Petition for Writ of Certiorari — Saul Cervantes, Petitioner v. M. D. Biter, Warden

No. ____________

IN THE

SAUL CERVANTES,

Petitioner,

v.

M.D. BITER, WARDEN,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

AMY M. KARLIN

Interim Federal Public Defender

Central District of California

JONATHAN D. LIBBY*

Deputy Federal Public Defender

*Counsel of Record

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-2905

Facsimile: (213) 894-0081

Jonathan_Libby@fd.org

Attorneys for Petitioner

QUESTIONS PRESENTED

Petitioner, Saul Cervantes, is serving multiple consecutive life sentences,

plus an additional 35 years to life for sentence enhancements, for his convictions on

three counts of attempted premeditated murder. He has always maintained that he

is innocent of the crimes and that, contrary to the state’s arguments and the

decision of the California Court of Appeal, it was the driver of a different vehicle

who shot the victims without his prior knowledge, and that he (Cervantes) did not

have a gun. Although petitioner’s convictions were affirmed in 2005, his pro se

federal habeas corpus petition was not filed until 2013. In order to overcome the

statute of limitations bar, he presented evidence to show he is “actually innocent” of

the crimes of which he was convicted. Specifically, petitioner submitted a sworn

declaration from one of the victims of the shooting, whose testimony was most

heavily relied on by the California Court of Appeal in affirming Cervantes’s

convictions—and who is now an attorney—indicating that Cervantes did not shoot

him or anyone and did not have a gun. Nevertheless, the district court refused to

hold an evidentiary hearing and concluded that Cervantes failed to demonstrate

that he was entitled to pass through the actual innocence gateway. It dismissed the

petition as untimely and denied a certificate of appealability (COA). The Ninth

Circuit also denied a COA. Thus, the questions presented are:

1. Whether it was at least debatable among jurists of

reasons that petitioner established actual innocence,

or at least warranted an evidentiary hearing on the

claim, to overcome the untimeliness of his habeas

corpus petition, for purposes of granting a certificate of

appealability.

2. Whether the Ninth Circuit’s decision to deny a

certificate of appealability without any analysis or

explanation for its decision at all was so arbitrary and

capricious that it deprived Petitioner of his right to

due process under the Fifth Amendment or of his right

to meaningful review in this Court.

i

LIST OF PARTIES

1. Saul Cervantes, Petitioner

2. M.D. Biter, Warden, Respondent

STATEMENT OF RELATED CASES

People v. Saul Cervantes, Los Angeles County Super. Ct., No. PA042004

People v. Saul Cervantes, Cal. Ct. App., Second Dist. Div. 8, No. B168802

People v. Saul Cervantes, Cal. Sup. Ct., No. S130514

Saul Cervantes v. M.D. Biter, Warden, U.S. Dist. Ct., Central Dist. Cal., No. CV 134880-R (SS)

Saul Cervantes v. M.D. Biter, Warden, U.S. Ct. App. Ninth Cir., No. 14-56205

Saul Cervantes v. M.D. Biter, Warden, U.S. Ct. App. Ninth Cir., No. 19-55168

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................... i

LIST OF PARTIES ........................................................................................................ii

STATEMENT OF RELATED CASES .......................................................................... ii

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 2

STATUTORY PROVISIONS INVOLVED .................................................................... 2

STATEMENT OF THE CASE....................................................................................... 3

REASONS FOR GRANTING THE WRIT .................................................................... 9

I.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE

ACTUAL INNOCENCE CLAIM PETITIONER RAISED TO EXCUSE

THE UNTIMELINESS OF HIS PETITION PURSUANT TO SCHLUP

V. DELO WAS SUFFICIENT TO OVERCOME THE LOW BAR

NECESSARY FOR GRANTING A CERTIFICATE OF

APPEALABILITY. ............................................................................................ 10

II.

THE COURT SHOULD GRANT CERTIORARI TO CLARIFY THE

STANDARD FOR A CIRCUIT COURT’S EXPLANATION WHEN IT

DENIES A CERTIFICATE OF APPEALABILITY. ........................................ 23

CONCLUSION............................................................................................................. 26

APPENDIX

Ninth Circuit Order Denying Certificate of Appealability ................................... A1

Report and Recommendation of United States Magistrate Judge ............. A2 - A31

Declaration of Arash Zad-Behtooie ............................................................ A32 - A33

Order Accepting Findings, Conclusions and Recommendations of

United States Magistrate Judge ................................................................ A34 - A35

Judgment .............................................................................................................. A36

District Court Order Denying Certificate of Appealability ...................... A37 - A42

California Court of Appeal Decision .......................................................... A43 - A62

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Bannister v. Delo,

100 F.3d 610 (8th Cir. 1996) ....................................................................................... 18

Buck v. Davis,

137 S. Ct. 759 (2017), 2016 WL 4073689 ................................................................... 11

Carriger v. Stewart,

132 F.3d 463 (9th Cir. 1997) ................................................................................. 12, 13

Clark v. Cate,

581 Fed. Appx. 654 (9th Cir. June 27, 2014) .............................................................. 22

Encino Motorcars, L.L.C. v. Navarro,

136 S. Ct. 2117 (2016) ........................................................................................... 24, 25

Gall v. United States,

552 U.S. 38 (2007) ....................................................................................................... 24

Harrington v. Richter,

562 U.S. 86 (2011) ....................................................................................................... 10

Herrera v. Collins,

506 U.S. 390 (1990) ..................................................................................................... 12

In re Sealed Case,

527 F.3d 188 (D.C. Cir. 2008) ..................................................................................... 24

Jaramillo v. Stewart,

340 F.3d 877 (9th Cir. 2003) ....................................................................................... 22

Johnson v. Knowles,

541 F.3d 933 (9th Cir. 2008) ....................................................................................... 22

Larsen v. Soto,

730 F.3d 930 (9th Cir. 2013) ....................................................................................... 22

Lee v. Lampert,

653 F.3d 929 (9th Cir. 2011) ....................................................................................... 12

iv

TABLE OF AUTHORITIES

Page(s)

