Opposition Brief — Terrence Edwin Prince, Petitioner v. Joe A. Lizarraga, Warden

No. 18-673

In the Supreme Court of the United States

TERRENCE EDWIN PRINCE, Petitioner,

v.

JOE A. LIZARRAGA, WARDEN, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

LOUIS W. KARLIN

CHARLES S. LEE*

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6068

Charles.Lee@doj.ca.gov

*Counsel of Record

i

QUESTIONS PRESENTED

1. Whether AEDPA’s restrictions against second

or successive federal habeas petitions apply to a newly

discovered Brady claim.

2. Whether those restrictions apply when the habeas petitioner’s first federal petition was filed before

the enactment of AEDPA.

ii

TABLE OF CONTENTS

Page

Statement ................................................................... 1

Argument .................................................................... 5

Conclusion................................................................. 14

iii

TABLE OF AUTHORITIES

Page

CASES

Blackman v. Davis

909 F.3d 772 (5th Cir. 2018) .............................. 6, 9

Brady v. Maryland

373 U.S. 83 (1963) ........................................ passim

Brown v. Hatton

139 S.Ct. 841 (2019) ............................................... 6

Brown v. Muniz

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

(reprinted at Pet. Appendix 7a-40a) ........ 5, 6, 7, 10

Cress v. Palmer

484 F.3d 844 (6th Cir. 2007) ................................ 13

Daniels v. United States

254 F.3d 1180 (10th Cir. 2001) ...................... 12, 13

Douglas v. Workman

560 F.3d 1156 (2009) ............................................ 10

Evans v. Smith

220 F.3d 306 (4th Cir. 2000) .............................. 6, 9

Felker v. Turpin

518 U.S. 651 (1996) .............................................. 12

Ford v. Wainwright

477 U.S. 399 (1986) ................................................ 8

iv

TABLE OF AUTHORITIES

(continued)

Page

Graham v. Johnson

168 F.3d 762 (5th Cir. 1999) ................................ 12

Graham v. Johnson

529 U.S. 1097 (2000) ............................................ 12

In re Davenport

147 F.3d 605 (7th Cir. 1998) ................................ 12

In re Hanserd

123 F.3d 922 (6th Cir. 1997) ................................ 12

In re Magwood

113 F.3d 1544 (11th Cir. 1997) ............................ 12

In re Minarik

166 F.3d 591 (3d Cir. 1999)............................ 12, 13

In re Pickard

681 F.3d 1201 (10th Cir. 2012) .................... 6, 9, 10

In re Wogenstahl

902 F.3d 621 (6th Cir. 2018) .............................. 7, 9

Magwood v. Patterson

561 U.S. 320 (2010) .............................. 6, 10, 11, 12

Mancuso v. Herbert

166 F.3d 97 (2d Cir. 1999).................................... 12

Mancuso v. Herbert

527 U.S. 1026 (1999) ............................................ 12

v

TABLE OF AUTHORITIES

(continued)

Page

McCleskey v. Zant

499 U.S. 467 (1991) ........................................ 11, 13

Panetti v. Quarterman

551 U.S. 930 (2007) ...................................... 5, 8, 10

Pratt v. United States

129 F.3d 54 (1st Cir. 1997) .................................. 12

Pratt v. United States

523 U.S. 1123 (1998) ............................................ 12

Quezada v. Smith

624 F.3d 514 (2d Cir. 2010)................................ 6, 9

Scott v. United States

139 S.Ct. 842 (2019) ............................................... 6

Scott v. United States

890 F.3d 1239 (11th Cir. 2018) ............................ 10

Solorio v. Muniz

139 S.Ct. 608 (2018) ............................................... 6

Stewart v. United States

646 F.3d 856 (11th Cir. 2011) ................................ 8

Strickler v. Green

527 U.S. 263 (1999) .............................................. 13

Tompkins v. Sec’y, Dep’t of Corr.

