Petition for Writ of Certiorari — James Jordan McClain, Petitioner v. Tammy Campbell, Warden

No. __________

In the

United States Supreme Court

________________________

J a mes Jor d an M c Cl ai n,

Petitioner,

v.

Tammy L. Campbell, Warden

Respondent.

________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________________

Pet it io n f or a Writ of Ce rtiorari

________________________

CUAUHTEMOC ORTEGA

Federal Public Defender

D A L E F. O G D E N

Counsel of Record

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012

(213) 894-2854

dale_ogden@fd.org

Counsel for Petitioner

J AMES J ORDAN M CC LAIN

Questions Presented

California convicted James McClain of first-degree murder for a

shooting. McClain claimed that, before he shot the decedent, the

decedent struck him unprovoked. This should have resulted in a selfdefense acquittal or a lesser homicide (e.g. voluntary manslaughter or

second-degree murder). But the State suppressed McClain’s best

corroborating evidence—a witness’ statement that she saw the

decedent first strike McClain.

McClain spent years looking for this witness. Once he found her,

he spent years attempting to get her affidavit to prove a Brady

violation. But the time it took McClain to locate and gather this

evidence rendered the Brady claim untimely. That was so, the Ninth

Circuit held, because McClain was not entitled to equitable tolling as

the State’s Brady suppression did not make an earlier filing

impossible.

The Ninth Circuit also held that McClain failed to demonstrate

a reasonable probability of an acquittal on a self-defense theory or a

lesser conviction of voluntary manslaughter—ignoring the reasonable

probability of a lesser second-degree murder conviction only.

Therefore, the questions presented are:

1. In assessing whether extraordinary circumstances stood in a

petitioner’s path for equitable-tolling purposes, do those

circumstances need to make earlier filing “impossible”?

2. Did the Ninth Circuit reversibly err by ignoring McClain’s

clearest argument for prejudice?

ii

Parties to the Proceeding

Petitioner is James Jordan McClain and Respondent is Tammy

L. Campbell—current warden of California State Prison Corcoran

where McClain is imprisoned. See Fed. R. App. P. 43(c)(2). The case

was previously captioned under the previous warden of that facility,

Robert Neuschmid.

Related Proceedings

U.S. Court of Appeals for the Ninth Circuit



McClain v. Neuschmid, 21-56035 (memorandum disposition

entered on August 10, 2023, petition for rehearing denied on

August 30, 2023).

U.S. District Court for the Central District of California



McClain v. Neuschmid, 8:20-cv-00656-SVW-LAL (judgment

denying petition for writ of habeas corpus entered on July 27,

2021).

California Supreme Court



In re McClain (James Jordan) on Habeas Corpus, S257743

(denying petition for writ of habeas corpus on January 2, 2020).



People v. McClain, S046851 (denying petition for review on

direct appeal on July 12, 1995).

iii

California Court of Appeal



In re James Jordan McClain on Habeas Corpus, G058013

(denying petition for writ of habeas corpus on July 25, 2019).



In re James Jordan McClain on Habeas Corpus, G057935

(denying petition for writ of habeas corpus without prejudice on

July 3, 2019).



In re James Jordan McClain on Habeas Corpus, G056992

(denying petition for writ of habeas corpus on November 29,

2018).



People v. McClain, G015635 (affirming on direct appeal on April

25, 1995).

California Superior Court



In re James Jordan McClain on Habeas Corpus, M-17903 (order

denying petition for writ of habeas corpus on April 19, 2019).



In re James Jordan McClain on Habeas Corpus, M-17302 (order

denying petition for writ of habeas corpus on February 7, 2018).



People v. McClain, C-99486 (entering judgment and sentence

against McClain for first-degree murder on March 7, 1994).

iv

Contents

Questions Presented ....................................................................... i

Parties to the Proceeding .............................................................. ii

Related Proceedings ...................................................................... ii

Table of Authorities ..................................................................... ix

Opinions Below ............................................................................. 1

Jurisdiction ................................................................................... 1

Constitutional and Statutory Provisions Involved ......................... 1

Statement of the Case ................................................................... 3

A. The shooting of Willie Ford ................................................ 3

B. The investigation of the shooting reveals a photograph

of an eyewitness, known only as “Phamous,” containing

her pager number. ............................................................. 4

C. Police inexplicably “lose” the photograph of Phamous. ...... 5

D. McClain moves to dismiss the charge due to the State’s

destruction of evidence but, without any evidence of

Phamous’ statements, the trial court denies the motion. ... 5

E. The State’s actions force McClain to go to trial without

Phamous. ........................................................................... 6

1. The prosecution’s case-in-chief: largely-undisputed

facts and a single eyewitness. ...................................... 6

2. McClain’s defense. ........................................................ 6

a. Saint Anthony Fox .................................................. 6

b. Leo Parker Jr. ........................................................ 7

c.

