Cooper v. Brown

RYMER, Circuit Judge,

concurring:

I concur in the court’s order declining to rehear this case en banc. The panel opinion explains why we affirmed denial of the writ, Cooper v. Brown, 510 F.3d 870 (9th Cir.2007) (Cooper TV), so I write now only to highlight the main reasons I agree with the court’s decision and not the dissents from failure to take the case en banc. I take particular issue with Judge Fletcher’s dissent because:

1. The dissent improperly marshals the facts in the light most favorable to Kevin Cooper, yet the evidence was resolved against Cooper at trial — after he took the stand and testified — and at each step of post-conviction proceedings. The dissent also approaches the issues as if they were new, yet the same issues have been on the table since day one (except for DNA testing which didn’t exist at the time and which has turned out to be inculpatory). This includes Josh Ryen’s statements; handling the drop of blood A-41; the presence of three strangers at the Canyon Corral Bar; that three white men were seen driving on the road leading away from the Ryen house; Cooper’s tennis shoes and whether they were Pro-Keds Dudes or left the impressions made at the Lease house as well as at and near the Ryen house; the bloody coveralls that were linked to Lee Furrow and were destroyed by law enforcement; where in the Lease house the hatchet sheath was found; whose blood was on a tan T-shirt found *637 along the road; cigarette butts in the Ryen station wagon that were linked to Cooper; if there were a blue shirt and what happened to it; and police incompetence, mishandling of evidence, and chain of custody problems. All were known at the time of trial and have been litigated in one forum or another, unfavorably to Cooper, for the last 24 years.

2. The dissent ignores the rules that Congress established for federal habeas review of state criminal judgments in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Cooper’s petition is a successive federal habeas corpus application that was preceded by appeals through the California courts, post-conviction petitions in state and federal court, and evidentiary hearings in both state and federal court. 1 At this stage, AEDPA requires federal courts to presume that factual determinations by state courts are correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254 (e)(1). 2 This applies to determina *638 tions adverse to Cooper on police tampering with A-41 and cigarette butts, the presence of three men at the Canyon Corral, and tampering with the tan T-shirt. AEDPA also precludes federal courts from granting habeas relief when a state court has adjudicated the merits of a claim raised in a federal petition and the state court’s adjudication is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. § 2254(d). 3 This applies to state court determinations on Cooper’s claim of actual innocence, evidence tampering, Josh Ryen’s statements, destruction of the bloody coveralls, the blue shirt, and failure to disclose exculpatory evidence.

AEDPA further provides that federal courts must dismiss claims that the petitioner has presented in a prior application. § 2244(b)(1). 4 This includes handling of A-41; the Koon statement; destruction of the bloody coveralls; and planting evidence, or manipulating tests, on cigarette butts. AEDPA likewise requires dismissal of claims for which the factual predicate could have been discovered before and that, if proved and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty of the underlying offense. § 2244(b)(2)(B)(i)-(ii). 5 This includes the blue shirt and daily log; cigarette butts and their testing; Josh Ryen’s statements; the three men at the Canyon Corral; Lee Furrow and the bloody coveralls; destruction of the coveralls; and the hatchet sheath. 6

*639 As the dissent pays no attention, and gives no deference, to state court determinations, and reaches the merits of claims without regard to whether AEDPA mandates their dismissal, the picture it paints is quite different from the canvas that is actually before us.

3. In lieu of AEDPA, the dissent starts with the false premise that the district court “flouted” this court’s “direction” (in our en banc opinion authorizing Cooper to file his successive habeas application) to perform EDTA and mitochondrial DNA testing. 7 The district court did no such thing; it did precisely what Cooper III suggested that it do. Between April 2, 2004 (when Cooper filed his application pursuant to our authorization) and April 1, 2005, the district court held a tutorial on testing for the presence of EDTA, 8 requested submissions on a variéty of testing-related issues which the parties provided after consulting with their experts, participated in numerous hearings and conferences over a three-month period to develop a protocol, ordered the two tests to be conducted, resolved problems that came up during the process, analyzed the results, and issued a thoughtful 159-page ruling that discusses in meticulous detail all aspects of the testing as well as each claim in Cooper’s petition.

4. The district court did the job it was required to do under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) — determine whether EDTA testing is scientifically valid. The district court concluded that the analysis by Cooper’s expert did not pass muster. There is no evidence that the methodology Cooper’s expert espoused has been, or can be, tested. No other scientists regularly perform this kind of testing. There are no industry standards regarding proper testing protocol, and we have no idea how the history of each specimen’s exposure to environmental EDTA will affect the sample and, in turn, the testing. There is no “normal” base level of EDTA. EDTA testing has only been offered to courts on two occasions, and in the one proceeding in which it was *640 challenged, Cooper’s expert was involved and both his qualification, and his EDTA testing, were rejected as biased and flawed. Thus, the district court appropriately exercised its gate-keeping discretion to exclude EDTA testing as unreliable. The effect is to leave the state superior court’s factual finding (following an evidentiary hearing) — that there was no tampering or contamination by law enforcement officers — un-refuted.