557 F.3d 1257 (11th Cir. 2009) ...................... 6, 8, 9

vi

TABLE OF AUTHORITIES

(continued)

Page

United States v. Bagley

473 U.S. 667 (1985) .............................................. 14

United States v. Buenrostro

638 F.3d 720 (9th Cir. 2011) .................................. 8

United States v. Lopez

557 F.3d 1053 (9th Cir. 2009) .............................. 13

United States v. Ortiz

136 F.3d 161 (D.C. Cir. 1998) ........................ 12, 13

United States v. Villa-Gonzalez

208 F.3d 1160 (9th Cir. 2000) .............................. 12

vii

TABLE OF AUTHORITIES

(continued)

Page

STATUTES

28 U.S.C. § 2244(b) ............................................ passim

28 U.S.C. § 2244(b)(2) .......................................... 10, 11

28 U.S.C. § 2244(b)(2)(B) ............................................. 7

28 U.S.C § 2244(b)(2)(B)(i) .......................................... 9

28 U.S.C. § 2244(b)(3) .................................................. 5

1

STATEMENT

1. In 1980, petitioner Terrence Prince and his accomplice, Edward Williams, attempted to rob a checkcashing business inside a Los Angeles takeout restaurant. C.A. Excerpts of Record (ER) 22-24. While

Prince searched the check-cashing booth, a struggle

broke out in the kitchen between Williams and the

booth’s owner, Bruce Horton, an ex-police officer who

was carrying a concealed handgun. ER 22, 24-25. Williams wrestled Horton to the ground and pinned him

against a refrigerator. ER 25. Prince stepped out of

the booth, walked towards them, and shot Horton. Id.

Carol Croce, the owner of the restaurant, grabbed

Prince’s arm. Id. Prince shoved Croce aside and shot

Horton again. Id. Horton, now mortally wounded,

fired two shots in return, one of which struck Williams. Id. Prince and Williams fled. Id. Horton was

pronounced dead minutes later. ER 26.

A Los Angeles County jury convicted Prince of firstdegree murder with special circumstances (commission during a robbery and personal use of a firearm).

Pet. App. 44a. The verdict was based on direct and

circumstantial evidence which included the following:

Croce, who stood next to Prince when he shot Horton,

repeatedly identified him as the shooter, ER. 26; Keith

Sarazinski, a restaurant employee, identified Prince

as the gunman who forced his way into the building

just before the shooting, ER 23; John McCarty, who

was working in an office nearby, heard the gunshots

and saw two men resembling Prince and Williams get

into a car and drive off, ER 28; Rita Tanner, an emergency room clerk, recalled that Prince appeared nervous and paranoid when he brought Williams into the

emergency room shortly after the shooting, that

Prince refused to answer any questions, and that he

2

immediately left, ER 28-29; and a search of Prince’s

home produced a jacket matching the one worn by the

shooter and photographs of Prince holding a .45-caliber handgun that would have been capable of firing

the .45-caliber bullets that killed Horton, ER 30-31.

See also Pet. App. 2a-3a.

The trial court sentenced Prince to life in prison

without the possibility of parole. Pet. App. 2a. The

state court of appeal affirmed the judgment, and the

California Supreme Court denied review in 1984. Id.

at 3a.

2. In 1991, before Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Prince filed a federal habeas petition, which

the district court denied on the merits. Pet. App. 3a.

The court of appeals affirmed. Id.

In 2007, Prince filed a second state habeas petition.

Pet. App. 3a. During the ensuing litigation, the State

turned over police interview notes. Id. The notes had

been disclosed before trial, but they now included an

additional page. Id. That page summarized an interview with Nelida Walsh, who lived across the street

from the restaurant. Id. at 3a-4a. According to the

notes, Walsh was walking up the front stairs to her

apartment building on the day of the murder when she

heard three gunshots. ER 38. She turned around and

saw a man who resembled neither Prince nor Williams

standing outside the front door of the restaurant. Id.

