and hideout house, the bloody

coveralls, the blue shirt, and the Canyon Corral Bar. As there

is no individual Brady violation, there are no violations to

cumulate.

15690 COOPER v. BROWN

[22] Apart from what we have already discussed, the dis-

trict court held an evidentiary hearing to evaluate Cooper’s

claim that he discovered in 1998 a disposition report initialed

“KS” that contradicted Deputy Frederick Eckley’s trial testi-

mony that on his own, he had destroyed the coveralls that

Diana Roper gave him. After considering the testimony of

Eckley and Deputy Ken Schreckengost (the “KS” of “KS”)

and evaluating their credibility, the court found that Eckley

did act on his own in destroying the coveralls without discuss-

ing it with Schreckengost. So, as the district court held, the

disposition report does not cast doubt on Eckley’s testimony

or undermine the prior findings and conclusions of the Cali-

fornia Supreme Court or the district court’s own determina-

tion that the coveralls were not material exculpatory evidence

in Cooper’s case. Order at 15857-59. We are not firmly con-

vinced this finding is wrong.

[23] The district court rejected Cooper’s contention that the

prosecution failed to disclose that a police officer was present

at the Canyon Corral Bar on the night of the murders based

on extensive testimony about what actually happened that

night and what it viewed as the more credible version of those

events. Cooper’s argument on appeal is insubstantial and

leaves us without a firm conviction that the district court

erred. As there was no police presence at the bar on the night

of the murders, there was no evidence for the prosecution to

suppress.

[24] Cooper additionally alludes to the fact that Detective

Timothy Wilson had information that three suspicious men

were seen in the bar, which he passed on to the sergeant in

charge of the Ryen/Hughes investigation but which the prose-

cution failed to disclose to Cooper. However, Cooper offers

no suggestion why this information undermines confidence in

the verdict. It was no secret that three strangers were at the

bar. The district court found that the more credible version of

events came from employees and patrons interviewed shortly

after the murders who testified at trial. In any event, none of

COOPER v. BROWN 15691

the witnesses casts doubt on the physical evidence of Coo-

per’s guilt. As the court’s exhaustive recital of all the Canyon

Corral evidence — both that adduced at trial and at the evi-

dentiary hearing — shows, see Order at 15811-24, rumors

that Wilson picked up from word on the streets could not have

been exculpatory, impeaching or material.

VII

[25] The district court noted that the jury heard two taped

statements of Joshua Ryen, pursuant to stipulation, that bene-

fitted the defense because he did not identify his assailant, had

earlier indicated that three Hispanic workers had been at the

ranch, and was not on the stand to garner sympathy. The court

deferred to denial of Cooper’s constitutional claim on the

merits by the California Supreme Court pursuant to 28 U.S.C.

§ 2254(d), and found that Cooper had not demonstrated that,

but for constitutional error, no reasonable juror would have

found him guilty if Josh Ryen had been subjected to testifying

at trial. Order at 15878-80. We agree.

VIII

Cooper’s initial briefing posits that he is entitled to relief on

his claim that SBSD unlawfully destroyed the bloody cover-

alls, and on his claims that trial counsel rendered ineffective

assistance in failing to present evidence of another person’s

confession to the murders, failing to connect the bloody cov-

eralls to Lee Furrow, and failing to introduce evidence that

victims were clutching hair in their hands. He pursues none

of these claims in reply. Each has been adjudicated previously

in one forum or another. And we are in accord with the dis-

trict court’s treatment of all these claims. See Order at 15846-

53.

IX

[26] Our conclusion that Cooper prevails on none of his

claims moots his last submission, that his conviction and sen-

15692 COOPER v. BROWN

tence were infected by multiple constitutional errors without

which the jury would have returned a not guilty or non-capital

verdict. As the district court, and all state courts, have repeat-

edly found, evidence of Cooper’s guilt was overwhelming.

The tests that he asked for to show his innocence “once and

for all” show nothing of the sort.

AFFIRMED.

COOPER v. BROWN 15693

APPENDIX A

Order Denying Successive Petition for Writ of Habeas

Corpus (May 27, 2005)

United States District Court

Southern District of California

COOPER v. BROWN 15887

McKEOWN, Circuit Judge, concurring:

I.

I concur in the opinion but am troubled that we cannot, in

Kevin Cooper’s words, resolve the question of his guilt “once

and for all.” I do not fault the careful and extensive review by

the district court or the multiple levels of appeal carried out

under statutory and Supreme Court standards. Rather, the

state bears considerable responsibility in making such resolu-

tion unavailable. I separately concur to underscore the critical

link between confidence in our justice system and integrity of

the evidence.

Significant evidence bearing on Cooper’s culpability has

been lost, destroyed or left unpursued, including, for example,

blood-covered coveralls belonging to a potential suspect who

was a convicted murderer, and a bloody t-shirt, discovered

alongside the road near the crime scene. The managing crimi-

nologist in charge of the evidence used to establish Cooper’s

guilt at trial was, as it turns out, a heroin addict, and was fired

for stealing drugs seized by the police. Countless other

alleged problems with the handling and disclosure of evidence

and the integrity of the forensic testing and investigation

undermine confidence in the evidence. As the Supreme Court

observed in Kyles v. Whitley, “[w]hen, for example, the pro-

bative force of evidence depends on the circumstances in

which it was obtained and those circumstances raise a possi-

bility of fraud, indications of conscientious police work will

enhance probative force and slovenly work will diminish it.”