James McClain ....................................................... 8

3. The prosecution’s rebuttal witness. .............................. 8

v

4. Closing arguments ....................................................... 9

5. The jury instructions, deliberations, and verdict. ...... 10

F. Direct Appeal ................................................................... 11

G. McClain makes repeated efforts to locate Phamous,

and after a decades-long search, discovers that

Phamous is Georgia Brown. ............................................. 11

H. Georgia “Phamous” Brown writes the Superior Court,

informing the court that her testimony would have

been favorable to McClain’s defense. ............................... 13

I.

Collateral Review ............................................................. 14

1. The initial state petitions ........................................... 14

2. Brown’s exculpatory 2019 affidavit. ........................... 14

3. McClain returns to state court with Brown’s

2019 affidavit. ............................................................ 15

4. The federal habeas petition ........................................ 16

a. The district court finds equitable tolling appeared

to render McClain’s claim timely, but denies

the claim on the merits. ........................................ 16

b. The Ninth Circuit finds equitable tolling doesn’t

render McClain’s claim timely and finds

no prejudice—ignoring one of McClain’s

arguments for prejudice. ...................................... 17

Reasons for Granting the Writ .................................................... 19

A. This Court should grant certiorari to clarify the standard

for equitable tolling, particularly in Brady cases. ............ 19

vi

1. The Courts of Appeal are divided on whether,

to establish extraordinary circumstances standing

in a habeas petitioner’s path, a petitioner need

establish that the circumstance made earlier

filing “impossible.” ..................................................... 19

2. The impossibility standard is wrong under

this Court’s decision in Holland. ................................ 22

3. This impossibility standard is particularly inequitable

in cases of Brady violations—where the State bears

the responsibility for the wrongdoing ......................... 23

B. This Court should reverse the Ninth Circuit’s alternative

prejudice ruling, because the Ninth Circuit ignored

McClain’s clearest argument for prejudice. ...................... 24

Conclusion ................................................................................... 27

Appendix

Appendix A—U.S. Court of Appeals for the Ninth Circuit

Order Denying Petition for Panel Rehearing

(August 30, 2023) .........................................................................1a

Appendix B—U.S. Court of Appeals for the Ninth Circuit

Memorandum Disposition Affirming Denial of Habeas Petition

(August 10, 2023) .........................................................................2a

Appendix C—U.S. District Court, Order Entering Judgment

Dismissing McClain’s Habeas Claims with Prejudice

(July 27, 2021) ............................................................................10a

Appendix D—U.S. District Court, Order Accepting Report and

Recommendation, Dismissing McClain’s Habeas Claims with

Prejudice (July 27, 2021) ............................................................11a

vii

Appendix E—U.S. District Court, Report and Recommendation,

Recommending Dismissing McClain’s Habeas Claims with

Prejudice (March 17, 2021) ........................................................13a

Appendix F—California Supreme Court,

Denying Writ of Habeas Corpus

(January 2, 2020)........................................................................38a

Appendix G—California Court of Appeal,

Order Denying Writ of Habeas Corpus

(July 25, 2019) ............................................................................39a

Appendix H—California Court of Appeal,

Order Denying Writ of Habeas Corpus without Prejudice

(July 3, 2019) ..............................................................................40a

Appendix I—California Superior Court,

Order Denying Writ of Habeas Corpus

(April 19, 2019) ...........................................................................41a

Appendix J—California Court of Appeal,

Order Denying Writ of Habeas Corpus

(November 29, 2018) ..................................................................44a

Appendix K— California Superior Court,

Order Denying Writ of Habeas Corpus

(February 7, 2018) ......................................................................45a

Appendix L—California Supreme Court,

Denial of Petition for Review (Direct Appeal)