The man pointed either a rifle or a shotgun into the

restaurant before moving the weapon to a “port arms”

position, with the barrel pointed upward. Id. After

seeing the man, Walsh turned and continued up the

stairs. ER 38-39.

3

Prince amended his habeas petition to allege that

at the time of trial the prosecution had violated its obligation under Brady v. Maryland, 373 U.S. 83 (1963),

to disclose material exculpatory evidence. Pet. App.

3a-4a. Over the course of forty-two days, the superior

court held an evidentiary hearing on the Brady claim

as well as two other claims. ER 93-94. Walsh testified

at the hearing that she heard a gunshot, turned, and

saw the back of a man facing the restaurant door from

the sidewalk. ER 39. She was running upstairs to her

apartment when she heard a second shot, and she was

inside when she heard a third shot. Id. The man had

been holding a weapon, but Walsh was unable to describe how he was pointing it. ER 39-40.

A firearms expert called by Prince testified that

Horton could have been shot by someone standing outside the restaurant, where Walsh had placed the man

with the rifle. ER 40, 42. His opinion was based on

the location of the expended .45-caliber shell casings

and his belief that the doorway was in the corner of

the restaurant rather than in the center of the restaurant’s wall. ER 40-42, 58. Prince’s expert also testified that there were three long-barreled guns

available in 1980 that were capable of firing the .45caliber bullets that killed Horton. ER 43.

A firearms expert called by the State testified that,

consistent with the eyewitness trial testimony, the

shooter was inside the restaurant. ER 43-44. He

based his opinion on the trajectory of the bullets that

caused Horton’s wounds and Croce’s description of

how Horton and Williams were positioned. Id. He explained that, because Prince’s expert used only the location of the spent shell casings to determine the

position of the shooter, which was not the typical practice of firearms experts, his opinion was unreliable.

4

ER 44. Moreover, the location of the spent casings was

consistent with Croce’s description of Prince’s position

at the time of the shooting. Id. The State’s expert also

testified that he was certain, based on his examination

of the firing pin, extractor, and ejector markings on

the casings, that Horton had been shot with a Colt .45type semiautomatic handgun rather than a long barreled firearm. ER 44-45.

Following the evidentiary hearing, the state trial

court found that the failure to disclose Walsh’s statement was a material Brady violation and granted

Prince’s habeas petition. Pet. App. 4a; see ER 102-104.

The California Court of Appeal reversed. Pet. App.

4a; ER 67. Noting that the superior court had not

made any factual findings as to whether it believed or

disbelieved the evidence, had not resolved any evidentiary conflicts, and had not weighed or compared the

trial and evidentiary-hearing testimony, the court of

appeal independently reviewed Prince’s Brady claim.

ER 55. It observed that Walsh’s statement about the

unidentified man was no more exculpatory than inculpatory because the evidence was consistent with his

having participated as an additional accomplice who

was not the sole shooter. ER 57. The court also reasoned that the opinion of Prince’s expert was “effectively eviscerate[ed]” by the photographic evidence

refuting his premise about the position of the restaurant’s door, ER 58, while the opinion of the State’s expert was scientifically grounded and consistent with

Croce’s trial testimony, ER 61. The court of appeal

concluded that, in light of the strong evidence that

Prince shot Horton inside the restaurant, Walsh’s

statement was not material for Brady purposes. ER

61-63.

5

The California Supreme Court denied review. Pet.

App. 4a.

3. Prince then filed a second federal habeas petition alleging the same Brady violation. Pet. App. 4a.

The district court dismissed the petition as unauthorized because Prince’s first federal petition was adjudicated on the merits and Prince had not sought or been

granted authorization under 28 U.S.C. § 2244(b)(3) to

file a “second or successive” petition. Id. The district

court rejected Prince’s contentions that newly discovered Brady claims are exempt from that statutory restriction on second or successive petitions and that

applying the restriction to Prince’s first federal habeas

petition filed after AEDPA’s enactment would give it

impermissible retroactive effect. Pet. App. 56a-57a &

n.7.