Majoy v. Roe,

296 F.3d 770 (9th Cir. 2002) ....................................................................................... 22

Miller-El v. Cockrell,

537 U.S. 322 (2003) ..................................................................................... 9, 10, 11, 12

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) ..................................................................................................... 6

Schlup v. Delo,

513 U.S. 298 (1995) ..................................................................................... 7, 12, 13, 18

Schriro v. Landrigan,

550 U.S. 465 (2007) ..................................................................................................... 21

Sistrunk v. Armenakis,

292 F.3d 669 (9th Cir. 2002) ....................................................................................... 13

Souliotes v. Hedgpeth,

2012 U.S. Dist. LEXIS 58689 (E.D. Cal. April 26, 2012) .......................................... 22

Townsend v. Sain,

372 U.S. 293 (1963) ..................................................................................................... 21

United States v. Blackie,

548 F.3d 395 (6th Cir. 2008) ....................................................................................... 24

United States v. Carty,

520 F.3d 984 (9th Cir. 2008) ....................................................................................... 24

United States v. Lewis,

424 F.3d 239 (2d Cir. 2005)......................................................................................... 24

United States v. Parks,

823 F.3d 990 (11th Cir. 2016) ..................................................................................... 24

Federal Statutes

28 U.S.C. § 1254(1) ............................................................................................................. 2

28 U.S.C. § 1291 ................................................................................................................. 2

v

TABLE OF AUTHORITIES

Page(s)

28 U.S.C. § 2241 ................................................................................................................. 2

28 U.S.C. § 2253 ............................................................................................................. 2, 9

28 U.S.C. § 2254 ......................................................................................................... 2, 6, 7

Antiterrorism and Effective Death Penalty Act (AEDPA) ........................................... 7, 21

State Statutes

California Penal Code § 187(a) ........................................................................................... 3

California Penal Code § 664................................................................................................ 3

California Penal Code § 12022.53................................................................................... 3, 4

Other Authorities

http://cdn.ca9.uscourts.gov/datastore/uploads/guides/habeas_training/2016

.10.27%20materials%20revised_2.pdf (last visited Feb. 13, 2020) ............................ 11

Sup. Ct. R. 13....................................................................................................................... 2

Sup. Ct. R. 10(a) ................................................................................................................ 10

vi

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No.____________

SAUL CERVANTES,

PETITIONER,

V.

M.D. BITER, WARDEN,

RESPONDENT

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Petitioner, Saul Cervantes, respectfully petitions this Court for a writ of

certiorari to review the order of the United States Court of Appeals for the Ninth

Circuit denying a certificate of appealability in his case.

OPINION BELOW

On December 20, 2019, the Ninth Circuit issued an unpublished order

denying Cervantes’s request for a certificate of appealability (COA). Pet. App. A1.

That appeal arose from Cervantes’s district court case, which concluded after the

district court issued its order adopting the findings, conclusions, and

recommendation of the United States Magistrate Judge (Pet. App. A34-A35), its

1

judgment dismissing Cervantes’s 28 U.S.C. § 2254 petition as untimely (Pet. App.

A36), and its order denying a certificate of appealability (Pet. App. A37-42).

JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 2241 & 2254. The

Ninth Circuit had jurisdiction under 28 U.S.C. §§ 1291 and 2253. This Court has

jurisdiction under 28 U.S.C. § 1254(1). This petition is timely filed pursuant to Sup.

Ct. R. 13. Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2253 states, in pertinent part:

(a)

In a habeas corpus proceeding or a proceeding under section

2255 before a district judge, the final order shall be subject to

review, on appeal, by the court of appeals for the circuit in

which the proceeding is held.

(b)

There shall be no right of appeal from a final order in a

proceeding to test the validity of a warrant to remove to

another district or place for commitment or trial a person

charged with a criminal offense against the United States, or

to test the validity of such person's detention pending removal

proceedings.

(c)

(1)

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from -

(2)

(A)

the final order in a habeas corpus proceeding in

which the detention complained of arises out of

process issued by a State court; or

(B)

the final order in a proceeding under section

2255.

A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

2

substantial showing of the denial of a constitutional

right.

(3)

The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2).

STATEMENT OF THE CASE 1

In May 2003, a Los Angeles County Superior Court jury convicted Petitioner

Saul Cervantes of three counts of willful, deliberate, and premeditated attempted

murder in violation of California Penal Code (“P.C.”) §§ 664/187(a) for attacks on

victims Stephanie Webb (count 1), Arash Zad-Behtooie (count 2), and Arturo

Cisneros (count 3). (Clerk’s Transcript (“CT”) 202-04, 207-09; Reporter’s Transcript

(“RT”) 1205-11). 2 As to count 1, the jury also found it to be true that Petitioner used

a firearm within the meaning of P.C. § 12022.53(b), personally and intentionally

discharged a firearm within the meaning of P.C. § 12022.53(c), and personally and

intentionally discharged a firearm causing great bodily injury within the meaning

of P.C. § 12022.53(d). (CT 202, 207-08; RT 1206-07). As to counts 2 and 3, the jury

found the P.C. § 12022.53(b) allegations true but the P.C. § 12022.53(c-d)

allegations not true. (CT 203-04, 208-09; RT 1207-09). The trial court sentenced

Petitioner to three consecutive terms of life imprisonment, with an additional

1 Most of the facts are taken from the Report and Recommendation of the

United States Magistrate Judge. Pet. App. A2-A31.