(July 12, 1995) ............................................................................51a

Appendix M—California Court of Appeal,

Opinion Affirming Judgment (Direct Appeal)

(April 25, 1995) ...........................................................................53a

viii

Appendix N—California Superior Court,

Judgment of Conviction and Sentence

(March 7, 1994) ...........................................................................60a

ix

Table of Authorities

Page(s)

Supreme Court Cases

Banks v. Dretke,

540 U.S. 668 (2004) ............................................................................23

Holland v. Florida,

560 U.S. 631 (2010) ................................................................ 19, 22, 23

Federal Cases

Camargo v. Ryan,

684 F. App’x 607 (9th Cir. 2017) .......................................................20

Dennis v. McClain,

2023 WL 6065878 (S.D. Ala. 2023) ...................................................21

Everett v. Barrow,

861 F. Supp. 2d 1373 (S.D. Ga. 2012) ...............................................21

Fue v. Biter,

842 F.3d 650 (9th Cir. 2016) (en banc) .............................................20

Harris v. Hutchinson,

209 F.3d 325 (4th Cir. 2000)..............................................................20

Lawrence v. Lynch,

826 F.3d 198 (4th Cir. 2016)..............................................................21

Mann v. United States,

2023 WL 3479402 (6th Cir. 2023) .....................................................21

Martinez v. Allison,

2023 WL 3874310 (S.D. Cal. 2023) ...................................................21

Razavi v. Seale,

786 F. App’x 722 (9th Cir. 2019) .......................................................20

Salinas-Tinoco v. Davis,

2018 WL 3979865 (N.D. Tex. 2018) ..................................................21

x

Socha v. Boughton,

763 F.3d 674 (7th Cir. 2014)..............................................................20

Symmes v. Waddell,

446 F. App’x 821 (8th Cir. 2012) .......................................................21

Thomas v. Sayler,

2022 WL 4079378 (D.N.D. 2022).......................................................21

State Cases

California v. Knoller,

41 Cal. 4th 139 (2007)........................................................................25

Federal Statutes

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

28 U.S.C. § 2244(d)....................................................................................2

28 U.S.C. § 2244(d)(1) .............................................................................19

28 U.S.C. § 2244(d)(1)(B) ........................................................................19

28 U.S.C. § 2244(d)(1)(D) ........................................................................19

State Statutes

Cal. Penal Code § 187(a) .........................................................................25

Cal. Penal Code § 189 .............................................................................25

Other Authorities

Fed. R. App. P. 43(c)(2) ............................................................................ ii

Supreme Court, Rule 10(a) ...............................................................20, 26

Opinions Below

The Ninth Circuit’s unpublished memorandum decision is

available at 2023 WL 5125043, and reproduced in Pet. App. 2a, and

their order denying re-hearing is reproduced at Pet. App. 1a. The

judgment of the district court is reproduced at Pet. App. 10a-12a. The

remaining state opinions, orders, and judgments are reproduced at

Pet. App. 38a-60a.

Jurisdiction

The Ninth Circuit issued its memorandum disposition on August

10, 2023, and denied McClain’s petition for rehearing on August 30,

2023, Pet. App. 1a-9a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

Constitutional and Statutory

Provisions Involved

The Due Process Clause of the Fourteenth Amendment provides

that: “No state shall . . . deprive any person of life, liberty, or property,

without due process of law . . . .”

2

28 U.S.C. § 2244(d) provides that:

(1)

(2)

A 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation

period shall run from the latest of—

(A)

the date on which the judgment became final by the

conclusion of direct review or the expiration of the

time for seeking such review;

(B)

the date on which the impediment to filing an

application created by State action in violation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from filing

by such State action;

(C)

the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if

the right has been newly recognized by the

Supreme Court and made retroactively applicable

to cases on collateral review; or

(D)

the date on which the factual predicate of the claim

or claims presented could have been discovered

through the exercise of due diligence.

The time during which a properly filed application for

State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation under

this subsection.

3

Statement of the Case

A. The shooting of Willie Ford

One night in October 1991, various individuals were present at a

nightclub in Santa Ana, California, including James McClain and

Willie Ford—a 6 foot, 5 inches tall man with a lengthy and violent

criminal history. See SSER-183-185, 190-191; 4-SER-929.1

Outside the nightclub at the end of the night, Ford and a group

of his friends stood near their vehicle. See 5-SER-1036, 1042, 11331134, 1173. McClain remained yards away, near his vehicle. 5-SER1042. And a woman, known only by her moniker, “Phamous,” stood

within feet of McClain. See 5-SER-1042-1043.