The court of appeals affirmed. Pet. App. 1a-6a. Applying the reasoning of its concurrently filed opinion

in Brown v. Muniz, 889 F.3d 661 (9th Cir. 2018) (reprinted at Pet. App. 7a-40a), the court held that second or successive petitions alleging newly discovered

Brady claims are not exempt from AEDPA’s gatekeeping restrictions. Pet. App. 5a-6a. The court also held,

consistent with longstanding circuit precedent, that

applying those restrictions in this case would not give

them impermissible retroactive effect. Pet. App. 5a.

ARGUMENT

Prince argues that AEDPA’s restrictions on second or successive federal habeas petitions do not apply

to newly discovered Brady claims. Pet. 9-19. But the

court of appeals’ rejection of that contention is consistent with the decisions of every lower court that has

considered the question and with this Court’s reasoning in Panetti v. Quarterman, 551 U.S. 930 (2007), and

6

Magwood v. Patterson, 561 U.S. 320 (2010). As Prince

points out, the lower courts have divided over whether

AEDPA’s restrictions on second or successive federal

petitions apply where, as here, the prisoner’s first federal petition was filed before AEDPA was enacted.

But the Court has previously declined to address that

issue, which now affects a small and diminishing number of cases. Moreover, the application of pre-AEDPA

abuse-of-the-writ standards would produce the same

result in this case. There is no reason for further review.

1. a. There is no disagreement among the circuits

that a new habeas petition presenting Brady claims

like Prince’s, which were reasonably unknown to the

petitioner at the time an earlier petition was filed, is

“second or successive” within the meaning of 28 U.S.C.

§ 2244(b). See Blackman v. Davis, 909 F.3d 772, 778779 (5th Cir. 2018), cert. denied, No. 18-7229 (Feb. 19,

2019); Brown v. Muniz, 889 F.3d 661 (9th Cir. 2018)

(reprinted at Pet. App. 7a-40a), cert. denied, 139 S. Ct.

841 (2019) (No. 18-6759); In re Pickard, 681 F.3d 1201,

1205 (10th Cir. 2012); Quezada v. Smith, 624 F.3d 514,

520 (2d Cir. 2010); Tompkins v. Sec’y, Dep’t of Corr.,

557 F.3d 1257, 1259-1260 (11th Cir. 2009); Evans v.

Smith, 220 F.3d 306, 323-324 (4th Cir. 2000). This

Court has recently declined to review the question in

several cases. See Blackman, supra (No. 18-7229);

Scott v. United States, 139 S.Ct. 842 (2019) (No. 186783); Brown v. Hatton, 139 S.Ct. 841 (2019) (No. 186759) (seeking review of Brown v. Muniz, supra);

Solorio v. Muniz, 139 S.Ct. 608 (2018) (No. 18-6396)

(seeking review of decision issued same day as and applying Brown). There is no reason for a different result here.

7

As the court below recognized in Brown, the position adopted by the lower courts follows from the plain

language of the statute. Pet. App. 21a-22a (reprinting

Brown v. Muniz, 889 F.3d at 668). Under Section

2244(b)(2)(B), a claim presented for the first time in a

second or subsequent federal habeas petition must be

dismissed unless (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 the light of all the

evidence, would establish by clear and convincing evidence that the petitioner would not otherwise have

been convicted. A premise of the first requirement is

that “the factual predicate must have existed previously, and the defense must not have known about it.”

Pet. App. 21a. That requirement “essentially defines

a Brady-type event,” in which the existence of the facts

underlying the claim was reasonably unknown to the

petitioner at the time of trial proceedings and, as relevant here, the filing of a first federal petition. Id. at

21a-22a.

Because section 2244(b)(2)(B) sets out the requirements a petitioner must meet in order to proceed with

such a claim in a second or subsequent petition, the

circumstance that the claim was previously unknown

through no fault of the petitioner necessarily cannot

by itself prevent the claim from being treated as “second or successive.” See In re Wogenstahl, 902 F.3d

621, 627 (6th Cir. 2018) (“if the claims raised by the

petitioner fall within the scenario addressed by §

2244(b)(2)(B), then the petition is second or successive

and the claims must satisfy that section”). Nothing in

the statutory language suggests that Congress intended for newly discovered Brady claims to be analyzed differently from any other claim that relies on

newly discovered evidence.