The Supreme Court has made it abundantly clear that this court may not set aside a district court’s factual findings unless those findings are clearly erroneous. Knowles v. Mirzayance, — U.S.-, 129 S.Ct. 1411, 1419 , 173 L.Ed.2d 251 (2009); Fed.R.Civ.P. 52(a). The dissent, however, assesses the EDTA evidence from scratch (including evidence that was withdrawn), and substitutes its own findings for those of the district judge — based on charts and graphs and regression analyses that it has crafted. No court, let alone this court on appellate review, may consider evidence that an expert does not stand behind, nor may we reject a district court’s findings of fact — informed by the record before that court — by manipulating data in a way that appears better and brighter to us.

In short, there is no reliable evidence of tampering.

5. In asserting that “[t]he State of California may be about to execute an innocent man,” the dissent neglects to acknowledge the evidence tying Cooper to the murders, or the fact that, after all the testing that has been done post-conviction, no forensic evidence suggests that anyone else was at the scene of the crime or was the killer.

Cooper testified at trial. He told an implausible story about what he did at the Lease house and how he left for Mexico. The jury disbelieved him. The defense theory (then as now) was that there were multiple assailants and police incompetence. Josh Ryen’s ambivalent recollections, the presence of three Caucasian men at the Canyon Corral Bar, that three Hispanics were at the ranch before the murders, that three white men were seen driving down the road from the Ryen house, how the blood spot A-41 was handled (or mishandled), the bloody coveralls that were destroyed, the possible involvement of Koon or Lee Furrow, the possibility of an Aryan Brotherhood hit gone awry, the tan T-shirt, and a blue shirt that was logged in but not located, were all known at the time of trial. The jury rejected evidence pointing to other killers.

No one else has ever been connected to the Lease house — where Cooper admitted being within an hour of the murders — and where, after the murders, were found a bloodstained rope similar to one in the Ryens’ driveway, signs of blood in the bathroom, and hairs consistent with the victims’ hair in the drain.

Cooper admitted at trial that he had prison-issued tennis shoes and never said they weren’t Pro-Keds Dude, the shoe with a distinctive pattern that was consistent with impressions in both the Lease house and the Ryen house. The prosecution never suggested that Pro-Keds Dudes were only distributed to prisons, which makes both the warden’s recollections and inmate Taylor’s immaterial; the prosecution’s theory was that there was a link between the imprints found at and near the Ryen house and in the Lease house to Cooper, who admitted staying there, did not deny wearing prison-issue shoes, and whose shoe-size fit the prints.

Cooper had a prison-issued jacket with buttons like the button found on the rug in the bedroom of the Lease house where he stayed. Prison-issue tobacco for cigarettes, which Cooper smoked, was found in *641 the Lease house and in the Ryen station wagon, where a hand-rolled butt (and a manufactured butt) consistent with his saliva were found. Hairs and hair fragments in the car were likewise consistent with Cooper’s.

Cooper tossed incriminating evidence— including his prison — issued tennis shoes and other prison clothing-over-board into the ocean from the boat on which he got a job in Ensenada after leaving the Lease house. The jury could, and we must presume that it did, infer consciousness of guilt from this conduct. No “other killer” toward whom the dissent says that “evidence points” is African-American. Cooper’s expert agreed that the person who deposited A-41 on the wall of the hallway in the Ryen house was African-American. Postconviction DNA testing, requested by Cooper, inculpates him.

No test on any item has ever pointed to any one else as the killer. This includes, in addition to A-41, tests of blood on the hatchet taken from the Lease house that matched Doug and Jessica Ryen and Chris Hughes; a bloodstained rope found in the Lease bedroom closet that was similar to a bloodstained rope found on the Ryens’ driveway; cigarette butts found in the Ryen station wagon and headboard of the bed on which Cooper slept one night in the Lease house; hairs recovered from the Ryen’s station wagon; fingerprints in the Lease house; hairs in the sink and shower at the Lease house that were consistent with Jessica’s and Doug Ryen’s; and the tan T-shirt.

The state courts found no evidence of tampering with respect to the shoe prints, cigarette butts, A-41, or DNA testing. Neither EDTA testing, mitochondrial DNA testing, nor anything else presented at the evidentiary hearing in district court, clearly and convincingly shows otherwise.

For sure, no investigation or trial is perfect. Judge McKeown makes this point in her panel concurrence, Cooper IV, 510 F.3d at 1007 , yet recognizes that the law demands affirmance. I agree with the full court’s decision that this is so.