Ford approached McClain, threw his hands up and yelled

“What’s up?” in an aggressive manner. 4-SER-868-867; 5-SER-1085,

1109; 6-SER-1246. What happened next was the entire dispute in the

case.

McClain contended that he walked Phamous to her vehicle, at

her request, because Ford and his friends had made aggressive sexual

comments towards her. 5-SER-1157-1158, 1173. As he walked

Phamous to her vehicle, Ford approached him and struck him in the

head. 5-SER-1157, 1159. Dazed from being struck, McClain pulled out

his weapon and shot Ford. 5-SER-1160-1163. As McClain ran and

ultimately drove away, he fired in the air, intending to keep Ford’s

1 “SER” refers to the “Supplemental Excepts of Record” filed by the State,

“SSER” refers to the “supplement to the supplemental excerpts of record” filed by

McClain, and “FER” refers to the “further excerpts of record” filed by McClain. Those

are available on the Ninth Circuit’s Pacer page: McClain v. Neuschmid, 21-56035 at

Docket 10, 25, and 38, respectively.

4

friends on the ground, thus avoiding any retaliation from them. See 5SER-1190.

The prosecution contended otherwise. Although their version of

motive remains unclear, their theory was essentially that McClain shot

Ford after some type of verbal altercation. See 4-SER-870-871.

Ford died from the gunshot wounds. 4-SER-928. An autopsy

report reflected that the trajectory of the various bullets could mean

different things, including: (1) being shot while making a turning

motion; or (2) being shot from behind. 4-SER-926, 932.

B. The investigation of the shooting reveals a photograph of

an eyewitness, known only as “Phamous,” containing her

pager number.

Police arrived at the scene of the shooting. The two officers

tasked with evaluating the scene were trainee officer David Foster and

his field training officer. 4-SER-858. Foster was assigned to maintain

the crime scene and contact “some witnesses.” 4-SER-973; 5-SER-1095.

Saint Anthony Fox, an employee at the nightclub, provided

Foster a polaroid photograph of Phamous taken on the date of the

shooting. 4-SER-787; 5-SER-1051-1052. Phamous wore a black outfit,

and the back of that photograph contained her pager number. 4-SER787; 5-SER-1033.

Another employee, security guard Leo Parker, had written down

McClain’s license plate. 4-SER-873. Knowing his vehicle, police found

McClain, and the State charged him with first-degree murder. SSER172-173.

5

C. Police inexplicably “lose” the photograph of Phamous.

Unaccountably, Officer Foster “lost” the photograph of Phamous

containing her picture and number. 4-SER-787; 5-SER-1091-1092.

Police supposedly recorded the number, providing that to McClain, and

only lost the actual photograph. 4-SER-788.

But no one could find her. Police represented they made

significant efforts to locate Phamous, to no avail. SSER-155, 177-180;

4-SER-814; see also SSER-152 (the prosecution arguing good faith and

a lack of exculpatory value). Due to the lack of a statement from

Phamous, and the lack of any contact with her, the parties did not

know what Phamous would testify to. See 6-SER-1233 (Defense

counsel noting “there’s no way we can tell this court what Phamous

would say”).

After the shooting, but prior to trial, the Santa Ana Police

Department fired Foster for unknown reasons. 4-SER-835, 858.

D. McClain moves to dismiss the charge due to the State’s

destruction of evidence but, without any evidence of

Phamous’ statements, the trial court denies the motion.

Due to the destruction of Phamous’ potentially-exculpatory

evidence, McClain moved to dismiss the charges, or in the alternative,

impose sanctions on the prosecution. SSER-154-160. The State opposed

the motion, arguing the lack of any bad faith and the lack of

exculpatory value. SSER-152.

After a hearing on the matter, the trial court found that

McClain had not made a sufficient showing of exculpatory value, and

6

denied the motion. 4-SER-816. In other words, the court denied the

motion, because Phamous had not made a statement.

The case thus proceeded to trial.

E. The State’s actions force McClain to go to trial without

Phamous.