8

b. This Court’s reasoning in Panetti v. Quarterman

does not lead to a different conclusion. See Pet. 11-15.

Panetti held that a capital prisoner’s second-in-time

habeas petition challenging his competency for execution under Ford v. Wainwright, 477 U.S. 399 (1986),

was not “second or successive” because the Ford claim

was not legally ripe until after the petitioner’s first habeas petition had been adjudicated on the merits.

Panetti, 551 U.S. at 943-945. In that “unusual” circumstance, AEDPA does not require “unripe (and, often, factually unsupported) claims to be raised as a

mere formality, to the benefit of no party,” in order to

avoid the gatekeeping restrictions against second or

successive petitions. Id. at 945-947.

Panetti’s distinction between legally ripe and unripe claims rests on whether the claim even existed at

the time of the first petition, not on whether its factual

predicate was reasonably discoverable. See United

States v. Buenrostro, 638 F.3d 720, 725-726 (9th Cir.

2011) (Panetti applies to claims “based on events that

do not occur until a first petition is concluded” but not

to claims in which the factual predicate existed but

was not discovered at the time of the first petition);

Stewart v. United States, 646 F.3d 856, 863 (11th Cir.

2011) (claim not second or successive because it was

not “based on facts that were merely undiscoverable”).

In contrast, the constitutional violation underlying a

Brady claim generally “occurs at the time the State

should have disclosed the exculpatory evidence—i.e.,

before trial.” Pet. App. 31a. “The reason the Ford

claim was not ripe at the time of the first petition in

Panetti is not that evidence of an existing or past fact

had not been uncovered at that time.” Tompkins, 557

F.3d at 1260. Rather, “no Ford claim is ever ripe at

the time of the first petition because the facts to be

9

measured or proven—the mental state of the petitioner at the time of execution—do not and cannot exist when the execution is years away.” Id. In other

words, “Panetti’s limited exception to § 2244(b) comports with the plain text of § 2244(b)(2)(B)(i) ... [because] an unripe claim involves no previously existing

‘factual predicate’ at all.” Pet. App. 27a.

Every court of appeals to have decided this issue

has either explicitly or implicitly concluded that a

Brady claim is generally legally ripe at the time of

trial, even though important underlying facts are (by

definition) normally unknown to the defense at that

time. See Blackman, 909 F.3d at 778-779 (Brady

claim subject to AEDPA’s gatekeeping requirements

because it relied on “precisely such previously undiscovered facts” as described in § 2244(b)(2)(B)(i)); Wogenstahl, 902 F.3d at 627 (petitioner’s “claims were not

unripe at the time he filed his initial petition because

the purported Brady violations … had already occurred when he filed his petition, although [he] was

unaware of these facts”); Pickard, 681 F.3d at 1205

(Brady claims were “certainly second or successive …

because they assert[ed] a basis for relief from the underlying convictions”); Quezada, 624 F.3d at 520 (applying AEDPA’s gatekeeping requirements to Brady

claim); Tompkins, 557 F.3d at 1260 (“The violation of

constitutional rights asserted in [a Brady claim] occur[s], if at all, at trial or sentencing and [is] ripe for

inclusion in a first petition”); Evans, 220 F.3d at 323

(“the standards that Congress has established for the

10

filing of second or successive petitions account for precisely the type of [Brady claim] Evans alleges”). 1 Because Prince’s Brady claim was legally ripe at the time

of his first petition, Panetti is inapposite.

c. Prince argues that the phrase “second or successive” in Section 2244(b) must be interpreted in light of

this Court’s decisions, including those pre-dating

AEDPA. Pet. 11-12; see Panetti, 551 U.S. at 943-944.