2 The Clerk’s Transcript and Reporter’s Transcript of the state court

proceedings were lodged in the United States District Court.

3

twenty-five years to life for the P.C. § 12022.53(d) enhancement and an additional

10 years for the count 2 P.C. § 12022.53(b) enhancement. (CT 227-31; RT 1804-06). 3

At trial, the jury heard evidence that shortly after midnight on July 21, 2002,

a group of friends—Chris Awada, Arash Zad-Behtooie, Stephanie Webb, Arturo

Cisneros, Carlos Barajas, and an individual named Joaquin—drove in two vehicles

to a party in Pacoima. (RT 396-97, 409-10, 437). Awada drove Cisneros in the first

vehicle, while Zad-Behtooie drove the second vehicle in which Webb, Barajas, and

Joaquin were passengers. (RT 397, 410, 437). Awada parked his vehicle a couple of

blocks away from the party, and Zad-Behtooie parked behind Awada. (RT 411).

Cisneros and Joaquin exited the vehicles and began walking to the party while

Awada remained in his vehicle to take the face plate off of his stereo, Webb moved

to the driver’s side of Zad-Behtooie’s vehicle to turn off the stereo, and Zad-Behtooie

stood by the rear driver’s side door of his vehicle. (RT 397-98, 411, 413, 438-39).

While these activities took place, an SUV and a red hatchback drove up and

stopped alongside the parked vehicles, facing the opposite direction from Awada

and Zad-Behtooie’s vehicles. (RT 411-12, 438-40). The SUV was in front and the

hatchback, which was driven by Petitioner, stopped behind the SUV and alongside

Zad-Behtooie’s vehicle. (RT 412-14, 450-53, 460-61, 755). The SUV’s occupants

3 Petitioner appealed his conviction and sentence to the California Court of

Appeal, which affirmed the judgment in an unpublished opinion filed December 9,

2004. Pet. App. A43-62 [Cal. Court of Appeal Decision]. Petitioner then filed a

petition for review in the California Supreme Court. On March 2, 2005, the

California Supreme Court denied the petition. Pet. App. A5.

4

began arguing with Cisneros and Joaquin, telling them “you guys gotta get out of

here. You can’t be here. Who are you guys? And stuff like that.” (RT 415). The

hatchback’s occupants were yelling too. (RT 413-14). According to Webb, someone

in the hatchback said “‘Fuck you and your life. This is Pacoima[,]’” while someone

else in either the hatchback or SUV asked “‘Where are you from?’” (RT 439-40).

Zad-Behtooie testified that he focused on the argument between the SUV’s

occupants, Cisneros and Joaquin, and he saw the SUV’s driver pulled out a gun and

said “‘You guys got to get out of here.’” (RT 418-19). After the SUV driver drew his

weapon, Zad-Behtooie’s friends agreed to leave and started to walk away when the

SUV driver started shooting. (RT 419-20). Zad-Behtooie did not pay any attention

to the hatchback, and once the SUV driver pulled the gun out, Zad-Behtooie’s

attention was completely focused on the SUV and he “didn’t even think of looking at

the other car anymore.” (Id.). Accordingly, Zad-Behtooie could not identify the

hatchback’s driver, he did not see anyone in the hatchback with a gun, and he never

heard any shots from the hatchback. (RT 422-23, 433).

Webb testified that Petitioner’s vehicle was approximately eight feet away

from her and that she saw Petitioner, who was wearing a blue Georgetown jacket,

pull a gun out and extend his right hand toward her before she turned away,

someone pushed her down, and she heard eight to ten gunshots. (RT 351-52, 44144, 449, 471-72, 482). Zad-Behtooie was shot in the stomach, Webb was shot in her

5

left ankle, and one of the shots went through Cisneros’s pants, making a hole in the

pants without injuring Cisneros. (RT 339, 356, 420-21, 423-24, 443, 455-56). 4

Effective June 26, 2013, Petitioner Saul Cervantes, proceeding pro se, filed a

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). Pet.

App. A3. The Petition raised nine grounds for federal habeas relief, arguing, inter

alia, that there was insufficient evidence to support his attempted murder

convictions, that he received ineffective assistance of both trial and appellate

counsel, and that he is actually innocent of the crimes. Pet. App. A6-A7.

Respondent filed a Motion to Dismiss the Petition as untimely, and on June 10,

2014, the district court granted the Motion and entered Judgment denying the

Petition and dismissing the action with prejudice. Pet. App. A3. Petitioner

appealed to the Ninth Circuit Court of Appeals, which on December 12, 2016,

granted Petitioner’s unopposed motion for remand to this court to “consider what

effect, if any, the Supreme Court’s decision in Montgomery v. Louisiana, 136 S. Ct.

4 On or around May 7, 2007, some years after the California Court of Appeal

and California Supreme Court affirmed the conviction, Petitioner filed a “Request

for Order for Permission to File a Late Petition for Writ of Habeas Corpus” in the

Central District of California, which denied the request without prejudice on May

11, 2007. (See Cervantes v. Warden, United States District Court for the Central

District of California case no. 07-2982 R (MLG)). On or around November 5, 2012,

approximately five years later, Petitioner filed a habeas corpus petition in the Los

Angeles County Superior Court, which denied the petition on December 14, 2012.

Pet. App. A5. Effective January 15, 2013, Petitioner filed a habeas corpus petition

in the California Court of Appeal, which denied the petition on February 14, 2013.

Id. Effective March 12, 2013, and April 2, 2013, Petitioner filed habeas corpus

petitions in the California Supreme Court, which denied the petitions on May 22,

2013. Pet. App. A5-A6.

6

718 (2016), has on the timeliness” of the Petition. Pet. App. A3. Following remand,

the parties briefed Montgomery’s effect on the Petition’s timeliness, and Petitioner

also argued he was entitled to an evidentiary hearing to address his purported

actual innocence and to an equitable exception to AEDPA’s 5 limitation period. Pet.