1. The prosecution’s case-in-chief: largely-undisputed facts

and a single eyewitness.

Beyond presenting witnesses to establish the largely-undisputed

facts set out above, and despite numerous people being present in the

parking lot during the shooting, the prosecution presented a single

eyewitness to establish their murder case: Leo Parker Sr.

Parker Sr. worked as a security officer at the nightclub. 4-SER861-862. He observed Ford approach McClain, and throw his hands up,

stating “What’s up?” 4-SER-868-869. McClain exited the vehicle and

spoke with Ford. 4-SER-869. After some type of verbal altercation,

Ford ran, and McClain pulled out a handgun. 4-SER-869-871. McClain

then fired several shots. 4-SER-871, 873.

McClain fled. 4-SER-874-877.

2. McClain’s defense.

The defense presented witnesses Saint Anthony Fox, Leo Parker

Jr., and McClain himself to testify in support of his defense.

a. Saint Anthony Fox

Saint Anthony Fox worked as a promoter and assistant manager

at the nightclub. 5-SER-1023, 1030. Earlier in the evening, Fox took a

picture with Phamous. 5-SER-1032-1033. She gave him the

7

photograph and wrote her number on it, hoping to come back to the

club and get VIP passes. 5-SER-1033-1034.

Once the nightclub reached closing time, Fox exited the building

and headed toward the parking lot. He observed Phamous approach

McClain’s vehicle and heard her make some comment to the effect of

“all guys [are] talking about their private parts . . . .” 5-SER-10411042. Ford stated something to Phamous and followed her towards

McClain’s vehicle. 5-SER-1042-1043.

Fox then heard a confrontation and a loud “smack.” 5-SER-1043.

After Fox heard the smack, Ford stood with his hands in a boxing pose

near McClain. 5-SER-1044. McClain then pulled out a firearm and

fired. 5-SER-1044-1045. After firing, McClain sped off while shooting

in the air. 5-SER-1047.

The prosecution, however, impeached Fox because he did not

include some of the above information during his original statement to

police. 5-SER-1061-1075; see 6-SER-1224-1225, 1271-1272.

b. Leo Parker Jr.

Parker Jr. was present at the nightclub at the time of the

shooting. 5-SER-1099. He observed Phamous speaking with McClain.

5-SER-1111. McClain exited his vehicle as Phamous and McClain

spoke. 5-SER-1111, 1120.

Parker Jr. then overheard the words “What’s up?” 5-SER-1109,

1111. Ford approach McClain’s vehicle and Parker Jr. believed a fight

was imminent. 5-SER-1109-1110. Parker Jr. heard a fight and gunfire

in quick succession. 5-SER-1111.

8

c. James McClain

McClain went to the nightclub that night and spoke with

Phamous and had drinks with her. 5-SER-1147. At the end of the

night, McClain went to his vehicle and Phamous approached him. 5SER-1155. She asked McClain to walk her to her vehicle because Ford

and his friends, also in the parking lot near her vehicle, had made

sexual comments to her. 5-SER-1157-1158, 1173. McClain agreed.

As McClain walked Phamous to her vehicle, Ford punched

McClain in the head. 5-SER-1156-1157. McClain fell back, dazed from

the punch. 5-SER-1160-1161. McClain then pulled out his weapon and

shot. 5-SER-1160. He did not intend to kill Ford, just stop the assault.

5-SER-1160, 1163. And this all happened in a manner of seconds. 5SER-1167.

After McClain started shooting, Ford ran back toward his

vehicle. McClain also ran. 5-SER-1162. After he got in his vehicle,

continuing to run, McClain fired more rounds from the vehicle into the

air because he was afraid that Ford’s friends were going to attack him.

He did not intend to harm anyone with these shots, nor did he. See 5SER-1190.

3. The prosecution’s rebuttal witness.

Confronted with McClain’s evidence, the prosecution announced

its intent to call Melissa Jorgenson to impeach McClain and Fox. 6SER-1229. Defense counsel objected and argued that prohibiting her

testimony would be a perfect opportunity to impose sanctions on the

prosecution for the unavailability of Phamous. 6-SER-1232-1233. But

9

the court again stated there was no showing of Phamous’ exculpatory

value. 6-SER-1233-1234. Thus, the court again denied the motion for

sanctions and permitted Jorgenson to testify. 6-SER-1234.