514 U.S. 419, 446 n.15 (1995).

The legitimacy of our criminal justice system depends on

the “special role played by the American prosecutor in the

search for truth in criminal trials.” Banks v. Dretke, 540 U.S.

668, 696 (2004) (quoting Strickler v. Greene, 527 U.S. 263,

281 (1999)). The same principle extends to the police and

their investigatory work in supporting the prosecution. Of

15888 COOPER v. BROWN

course we don’t demand or expect perfection. But we expect

full disclosure, competency in the investigation, and confi-

dence in the evidence. To be sure, sometimes the prosecution

is hampered by sloppy police work. And sometimes inept

investigation and disclosure by the police colors the prosecu-

tion. But, the obligation of the prosecutor to disclose evidence

favorable to the defense serves to “justify trust in the prosecu-

tor as ‘the representative . . . of a sovereignty . . . whose inter-

est . . . in a criminal prosecution is not that it shall win a case,

but that justice shall be done.” Kyles, 514 U.S. at 439 (quoting

Berger v. United States, 295 U.S. 78, 88 (1935)).

Despite the presence of serious questions as to the integrity

of the investigation and evidence supporting the conviction,

we are constrained by the requirements of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§ 2244(b)(2)(b). The only exception potentially applicable in

Cooper’s case requires Cooper to present facts that “could not

have been discovered previously through the exercise of due

diligence,” and that, if proven, and “viewed in light of the evi-

dence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found [Cooper] guilty of

the underlying offense.” 28 U.S.C. § 2244(b)(2)(B) (empha-

ses added).

In light of this demanding statutory barrier, I agree that

Cooper has failed to qualify for relief. Nonetheless, I write

separately to draw attention to the illustrative troubling cir-

cumstances involving the alleged state mishandling of evi-

dence. The forensic evidence in this case is critical and yet

was compromised.1 These facts are all the more troubling

because Cooper’s life is at stake.

1

Other evidence, such as the eye witness testimony, was wide-ranging

and contradictory. For example, following the murders, Josh initially sig-

naled that three men were his attackers. He also signaled that they were

not black or dark-skinned. Later, he saw Cooper on television and said that

Cooper was not the attacker and that he had never seen Cooper, an obser-

vation he also shared with his grandmother. A year and a half later, Josh

testified that Cooper had done the killing.

COOPER v. BROWN 15889

II.

Following are illustrative examples of evidentiary gaps,

mishandling of evidence and suspicious circumstances.

DESTRUCTION OF BLOODY COVERALLS

During the pre-trial investigation, a woman named Diana

Roper phoned police to report a pair of bloody coveralls left

at her house by her then-boyfriend, Lee Furrow. Roper told

police that Furrow may have been involved in the Ryen-

Hughes murders. Furrow’s hatchet was missing from his tool

belt after the murders, and Roper also reported erratic behav-

ior and remarks that aroused her suspicion.

According to Roper and her sister, on the day after the mur-

ders, Furrow showed up in a car that matched the description

of the Ryens’ station wagon. Roper also explained that Fur-

row bragged about his three rules “to follow anytime you do

a crime:” “wear gloves, never wear your own shoes and never

leave a witness alive.”

In the face of this potential link between Furrow and the

murders, and despite being a convicted murderer, Furrow was

never pursued as a suspect. See, e.g., Allen v. Woodford, 395

F.3d 979, 986 (9th Cir. 2005) (“When Furrow and Kitts were

finally left alone, Furrow began to strangle Kitts, only to be

interrupted by a phone call . . . . Furrow then strangled Kitts

to death . . . tie[d] stones to Kitt’s wrapped-up body and . . .

[threw] it into a canal.”).

The coveralls were turned over to a detective, but case

investigators did not follow up. The homicide division did not

return phone calls. Then, before completion of the preliminary

hearing, the detective threw the coveralls away in a dumpster.

Although the destruction of the coveralls was known at trial

and was pursued during Cooper’s first federal habeas petition,

the destruction of evidence was claimed to be the misguided

15890 COOPER v. BROWN

act of a single officer. Only later, long after the trial, did the

defense discover previously undisclosed documentary evi-

dence to the contrary—a police department memorandum

confirming destruction of the coveralls, signed by a higher

ranking supervisory officer. Destruction of bloody coveralls

from a potential suspect is not an inconsequential forensic

gaffe.

THE MISSING SHIRT

Although two suspicious and potentially bloodied t-shirts

were apparently turned over to the police and logged in as

evidence during the murder investigation, only one of these—

a yellow t- shirt—was disclosed to the defense. However, the

police logged in a second, possibly blood-covered shirt and

recorded it as a blue shirt. The blue shirt was not produced to

the defense and reference to the shirt was only found when,

post-conviction, defense counsel was combing through later-

discovered police logs.