He argues that under pre-AEDPA authority a claim

would not have been considered an abuse of the writ,

and therefore would not have been barred if raised in

a second or successive petition, unless the prisoner

had a “fair opportunity” to raise the claim earlier. See

Pet. 10 (citing Magwood v. Patterson, 561 U.S. 320,

343 (Breyer, J., concurring); id. at 349 (Kennedy, J.,

dissenting)).

“While AEDPA’s provisions are inspired by and

borrow heavily from” abuse-of-the-writ principles,

courts “are bound by AEDPA itself, not the judicial

standard it superseded.” Pet. App. 33a. The “fair op1 The Tenth Circuit came to a different result on particular facts

in Douglas v. Workman, 560 F.3d 1156, 1192-1193 (2009). As the

court below observed in Brown, the Douglas court “acknowledged

that the case was ‘unusual’ and even ‘unique’ for several reasons

that set it apart from the typical second-in-time petition based on

a Brady claim.” Pet. App. 33a (reprinting Brown, 889 F.3d at 673

n. 10). And in its later decisions in Case, 731 F.3d at 1027-1028,

and Pickard, 681 F.3d at 1205, the Tenth Circuit too applied Section 2244(b)(2) to Brady claims. Similarly, while a panel of the

Eleventh Circuit recently criticized that court’s precedent on this

point, it acknowledged the contrary law of the circuit, and the full

court declined to grant en banc review to revisit the issue. Scott

v. United States, 890 F.3d 1239, 1253-1258 (11th Cir. 2018), cert.

denied, 139 S.Ct. 842 (2019) (No. 18-6783).

11

portunity” rule Prince suggests would permit consideration of any claim based on facts of which the petitioner was previously reasonably unaware. 2 That,

however, “would considerably undermine—if not render superfluous—the exceptions to dismissal set forth

in § 2244(b)(2),” which treat a finding that “the factual

predicate for [a] claim could not have been discovered

previously through the exercise of due diligence” as

only one factor in determining whether the claim may

be raised. See Magwood, 561 U.S. at 335. Because the

statute expressly addresses claims that were previously undiscoverable, the “fair opportunity” principle

cannot govern such claims. Rather, as this Court has

suggested, it may inform applications of Section

2244(b) that AEDPA does not speak to directly. See

id. at 346 (Kennedy, J., dissenting) (consideration

based on “fair opportunity” principle “can occur where

the claim was not yet ripe at the time of the first petition … or where the alleged violation occurred only after the denial of the first petition”); see also id. at 343

(Breyer, J., concurring). That is not the situation here.

2. Prince also argues that the Court should resolve

a conflict among the lower courts about whether Section 2244(b) applies to a second or subsequent petition

filed after AEDPA when the petitioner’s first petition

was filed before that Act took effect. Pet. 19-32. As he

points out, the Third, Sixth, Tenth, and D.C. Circuits

2 Prince offers no basis for limiting his rule to Brady claims.

PreAEDPA law generally permitted consideration of any claim based

on evidence that the petitioner reasonably failed to discover earlier. See McCleskey v. Zant, 499 U.S. 467, 487-488 (1991) (abuseof-the-writ principles recognized new discovery of evidence as acceptable reason for failing to raise claim earlier). One purpose of

AEDPA was to tighten that rule.

12

have held that AEDPA does not apply in that circumstance, based on the presumption against retroactivity. See In re Minarik, 166 F.3d 591, 595-599 (3d Cir.

1999); In re Hanserd, 123 F.3d 922, 930-932 (6th Cir.