Jorgenson allegedly witnessed the shooting, although she could

only identify the shooter as a black man. 6-SER-1243. She likewise,

and incorrectly, identified Ford as five foot, 10 inches tall and “kind of

stocky.” 6-SER-1253-1254. And she, again incorrectly, was “positive”

that Phamous wore a white dress. 6-SER-1251.

She allegedly heard the shooter say to Phamous, “I have a big

dick. So why don’t you suck it?” 6-SER-1244. She did hear Ford yell

“what’s up?,” but never observed Ford in a combative stance or throw

any punches. 6-SER-1246, 1248.

Following this rebuttal testimony, the parties proceeded to

closing arguments.

4. Closing arguments

The prosecution argued for premeditated and deliberate murder.

6-SER-1333-1334. As for McClain’s motive, all the prosecutor could

come up with was the fable of the scorpion and the frog. The moral of

the story was: sometimes people just do bad things for no reason

because it’s their nature. 6-SER-1383-1384.

But defense counsel argued otherwise. 6-SER-1336. He argued

that Jorgenson was not credible, due to her misremembering many

details, whereas Fox and McClain were credible. 6-SER-1340-1341,

1345-1346. He also stressed Phamous was absent at trial. 6-SER-13411342. He urged the jury to return a not-guilty verdict based on a self-

10

defense theory. 6-SER-1350-1351, 1362. Alternatively, he argued that

if McClain had an unreasonable belief in the need for self-defense or

acted excessively, at most that established voluntary manslaughter. 6SER-1350-1351, 1362.

In rebuttal, the prosecution mocked the defense’s theory,

commenting that “[t]he defense wants us to believe that Phamous, . . .

was just trying to pick [McClain] up. . . . and that . . . Ford attacked

him, putting him in a situation where he had to use deadly force . . . .”

6-SER-1369-1370. She added the defense attorney’s focus on Phamous

was misplaced:

[the] defense attorney was playing a big issue about

Phamous. Where is Phamous? Seems to be the theme of

the defense case, implying that if Phamous was produced,

Phamous could somehow help the defense in this case.

There’s no evidence of that.

6-SER-1374.

5. The jury instructions, deliberations, and verdict.

In preparing the final jury instructions, McClain’s attorney

requested a spoilation instruction against the prosecution for causing

Phamous’ unavailability. 6-SER-1298-1299. The trial court refused to

give that instruction. 6-SER-1299.

The court did, however, instruct on the various types of homicide

at issue:



first-degree murder (malice aforethought);



second-degree murder (murder without the elements of

deliberation and premeditation, or resulting from an unlawful

act dangerous to human life);

11



voluntary manslaughter (unlawful killing without malice

aforethought, or “heat of passion”); and



involuntary manslaughter.

6-SER-1416-1424; SSER-87-100. The court also instructed on selfdefense and “imperfect” self-defense. 6-SER-1426-1427; SSER-109-119.

After the court instructed the jury, the jury retired to deliberate.

During deliberations, the jury sent four notes to the court. First,

it asked about the difference between first and second-degree murder.

SSER-53. Second, it asked for 12 copies of the jury instructions on first

and second-degree murder. SSER-54 (requesting SSER-87-93). Third,

it asked for copies of McClain’s testimony. SSER-55. And fourth, it

requested readbacks of McClain’s testimony. SSER-56.

Ultimately, the jury found McClain guilty of first-degree

murder. 6-SER-1442-1443; SSER-51. The court imposed a 25-to-life

sentence on the murder count, and for a firearm enhancement,

imposed a consecutive five years. 6-SER-1480-1481; SSER-50.

F. Direct Appeal

McClain appealed. In 1995, the California Court of Appeal

affirmed, and the California Supreme Court subsequently denied

review. SSER-41-49.

G. McClain makes repeated efforts to locate Phamous, and

after a decades-long search, discovers that Phamous is

Georgia Brown.

Shortly after his conviction, McClain’s family put together

enough money to place newspaper advertisements, seeking

12

information on Phamous. 1-SER-28-29. They requested any

information regarding her whereabouts. 1-SER-43. These efforts

proved fruitless.

McClain then spent years writing to attorneys and investigators,

attempting to locate Phamous and secure counsel. 1-SER-29-30. He

was able to briefly secure the help of a jailhouse attorney, but after

their separation due to a prison housing change, McClain was no

longer able to obtain his assistance. 1-SER-29, 45.