App. A3.

In support of his actual innocence claim—being raised in order to excuse the

untimeliness of his petition pursuant to Schlup v. Delo, 513 U.S. 298 (1995)—

Petitioner submitted a sworn declaration from victim Arash Zad-Behtooie (“ZadBehtooie Decl.”), who is now a licensed attorney. Pet. App. A32-A33. In his

declaration, Zad-Behtooie states he “was not shot by anyone in the hatchback that

was parallel to my car” but that he “was shot by the driver in the SUV” who ZadBehtooie saw “extend his hand out the window and start shooting.” Pet. App. A32,

¶¶ 3-4. Zad-Behtooie stated the SUV driver was shooting at Cisneros and Joaquin

who were walking toward Zad-Behtooie when he was shot. Id., ¶ 4. Zad-Behtooie

also indicated that before the shooting he “heard the driver of the SUV yell out

something like, ‘Pacoima, Van Nuys Boys’” and the hatchback driver “yelled out

something like ‘Do you know these guys?’” Id., ¶ 5. Zad-Behtooie stated that he

was closer to the hatchback than Webb and “would have been able to clearly see the

driver of the hatchback shooting,” but he never saw anyone in the hatchback with a

2254.

5 Antiterrorism and Effective Death Penalty Act (AEDPA).

7

See 28 U.S.C. §

gun and “[a]t no point did the driver of the hatchback have his arm out the

window.” Pet. App. A32-A33, ¶ 6.

Zad-Behtooie also explained that, “given the angle at which I was shot, I

could not have been shot by anyone in the hatchback [Cervantes’s car].” Id.

Finally, Zad-Behtooie stated that he “could tell from the sound of the shots that

there was only one gun being fired” and that “[n]o shots were fired from the

hatchback.” Pet. App. A33, ¶ 7.

The Magistrate Judge, however, issued a Report and Recommendation

finding that Petitioner had failed to establish actual innocence sufficient to excuse

the untimeliness of his petition, and that he was not entitled to an evidentiary

hearing on his actual innocence claim. Pet. App. A22-A30. It also recommended

that a certificate of appealability be denied. Pet. App. A37-A42. The district court

accepted the Report and Recommendation, dismissed the Petition, and denied a

COA. Pet. App. A34-42.

Mr. Cervantes appeal to the Ninth Circuit Court of Appeals, which also

denied a COA without explanation. Pet. App. A1.

8

REASONS FOR GRANTING THE WRIT

The Court should grant the writ of certiorari for two reasons. First, under 28

U.S.C. § 2253(c)(2)), a petitioner is entitled to a certificate of appealability merely

“by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). Mr. Cervantes overcame the low bar necessary

for issuance of a certificate of appealability to challenge the district court’s

rejection—without an evidentiary hearing—of his actual innocence claim being

raised to overcome the untimeliness of his habeas petition. Petitioner presented the

sworn declaration from one of the victims—a licensed attorney—who states

unequivocally that Petitioner did not shoot him or anyone and did not even have a

gun, contrary to the state’s argument at trial and on appeal, and contrary to the

state court of appeal’s decision affirming the conviction. That new evidence, at a

minimum, should have warranted an evidentiary hearing, and because jurists of

reason might have granted such an evidentiary hearing, a COA should have issued.

A second reason exists for granting the writ. This petition presents an

important question—whether due process is satisfied where the Circuit denies a

certificate of appealability without providing even a minimal explanation for its

decision. Mr. Cervantes’s COA application involved an important question about

the actual innocence of a man serving what is tantamount to a life without parole

sentence where one of the victims of that the crime states unequivocally that he did

9

not commit the offense. In the face of such argument, the Ninth Circuit’s

unreasoned and unexplained denial of the application for a certificate of

appealability violates due process and deprives Mr. Cervantes of a meaningful

opportunity for review.

I.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE ACTUAL

INNOCENCE CLAIM PETITIONER RAISED TO EXCUSE THE

UNTIMELINESS OF HIS PETITION PURSUANT TO SCHLUP v.

DELO WAS SUFFICIENT TO OVERCOME THE LOW BAR

NECESSARY FOR GRANTING A CERTIFICATE OF APPEALABILITY.

The standard for granting a certificate of appealability (COA) is an

“important matter” in federal habeas law. Supreme Court Rule 10(a). If a court is

not correctly applying that standard, then that court strips habeas corpus of its allimportant role in our criminal justice system. See Harrington v. Richter, 562 U.S.

86, 91 (2011) (“The writ of habeas corpus stands as a safeguard against

imprisonment of those held in violation of the law.”). Thus, this case will not just

allow this Court to ensure uniformity within the nation’s federal system, but it will

also allow this Court to preserve habeas corpus’s vital role in our system of justice.

Indeed, every year circuit courts entertain thousands of requests for COAs.

In Miller-El, this Court explained that when a circuit court receives one of these

requests, it must issue a COA if the petitioner makes “‘a substantial showing of the

denial of a constitutional right.’” See Miller-El, 537 U.S. at 327 (quoting 28 U.S.C.

§ 2253(c)(2)). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional claims

10

or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Id. This is not a high bar.

Yet the Ninth Circuit denies a striking number of the COA requests it

receives: 95 percent of them in fact. 6 By comparison, the rate of denials are

significantly lower in other circuits. See Brief for Petitioner, at *1A, Buck v. Davis,

137 S. Ct. 759 (2017), 2016 WL 4073689 (noting that “a COA was denied on all

claims in 58.9% (76 out of 129) of the [capital habeas] cases arising out of the Fifth

Circuit, while a COA was only denied in 6.3% (7 out of 111) and 0% of the cases

arising out of the Eleventh and Fourth Circuits respectively”). The fact that the

Ninth Circuit’s rate of denial is so out of step with other circuits suggests that the

Ninth Circuit is merely paying lip service to the principles this Court articulated in

Miller-El.