In yet another investigative contradiction, the state now

claims that the blue t-shirt was actually the yellow t-shirt that

was properly disclosed. However, the woman who found the

shirt on the side of the road not far from the crime scene and

who reported the blue t-shirt remembers it as blue. The writ-

ten log clearly reflects a blue t-shirt, and separately notes a

yellow t-shirt.

The district court concluded that the log reflecting the blue

t-shirt was produced to the defense earlier, and hence the blue

t-shirt did not constitute new evidence. Cooper claims the

page in question is not stamped in the same format as the

other police log pages produced in pre-trial discovery. No

explanation is provided for this discrepancy. Even had the

page been produced, the t-shirt itself was undeniably never

produced. Has the t-shirt gone the way of the destroyed cover-

alls? Is the blue t-shirt really the yellow t-shirt? How could a

COOPER v. BROWN 15891

shirt described as blue become yellow? Once again, bungled

records and bungled investigative work obscure the truth.

BLOOD DROP A-41

Blood drop A-41 is the most controversial and crucial

aspect of the state’s case, yet it was handled carelessly from

the time it was first acquired. To begin, no one actually

remembers finding A-41; everyone claims that someone else

pointed it out.

When originally tested, Cooper’s blood type was identified

as Type B, and subsequently A-41 was identified as Type B.

Soon after, it came to light that Cooper’s blood type was actu-

ally RB, and then A-41 was determined to be RB as well. One

criminologist changed his testimony regarding the depletion

of the sample. The criminologist originally thought he ran low

on the blood stored inside a small pill box, but later more “ap-

peared” to him that he claimed not to have seen initially. In

1991, the Supreme Court of California determined that after

the final pre-trial tests on A-41, the sample was “completely

consumed.” People v. Cooper, 809 P.2d 865, 878 (Cal. 1991).

Criminologist Daniel Gregonis, who tested Cooper’s blood,

saliva and semen, is alleged to have repeatedly mishandled

the biological evidence both pre- and post-trial. Evidence

points to the fact that Gregonis broke the seal on A-41 in

1999, potentially contaminating it, and conducted testing of

unknown source evidence specimens by placing them along-

side the samples drawn from Cooper. In state court, Gregonis

testified that he did not open the glassine envelope containing

A-41 during the time it was in his unsupervised custody.

However, photographic evidence reveals that A-41 was

opened and resealed with the initials DJG (Daniel John Gre-

gonis) and the date “8/13/99,” which was during the period

that the sample was checked out to Gregonis. After trial, Gre-

gonis also allegedly checked out and mislaid a sample of Coo-

per’s saliva. On several other occasions, Gregonis altered his

15892 COOPER v. BROWN

laboratory notes and changed his testimony about laboratory

testing. The chain of custody of the blood sample is also in

question due to mishandling by Gregonis.

To make matters worse, the manager of the San Bernadino

Sheriff’s Crime Laboratory was a heroin addict during the

time period in question and was later dismissed from his

employment for allegedly stealing heroin from the police evi-

dence cache. As in House v. Bell, “the evidentiary disarray”

and the “limited rebuttal of it in the present record, would pre-

vent reasonable jurors from placing significant reliance on the

blood evidence.” 126 S. Ct. 2064, 2083 (2006). Resting Coo-

per’s conviction on the DNA evidence, which was not before

the jury, is particularly problematic because of the extensive

evidence documenting the mishandling of the evidence.

THE WIDE AVAILABILITY OF KEDS SHOES

The Keds tennis shoes are perhaps the most damning evi-

dence against Cooper. As the prosecution stated in its opening

statement, the shoes “were supplied strictly for prison use

within the state of California and unavailable through retail

stores in California.” However, we now know that the Keds

shoes believed at trial to be issued only to prison inmates

were actually provided by various government entities,

including the Forest Service, Navy, and state hospitals, and

were available through retail catalogs.

In district court, Cooper produced a catalog, not before the

jury in 1985, that demonstrated that the shoes were available

for retail sale. According to Cooper, the widespread availabil-

ity of the shoes was known to the prosecution at the time of

trial, as it had been reported by the warden of the minimum

security prison from which Cooper escaped. But the prosecu-

tion failed to disclose this evidence. Before trial, the warden

reported to a lead investigator that the notion that the shoes

were prison-issue only was inaccurate and that the shoes were

commercially available to the public through Sears Roebuck

COOPER v. BROWN 15893

and other retail outlets. Cooper’s trial attorney confirmed that

at the time of trial he was “not aware the Pro Keds Dude ten-

nis shoes were listed for sale in a retail catalogue” and that

had he known this information he “would have featured that

fact prominently in the defense at trial.”

The habeas process does not account for lingering doubt or

new evidence that cannot leap the clear and convincing hurdle

of AEDPA. Instead, we are left with a situation in which con-

fidence in the blood sample is murky at best, and lost,

destroyed or tampered evidence cannot be factored into the

final analysis of doubt. The result is wholly discomforting,

but one that the law demands.