In 2010, McClain received a letter from an attorney, Wendy

Koen. 1-SER-49. But in her opinion, McClain could not proceed until

he located Phamous. 1-SER-55. Consequently, McClain again placed

an advertisement on a webpage offering a reward for anyone who could

locate Phamous. 1-SER-30, 51.

Three years later, McClain placed another advertisement in a

newspaper seeking Phamous’ whereabouts and listing the phone

number of McClain’s mother. 1-SER-53. At long last, Phamous called

McClain’s mother. Phamous stated that her real name is Georgia

Brown. 1-SER-30. McClain’s mother relayed this to McClain, who

relayed this to attorney Koen. 1-SER-30, 55.

In 2014, Koen interviewed Brown and prepared a memo for the

California Innocence Project. 1-SER-55-56. But the California

Innocence Project rejected the case. 1-SER-56. And because McClain

and Koen could not agree on her proposed retainer, the communication

between the two came to a standstill. 1-SER-31, 58-60.

13

After failing with Koen, McClain wrote his counsel on direct

appeal. 1-SER-31. But that office informed McClain they could not

assist him either. 1-SER-62. He also, at various times, sought help

from wrongful conviction avenues—like innocence projects and the

Orange County Associate Defender—but none would represent him.

See 1-SER-33, 66-67, 73, 75.

H. Georgia “Phamous” Brown writes the Superior Court,

informing the court that her testimony would have been

favorable to McClain’s defense.

Separately, in 2015, Brown wrote a letter to the Orange County

Superior Court. 1-SER-64, 209; see also SSER-37-38. She explained

that Ford attacked McClain while McClain escorted her to her vehicle.

1-SER-209. She also explained that—only hours after the shooting—

police contacted her and she told them Ford had attacked McClain. 1SER-209. But police never contacted her again. 1-SER-209.

The court declined to act on the letter, calling it an ex parte

communication. 1-SER-64. Brown received a copy of that minute order.

SSER-37-38. After that, she “was done with the matter” and

“continued with [her] life and didn’t care to be involved after that.” She

worried about how it would affect her life and her family. SSER-38.

McClain also received a copy of that minute order, but had to

repeatedly ask to get Brown’s letter. In 2016, he finally received the

letter, and asked Brown to prepare an affidavit under penalty of

perjury. 1-SER-69. He wrote Brown about twice a month, and

attempted phone calls, until he realized she would not assist him.

14

SSER-35. As Brown later explained in an affidavit, she deliberately

avoided McClain. SSER-38.

I.

Collateral Review

1. The initial state petitions

In 2017, without an affidavit from Brown, and after repeated

attempts to secure legal help, McClain petitioned the Orange County

Superior Court for writ of habeas corpus pro se. 1-SER-171-273. He

argued, among other things, the newly discovered evidence of Brown’s

exculpatory statements and a violation of his due process rights by the

prosecution’s suppression of those statements. 1-SER-173-175, 183190. He attached Brown’s 2015 letter to the court in support of this. 1SER-209.

The Superior Court denied the petition in 2018. It stated the

Brady issue, somehow, should have been raised on appeal. 1-SER-27778. It also denied the claim related to Brown’s statement, because it

was not signed under penalty of perjury, nor was it material. 1-SER279.

In 2018, McClain then petitioned for writ of habeas corpus in

the California Court of Appeal. 2-SER-281-417. In late 2018, the court

denied the petition in an unexplained order. 2-SER-418.

2. Brown’s exculpatory 2019 affidavit.

Finally, in 2019, Brown had regrets that McClain had “been

imprisoned for so many years without the Court knowing the truth of

what actually happened.” SSER-38. She finally signed an affidavit and

mailed it to McClain. 1-SER-69-70; SSER-38.

15

Brown’s affidavit essentially confirmed everything McClain had

raised in his defense. See SSER-39-40. She explained that she had

signed the photograph with her moniker “Phamous” and placed her

pager number on it. As she exited the nightclub, Brown asked McClain

to walk her to her vehicle, because Ford and his friends had been

disrespectful to her, and Ford, or one of his friends, grabbed his crotch

telling Brown that he had “a big dick, and you should suck it. . . .”