And this case proves that the Ninth Circuit is doing just that.

As shown below, the Ninth Circuit’s failure to issue a COA on the record that

was before it—the record now before this Court—shows that it applied a COA

standard much higher than the one this Court articulated in Miller-El—a standard

that, in effect, conflicts with this Court’s mandates.

Mr. Cervantes wants to present on appeal an issue that “jurists of reason”

could disagree with: the district court’s resolution of whether the sworn declaration

6 In 2015, the Ninth Circuit received 1,399 requests for COAs and granted

only 65 of those requests. See Submitted COAs, found at

http://cdn.ca9.uscourts.gov/datastore/uploads/guides/habeas_training/2016.10.2

7%20materials%20revised_2.pdf (last visited Feb. 13, 2020).

11

of one of the victims of this crime—that Cervantes did not have a gun or shoot

anyone—established actual innocence sufficient to excuse the untimeliness of his

habeas petition under Schlup, or that Cervantes was at least entitled to an

evidentiary hearing to establish that actual innocence. Certainly, a jurist of reason

might conclude that the issue is “adequate to deserve encouragement to proceed

further.” Miller-El, 537 U.S. at 327. And that is all that was necessary for issuance

of a COA.

In the district court, Mr. Cervantes argued that is entitled to the equitable

exception to AEDPA’s limitations period and to consideration of his habeas claims

on the merits, or at least is entitled to an evidentiary hearing regarding his actual

innocence claim. Indeed, a “credible claim of actual innocence constitutes an

equitable exception to [the habeas] limitations period, and a petitioner who makes

such a showing may pass through the Schlup[v. Delo, 513 U.S. 298 (1995)] gateway

and have his otherwise time-barred claims heard on the merits.” Lee v. Lampert,

653 F.3d 929, 932 (9th Cir. 2011) (en banc). In Herrera v. Collins, 506 U.S. 390,

(1990), this Court held that the threshold for a freestanding claim of innocence

would have to be “extraordinarily high,” id. at 417, and the Ninth Circuit has

indicated that a petitioner asserting such a claim must “go beyond demonstrating

doubt about his guilt, and must affirmatively prove that he is probably innocent,”

Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). But a showing of actual

innocence under Schlup ––the core of the miscarriage of justice doctrine––does not

require that a petitioner affirmatively prove his innocence of the crime. Rather,

12

“where post-conviction evidence casts doubt on the conviction by undercutting the

reliability of the proof of guilt, but not by affirmatively proving innocence, that can

be enough to pass through the Schlup gateway to allow consideration of otherwise

barred claims.” Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en banc)

(citing Carriger v. Stewart, 132 F.2d 463, 477 (9th Cir. 1997) (en banc) (holding that

petitioner need not show that he is “actually innocent” of the crime he was convicted

of committing; he need merely show that “a court cannot have confidence in the

outcome of the trial”) (additional citations omitted)).

One category of evidence that is sufficient to establish actual innocence is

“trustworthy eyewitness accounts.” Schlup, 513 U.S. at 324. In this case, the most

important trustworthy eyewitness account––that of victim Arash Zad-Behtooie, who

was standing next to the rear driver’s-side door of his car, next to and mere feet

away from Mr. Cervantes’s hatchback, when he was shot in the stomach––now

supports Mr. Cervantes’s claim that he is actually innocent, or at least casts doubt

on Mr. Cervantes’s convictions sufficient to allow consideration of his habeas claims

on the merits.

The district court found that Zad-Behtooie’s trial testimony was that he was

focused on the occupants of the SUV that was in front of Cervantes’s hatchback and

saw the SUV driver draw his weapon and started shooting, but was not paying

attention to the hatchback. Pet. App. A18. The court also noted that Zad-Behtooie

stated that the SUV driver was not firing at him and he did not know where the

bullet that hit him came from. Pet. App. A19 n.14. In the California Court of

13

Appeal, the state relied on Mr. Zad-Behtooie’s testimony to argue that Cervantes

was guilty of everything he had been convicted of based on what it claimed was ZadBehtooie’s testimony that he “was not shot by the gunman in the Ford Explorer,”

and thus “[Cervantes], not the gunman in the Ford Explorer, fired the shot which

struck Arash.” (District Court Lodged Doc. 4, at 22). The Court of Appeal,

apparently adopting the state’s view of the testimony, concluded that Zad-Behtooie

“recalled that the shooter from the SUV was not pointing a gun at him. His

testimony indicates the bullet that struck him was not fired from the SUV, but was

fired from elsewhere.” Pet. App. A55. It further indicated that “Arash recalled that

a person from the SUV did not point a gun at him,” and then concluded that

because “Arash was shot while standing a couple of feet from Stephanie . . . the

inference can be reasonably drawn that Arash and Stephanie were shot by the same

gunman,” i.e., by Mr. Cervantes. Pet. App. A55.

But Zad-Behtooie’s new Declaration makes clear that that’s not what

happened.

Indeed, Zad-Behtooie explained that to the extent his testimony has been

interpreted to mean that he had not been shot by the driver of the SUV, that that is

wrong. Pet. App. A32, ¶¶ 3, 4. Rather, he states, in no uncertain terms, that he

was, in fact, shot by the driver of the SUV, and was not shot by the driver of the

hatchback (Mr. Cervantes) or by anyone in the hatchback. Pet. App. A32-A33, ¶¶ 3,

14

4, 6, 7). 7 He also clearly and unequivocally explains that no shots were fired from

Mr. Cervantes’s car, that given the angle at which he was shot he could not have

been shot by anyone in Mr. Cervantes’s car, and he casts doubt on Stephanie Webb’s

testimony regarding what she saw. Pet. App. A32-A33, ¶¶ 6, 7). Moreover, Mr.