1997); Daniels v. United States, 254 F.3d 1180, 11871188 (10th Cir. 2001); United States v. Ortiz, 136 F.3d

161, 165-166 (D.C. Cir. 1998). The First, Second,

Fifth, Seventh, Ninth, and Eleventh Circuits instead

apply AEDPA’s restrictions to any petition filed after

the Act became effective. See Pratt v. United States,

129 F.3d 54, 58-60 (1st Cir. 1997); Mancuso v. Herbert,

166 F.3d 97, 101 (2d Cir. 1999); Graham v. Johnson,

168 F.3d 762, 781-786 (5th Cir. 1999); In re Davenport,

147 F.3d 605, 608 (7th Cir. 1998); United States v.

Villa-Gonzalez, 208 F.3d 1160, 1163 (9th Cir. 2000); In

re Magwood, 113 F.3d 1544, 1552-1553 (11th Cir.

1997).

This conflict is longstanding, and the Court has

previously denied review in cases that addressed the

issue. See Graham v. Johnson, 529 U.S. 1097 (2000)

(No. 98-10002); Mancuso v. Herbert, 527 U.S. 1026

(1999) (No. 98-9305); Pratt v. United States, 523 U.S.

1123 (1998) (No. 97-7817). 3 AEDPA was enacted in

1996, and the disagreement could now affect only a

small and diminishing class of potential federal petitioners. There is no reason for the Court to take the

issue up now.

3 The Court has also decided cases involving application of Section 2244(b) where the petitions at issue straddled AEDPA’s enactment, without identifying any retroactivity issue. See Magwood, 561 U.S. at 326; Felker v. Turpin, 518 U.S. 651, 655-656

(1996); see also Pratt, 129 F.3d at 58 (“if pre-AEDPA jurisprudence somehow attached to an entire course of post-conviction

proceedings by virtue of a prisoner’s having filed a pre-enactment

petition at some point along the way, then the Court’s opinion in

Felker would be drained of all meaning”).

13

In any event, resolution of the conflict would not

affect the outcome of Prince’s case. Those circuits that

have adopted Prince’s view recognize that a petitioner

seeking consideration of a second or subsequent petition must still satisfy pre-AEDPA abuse-of-the-writ

principles. Cress v. Palmer, 484 F.3d 844, 852 (6th

Cir. 2007); Minarik, 166 F.3d at 602; Daniels, 254 F.3d

at 1198-1199; Ortiz, 136 F.3d at 167. Before AEDPA,

a Brady claim raised in a second or subsequent petition would have been rejected as abusive if the petitioner failed to establish materiality. See Strickler v.

Green, 527 U.S. 263, 296 (1999) (non-material Brady

claim would not have survived cause-and-prejudice

standard for overcoming procedural default); McCleskey, 499 U.S. at 493-494 (cause-and-prejudice standard for these purposes derived from procedural default

standard); see also United States v. Lopez, 557 F.3d

1053, 1064 (9th Cir. 2009) (under abuse principles

“federal courts could reach the merits of second-intime Brady claims only when the suppressed evidence

was material”). Prince’s Brady claim would be barred

under that standard.

As the California Court of Appeal correctly concluded, the missing notes of Walsh’s statement were

not material. ER 56-63. Eyewitnesses established at

trial that Prince shot Horton inside the restaurant,

and circumstantial evidence also strongly tied him to

the shooting. Pet. App. 2a-3a; ER 23-29, 56-57.

Walsh’s statement that she saw someone who has

never been identified holding either a rifle or a shotgun outside the building did not undermine the trial

evidence. ER 57. And the opinion of the State’s firearms expert during the state habeas evidentiary hearing reaffirmed the account of the shooting given at

trial. ER 43-44, 61. In contrast, the opinion of Prince’s

state habeas firearms expert, that the person who shot

14

Horton could have been standing in the doorway, was

undermined by photographs contradicting the expert’s

premise about the position of the door. ER 58. There

is no reasonable probability that the result of Prince’s

trial would have been different had Walsh’s statement

been disclosed earlier. See United States v. Bagley,

473 U.S. 667, 682 (1985) (failure to disclose evidence

is material under Brady “only if there is a reasonable

probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have

been different”). Prince’s current habeas petition

would therefore have been barred even under preAEDPA law.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

LOUIS W. KARLIN

CHARLES S. LEE

Deputy Attorneys General

April 8, 2019