. Cooper's February 19, 1985 judgment of conviction, and sentence to death on May 15, 1985, was affirmed by the California Supreme Court. People v. Cooper, 53 Cal.3d 771, 837 , 281 Cal.Rptr. 90, 129 (1991). The United States Supreme Court denied a petition for certiorari, Cooper v. California, 502 U.S. 1016 , 112 S.Ct. 664 , 116 L.Ed.2d 755 (1991). Cooper’s first federal application, subsequently amended and supplemented, was filed August 11, 1994, and denied August 25, 1997 following an evidentiary hearing. 92-CV-427, Doc. No. 165. We affirmed, Cooper v. Calderon, 255 F.3d 1104 (9th Cir.2001) (Cooper I); denied Cooper's PFR/PRFEB; and his petition for a writ of certiorari was denied, 537 U.S. 861 , 123 S.Ct. 238 , 154 L.Ed.2d 100 (2002). Cooper filed a second federal application on April 20, 1998 raising a claim related to the Koon statement, 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). Cooper sought to file another successor application that involved DNA testing and tampering, which we denied, Cooper v. Calderon, No. 99-71430 (9th Cir. Feb. 14, 2003, April 7, 2003) (orders noting that DNA tests to which the state and Cooper agreed do not exculpate him, nor were there newly discovered facts establishing his innocence, and denying PFR based on asserted deficiencies in the testing and tampering). 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. On October 22, 2002 Cooper filed a motion for mitochondrial DNA testing of hairs, and on June 16, 2003 for testing of the tan T-shirt, to show tampering. These were denied following an evidentiary hearing in the state court that found no tampering. Another petition in the California Supreme Court raised essentially the same claims as asserted in this application: actual innocence, tampering with evidence, failure to disclose exculpatory evidence, offering unreliable eye witness testimony of Josh Ryen, and denying Cooper effective assistance of counsel during post-conviction DNA proceedings; the supreme court denied all claims on the merits on February 5, 2004, and also denied as untimely those having to do with evidence tampering, failure to disclose exculpatory evidence, submission of false testimony to the jury, and offering Joshua Ryen's unreliable testimony. On February 6, 2004, Cooper filed another application to file a successive application, which was initially 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 when this court reheard the application en banc, Cooper v. Woodford, 358 F.3d 1117 (9th Cir.2004) (Cooper III). As authorized by Cooper III, Cooper filed his third application in the district court April 2, 2004. The district court held an evidentiary hearing at which 42 witnesses testified, and denied the writ. See Cooper IV, Appendix A. It is this ruling that is the subject of this appeal.

. All references are to Title 28 of the U.S.Code Section 2254(e)(1) provides:

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factu *638 al issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

. Section 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

. Section 2244(b)(1) provides:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

. Section 2244(b)(2) provides:

(b)(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as 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.

. Even if Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), rather than AEDPA, applies to actual innocence for purposes of gateway claims, the question would be whether, in light of all the evidence, including reliable new evidence, it is more likely than not that no reasonable juror would have found Cooper guilty beyond a reasonable doubt. Following an evidentiary hearing the district court found that, to the extent there was new evidence, it was incredible, unrelia *639 ble or unpersuasive with respect to all claims in the petition, that neither EDTA nor mitochondrial DNA tests showed innocence or undermined evidence of Cooper’s guilt, and that the showing of actual innocence was insufficient to avoid procedural bars. The evidence supports these findings, therefore Cooper cannot pass through to other claims by means of either § 2244(b)(2)(B)(i)-(ii), or Schlup .

. Cooper III, 358 F.3d at 1124 . Having noted Cooper’s position that the question of his innocence could be answered "once and for all” by mitochondrial testing of blond hairs in Jessica Ryen’s hands and testing for the presence of the preservative agent EDTA on the tan t-shirt, Cooper III also observed: "The district court may be in a position to resolve this case very quickly. As soon as Cooper’s application is filed, it should promptly order that these two tests be performed in order to evaluate Cooper’s claim of innocence.” Id.

Given the posture of the case as it was before the en banc panel, however, I disagree with the dissent’s implicit assumption that this court could have "directed” the district court to conduct the two tests. The only issue before the en banc panel was whether Cooper should be allowed to file a successive application for habeas corpus under AEDPA. 28 U.S.C. § 2244 (b)(3)(A); Cooper III, 358 F.3d at 1123 (“We hold only that Cooper has made out a prima facie case that entitles him to file a second or successive application.”). Once this court authorized the application to be filed, it was up to the district court to decide in the first instance whether any of the claims — including those involving EDTA and mitochondrial DNA testing — could go forward, and how to deal with them. See 28 U.S.C. § 2244 (b)(4). Its decision is, of course, subject to appeal and those issues are now properly before us. But our review is guided by AEDPA, not by a mistaken assumption about the scope of our prior mandate.

. As the dissent focuses only on EDTA testing, so do I.