Zad-Behtooie, now a licensed attorney in California (Pet. App. A32, ¶ 1), is entirely

credible and had no reason to fabricate the sworn facts presented in his sworn

Declaration.

The district court dismissed Zad-Behtooie’s Declaration as nothing more than

a “‘clarify[ing]’ declaration” and “unhelpful” to Cervantes. Pet. App. A24, A25

(alteration in original). But while aspects of the Zad-Behtooie Declaration were

meant to “clarify” his trial testimony, Zad-Behtooie explained that what he meant

was that “[t]o the extent [his] testimony––that the gun being shot by the driver of

the SUV was not pointed at [him] and [that] the driver of the SUV was not firing at

[him]––has been interpreted to mean that the driver of the SUV did not shoot at

[him] [as the Court of Appeal determined], that would be incorrect.” Pet. App. A32,

¶¶ 2, 4.

7 Although Mr. Zad-Behtooie testified that he saw the driver of the SUV

shooting, he indicated when asked whether he had seen the driver of the SUV firing

at him, that “He wasn’t firing at me.” (Zad-Behtooie Trial Testimony, RT 420).

This was apparently interpreted by the Court of Appeal to mean Zad-Behtooie said

“the shooter from the SUV was not pointing a gun at him” and thus “the bullet that

struck him was not fired from the SUV, but was fired from elsewhere.” Pet. App.

A55. Mr. Zad-Behtooie now clarifies that the driver of the SUV was firing at

Joaquin and Arturo when he was hit by one of the shots fired by the SUV driver.

Pet. App. A32, ¶ 4.

15

In fact, Zad-Behtooie’s Declaration makes many things clear that were not

clear from the trial testimony:

•

he was shot by the driver of the SUV, not by Mr. Cervantes––contrary

to the Court of Appeal’s determination in affirming the conviction.

Pet. App. A32, ¶ 4.

•

Cervantes never had his arm out of his car’s window. Pet. App. A32, ¶

6).

•

Neither Cervantes––nor anyone in Cervantes’s car––had a gun. Pet.

App. A32-A33, ¶ 6).

•

No shots were fired from Cervantes’s car. Pet. App. A33, ¶ 7).

The district court concluded that none of this would have made a difference in

the outcome because the jury must have concluded that Cervantes “did not shoot at

Zad-Behtooie” but convicted Cervantes anyway. Pet. App. A24-A26; A25-A26 n.20.

But the conclusion is based on the erroneous belief that the jury’s conclusions on the

firearms enhancements meant it “clear” that the jury had concluded that Cervantes

shot Webb but convicted Cervantes of the Zad-Behtooie and Cisneros shootings on

an aiding and abetting theory. Pet. App. A25 n.20. Yet, that’s not what the state

argued or what the state Court of Appeal concluded. At all times, the

determination was that Cervantes personally shot Zad-Behtooie and Webb, not as

an aider and abettor. Pet. App. A53 [“Substantial evidence supports the finding

that Cervantes shot Arash and Stephanie, aided and abetted in the shooting of

Arturo, personally used a firearm, and that the shooting was premediated and

16

deliberate.”]); id. at A55 [“Notwithstanding Cervantes’ contention that the evidence

was insufficient to establish he shot Arash and Stephanie, the prosecution

witnesses supported the theory that it was Cervantes who shot Arash and

Stephanie.”]).

Moreover, the district court’s conclusion that “it seems clear” the jury

convicted Cervantes of Zad-Behtooie’s shooting on an aiding and abetting theory

because it found the state had not proven Cervantes personally discharged a

firearm does not pass legal muster. There are myriad reasons the jury might have

found as it did, not least of which is that it reached a compromise, or that the

outcome presented an inconsistent verdict. For purposes of the court’s analysis,

what mattered is the newly presented evidence together with the evidence at trial.

And that is what showed that Cervantes is actually innocent of his crimes, at least

under Schlup.

In addition, the district court appeared to conclude that the actual innocence

claim fails because Zad-Behtooie’s Declaration “essentially reiterates [his] trial

testimony that he never heard any shots fired from the hatchback” and that a

petitioner may not make a showing of actual innocence based on what was known at

the time of trial and presented to the jury. Pet. App. A27. But Zad-Behtooie’s

Declaration does not merely reiterate his trial testimony. To be sure, he did state

some things in his declaration that he said at trial. But the crux of the Declaration

17

is plainly new evidence that was not presented at Cervantes’s trial and makes clear

facts that were not clearly presented at that time. 8

To establish actual innocence here, Cervantes was required “to support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. Cervantes did

just that with the new testimony of an extremely credible and trustworthy

eyewitness: a victim who now also happens to be an attorney.

Thus, the district court’s conclusion that “Zad-Behtooie’s declaration

reaffirming a finding the jury already made does nothing to demonstrate

Petitioner’s actual innocence,” Pet. App. A26, is both factually and legally

incorrect—at least sufficiently arguable for jurists of reason to disagree.

The court also indicated that the testimony of Stephanie Webb, another

victim of the shooting, was that she saw Cervantes “pull a gun out and extend his

right hand toward her” before the shots rang out. Pet. App. A19. Yet, Webb’s

actual testimony did not support such a finding. The court made the same factual

8 The district court relied on Bannister v. Delo, 100 F.3d 610, 618 (8th Cir.

1996) (“[p]utting a different spin on evidence that was presented to the jury does not

satisfy the requirements set forth in Schlup”), to support its dismissal of ZadBehtooie’s declaration. Pet. App. A27. But Bannister involved the declaration of a

filmmaker who essentially reitereated defendant’s theory based on his own

interpretation of facts presented at trial and his own investigation. Id. at 615-16.

That case had no relevance to this case. Here, an actual victim and witness

presented new facts, using his prior testimony to put those new facts that had not

previously been presented in context. Zad-Behtooie’s Declaration is not merely

putting “a different spin” on things by someone uninvolved in the incident.

18

error as the state Court of Appeal did, ignoring Webb’s testimony that she did not

recall seeing a gun in Cervantes’s hand.

For example, Ms. Webb was asked at trial if she had “see[n] any guns,” to

which she replied, “I remember the driver extending his hand towards me. I didn’t

look exactly at it.” (RT 441). She was later questioned about having previously

testified at another hearing at which she apparently had said she saw the driver

“pull the gun out.” (RT 442). She confirmed that she had said that at the prior

hearing. (RT 442). But she did not confirm that she actually saw Mr. Cervantes

with a gun, only that she previously had testified to that. In fact, when then asked

to confirm that Mr. Cervantes, whom she identified as the driver in court, was “also

the one that you saw with the gun,” she would only say, “He’s the one that I saw

extend his hand.” (RT 443). On cross-examination, she explained that when she

had said she saw Cervantes “extend his hand,” she meant she “saw his hand

pointed towards the car.” (RT 471-472). When asked if she had seen a gun in

Cervantes’s hand, she said, “I wasn’t paying attention,” and confirmed that she was

“not sure whether or not there was a gun in that hand.” (RT 475). When again

asked, “Did you ever see a gun?”, her response was “I don’t remember.” (RT 476).

She further testified that she “didn’t see any shots fired,” that she “just heard

them,” and that she “can’t pinpoint exactly where they came from.” (RT 480). And

then, when again asked, “And you never saw a gun in Mr. Cervantes’ hand?”, she

reiterated, “Not that I remember.” (RT 480-481). On redirect examination, the

prosecutor essentially tried to impeach Webb with her prior testimony, asking if at

19

the preliminary hearing she testified that she “did see the defendant pull a gun out

of the car”; she responded, “I don’t remember.” (RT 481). And after refreshing

Webb’s recollection by showing her the transcript of her prior testimony, her

response to the question “Did you see him pull out a gun?” was again, “I remember

his hand being extended, but seeing a gun . . . it’s hard to say now.” (RT 482).

Zad-Behtooie’s Declaration now clarifies just how wrong the state Court of

Appeal got it when it reviewed the trial testimony and it presented new evidence

that, together with Webb’s equivocal testimony––during which she never indicated

she saw a gun in Cervantes’s hand––establishes that Cervantes did not commit the

crimes of attempted murder or engage in conduct to establish the 35 years of

consecutive time for personally using a gun in commission of the crimes.

The new evidence from Mr. Zad-Behtooie making clear that Mr. Cervantes

was not the shooter, shot no one, and did not have a gun, and thus it severely, if not

completely, undercut the reliability of any proof of Cervantes’s guilt and casts doubt

on Mr. Cervantes’s convictions and enhancements. 9 And because Cervantes at least

9 The same holds true for convictions which might have been based on an

aiding and abetting theory, such as the attempted murder of Arturo Cisneros. Mr.

Zad-Behtooie’s Declaration makes clear that shots were not fired from both vehicles,

but were only fired from the SUV. Pet. App. A32-A33, ¶¶ 3, 4, 7). Moreover, the

Court of Appeal’s decision to affirm on an aiding and abetting theory as to

Cisneros’s attempted murder was premised on the victims having been threatened

just before the shooting by people in Mr. Cervantes’s car, and its belief that

Stephanie Webb saw Cervantes point a gun at her, which the court believed

together “indicate[d] [Cervantes’s] active participation in the shooting.” Pet. App.

A58. But Zad-Behtooie’s Declaration, together with the trial testimony, undercuts

and casts substantial doubt on that belief as well because nobody in Cervantes’s car

20

arguably established he is actually innocent of his crimes of conviction, he satisfied

the Schlup “gateway” and did not need to demonstrate satisfaction of the one-year

limitations period under AEDPA to have his claims considered on the merits.

For a COA, it was enough if any jurist of reason might disagree with the

district court’s decision here. Plainly, that was established.

At a minimum, the district court erroneously concluded that Mr. Cervantes

was not entitled to an evidentiary hearing on his actual innocence claim for

purposes of Schlup—and certainly a jurist of reason might have granted an

evidentiary hearing under these circumstances.

The general rule concerning habeas evidentiary hearings was established

prior to the passage of AEDPA in Townsend v. Sain, 372 U.S. 293 (1963) (holding

that a federal court must grant an evidentiary hearing under any one of several

circumstances, including when there is a substantial allegation of newly discovered

evidence). Except as modified by AEDPA, “[t]hat basic rule has not changed.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). As a threshold matter, the

petitioner must allege facts which, if proved, would entitle him to relief. Townsend,

372 U.S. at 312. The district court is not required to grant a hearing where “the

record refutes the applicant’s factual allegations or otherwise precludes habeas

relief.” Schriro, 550 U.S. at 474. But district courts regularly conduct evidentiary

hearings to determine whether a petitioner has presented sufficient evidence of

threatened anyone and Webb never saw Cervantes point a gun at her. Pet. App.

A32-A33, ¶¶ 5, 6; RT 431-432).

21

actual innocence to excuse procedural defaults vis-à-vis the Schlup gateway. See,

e.g., Clark v. Cate, 581 Fed. Appx. 654, 657 (9th Cir. June 27, 2014); Larsen v. Soto,

730 F.3d 930 (9th Cir. 2013); Souliotes v. Hedgpeth, 2012 U.S. Dist. LEXIS 58689,

*23-25 (E.D. Cal. April 26, 2012); Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir.

2008); Jaramillo v. Stewart, 340 F.3d 877, 883-84 (9th Cir. 2003); Majoy v. Roe, 296

F.3d 770, 776 (9th Cir. 2002).

Although the district court concluded that an evidentiary hearing was not

required because “even crediting Zad-Behtooie’s declaration, Petitioner is not

entitled to pass through the Schlup gateway, Pet. App. A30 n.27 (citations omitted),

as discussed above, that’s not true. And the state’s sur-reply made clear that there

were substantial disputes as to the merits and reliability of Zad-Behtooie’s

declaration, including the state’s position that it is “unreliable and incredulous,”

(Dist. Ct. Dkt. 63, at 5), and that the evidence against Cervantes was

“overwhelming,” (Dist. Ct. Dkt. 61, at 5). Moreover, because the declaration cast

doubt as to the Court of Appeal’s interpretation of Webb’s testimony, an evidentiary

hearing would have aided in determining whether Zad-Behtooie’s statement

established actual innocence in relation to the other witnesses’ recollection. Thus,

Cervantes at least should have been entitled to an evidentiary hearing, and because

jurists of reason might agree with him on that point, a COA should have been

granted to permit him to make that argument on appeal.

The Ninth Circuit’s order denying a certificate of appealability fails to heed

this Court’s clear pronouncements about when a reviewing court should issue a

22

COA. This case thus provides an opportunity for this Court to ensure that the

Ninth Circuit gets back in line with the rest of this nation’s circuit courts in

correctly applying the low bar required for granting a certificate of appealability

and to allow this Court to preserve habeas corpus’s vital role in our system of

justice. This Court should therefore grant the petition for a writ of certiorari.

II.

THE COURT SHOULD GRANT CERTIORARI TO CLARIFY THE

STANDARD FOR A CIRCUIT COURT’S EXPLANATION WHEN IT

DENIES A CERTIFICATE OF APPEALABILITY.

Mr. Cervantes’s COA application presented an important question on the

application of the actual innocence gateway to excuse the untimeliness of habeas

corpus petitions—and to permit a man who is actually innocent of multiple

attempted murders for which he is serving multiple consecutive life sentences the

opportunity to litigate his constitutional claims in habeas corpus. But without any

analysis or stated reasoning, the Ninth Circuit denied the certificate of

appealability. Just as a district court must provide some reasoning for its

sentencing decisions, and agencies must provide some basis for the exercise of their

decision-making power, the Circuit should be required to state some minimal

reasoning for its decision to deny a certificate of appealability.

Due process requires at least a minimal explanation for denial of a certificate

of appealability. Indeed, it’s unclear here why the Ninth Circuit declined to grant a

COA. Though the Court was presented with these arguments, its order reflects no

discussion of any of these points. In its one-page order, the Court merely quoted the

23

standard for a certificate of appealability and denied the application without

explanation. Due process requires more.

A court’s adequate explanation of its decision is a necessary component of due

process. Indeed, this Court has insisted that sentencing judges “adequately explain

the chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). A

requirement of a statement of reasons at sentencing has been held to “further[] the

proper administration of justice” by “communicat[ing] that the parties’ arguments

have been heard, and that a reasoned decision has been made.” United States v.

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Four courts have gone so far as

to say that the failure to make such an explanation is prejudicial plain error,

without a specific showing of prejudice. See United States v. Lewis, 424 F.3d 239,

247-49 (2d Cir. 2005); In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008); United

States v. Blackie, 548 F.3d 395, 402-03 (6th Cir. 2008); United States v. Parks, 823

F.3d 990, 997 (11th Cir. 2016).

In the same vein, this Court has held that a most “basic procedural

requirement” applicable to administrative agencies is that they “give adequate

reasons for [their] decisions. Encino Motorcars, L.L.C. v. Navarro, 136 S. Ct. 2117,

2125 (2016). That is not to say that the explanation need be encyclopedic in all

cases; the requirement is satisfied where “the agency’s explanation is clear enough

that its ‘path may reasonably be discerned.’” Id. (citation omitted). But “where the

24

agency has failed to provide even that minimal level of analysis, its action is

arbitrary and capricious and so cannot carry the force of law.” Id.

While the Ninth Circuit has been happy to heap on requirements on the

district court’s exercise of its decision-making authority, it has adopted a postcarddenial format for certificates of appealability. This is error because the denial

effectively prevents this Court from reviewing the lower court’s decision. There is

no way to tell, from the Ninth Circuit’s order, whether it made some error in the

legal standard for a COA—which is extraordinarily low—or whether it harbored

some factual misunderstand about the record. Indeed, it’s not apparent from the

face of the order whether the court was even aware of all of the Petitioner’s claims.

There is, in Encino Motorcar’s parlance, nothing from which the Court’s “path may

reasonably be discerned.” Encino Motorcars, 136 S. Ct. at 2125. It’s one thing to do

so in a context where review is discretionary and where there is no higher court in

which to seek review, as when a state’s highest court or this Court deny review. It’s

another to do so in the context of a certificate of appealability.

Due process is violated by arbitrary and capricious government conduct.

Here, the Ninth Circuit’s failure to provide even minimal reasons why the

arguments above do not satisfy the low bar for granting a certificate of appealability

violated due process. And, if this Court will not clarify the Circuit’s responsibility to

provide a meaningful—if minimal—explanation for the reason for denying a COA,

there is no other entity that will.

The Court should grant the writ of certiorari.

25

CONCLUSION

For all the foregoing reasons, Petitioner submits that the petition for a writ of

certiorari should be granted.

Respectfully submitted,

AMY M. KARLIN

Interim Federal Public Defender

DATED: March 19, 2020

/s/ Jonathan D. Libby

_________________________

JONATHAN D. LIBBY

Deputy Federal Public Defender

Counsel of Record

Attorneys for Petitioner

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