SSER-39.

As McClain walked Brown to her vehicle, Ford approached

them. SSER-39. Once Ford got to them, he struck McClain in the face.

SSER-39-40. McClain stumbled back and collided with Brown, and

Brown fell to the ground. Then, McClain pulled out a handgun and

shot Ford. Brown ran. SSER-40.

Later that day, a Santa Ana police officer called Brown. That

officer explained he had obtained her number from the photograph.

Brown explained the above facts to the officer, and he told her that a

detective would follow up with her. But no one ever contacted Brown

again. SSER-40.

3. McClain returns to state court with Brown’s 2019

affidavit.

After obtaining this affidavit in 2019, McClain almost

immediately filed a new habeas petition in the Superior Court, reraising his previous arguments. 2-SER-419-500. He submitted Brown’s

affidavit, under penalty of perjury, to cure the deficiency the Superior

16

Court found the first time. 2-SER-485-486. But the Superior Court now

found the claim untimely and successive. 2-SER-502-503.

McClain then filed his petition in the California Court of Appeal.

3-SER-505-585. The court—evidently not knowing McClain had

already filed in the Superior Court—denied the petition without

prejudice to first allow for filing in Superior Court. 3-SER-586.

McClain refiled to clarify the court’s misapprehension, and the court

denied the petition without explanation. 3-SER-587-665.

Finally, in mid-2019, McClain petitioned for writ of habeas

corpus in the California Supreme Court. 3-SER-666-745. The court

denied the petition solely on timeliness grounds in 2020. 3-SER-746

(citing In re Robbins, 18 Cal. 4th 770, 780 (1998)).

4. The federal habeas petition

a. The district court finds equitable tolling appeared to

render McClain’s claim timely, but denies the claim

on the merits.

Following these state denials, in 2020, McClain petitioned the

federal court for a writ of habeas corpus. 1-SER-79-170. He argued, as

relevant here, a Brady violation for the suppression of Phamous’

exculpatory statement and the State’s “loss” of the photograph. 1-SER115-124.

The magistrate judge found that equitable tolling appeared to

render this claim timely, FER-9, but issued a report and

recommendation recommending denial of McClain’s petition on the

merits, SSER-10-34. The district court adopted this report and

recommendation. SSER-8-9. The court dismissed McClain’s petition,

17

but granted a certificate of appealability as to this Brady claim. SSER5-7.

b. The Ninth Circuit finds equitable tolling doesn’t

render McClain’s claim timely and finds no

prejudice—ignoring one of McClain’s arguments for

prejudice.

McClain appealed. As before, he argued a violation of Brady for

the State’s suppression of Brown’s statements. On the timeliness front,

McClain argued for equitable tolling. As part of that argument, among

other extraordinary circumstances standing in his path, McClain

argued the State’s Brady violation stood in his path. Appellant’s Reply

Brief, Docket 37, 10-11 (2023). On the prejudice front, McClain pointed

to the reasonable probability of a self-defense acquittal, or a lesser

conviction of voluntary-manslaughter or second-degree murder only.

Appellant’s Opening Brief, Docket 24, 31-33, 35 (2023).

Unlike the district court, however, the Ninth Circuit found that

McClain was not entitled to equitable tolling. While the court assumed

McClain exercised reasonable diligence, it found his inability to obtain

Phamous’ affidavit did not constitute an “extraordinary circumstance”

standing in his path that made it “impossible” to timely file a federal

petition. Pet. App. 4a-5a.

The Ninth Circuit also found that McClain did not suffer

prejudice from the State’s Brady violation. The court held that, even

though Phamous’ statements corroborated McClain’s defense that Ford

punched him before McClain drew his firearm, other witnesses did not

observe Ford act aggressively and McClain continued shooting as Ford

18

turned to run.2 This, the court held, defeated self-defense or a lesser

voluntary-manslaughter conviction. Pet. App. 6a. The court, however,

did not address McClain’s argument regarding the reasonable

probability of a lesser second-degree murder conviction.

Senior District Judge Bennett, sitting by designation, concurred

in judgment on the prejudice question only. On the timeliness issue,

Judge Bennett pointed out that the impossibility standard should be

interpreted leniently, citing Holland v. Florida, 560 U.S. 631 (2010).

He pointed out that, because the state trial court had rejected

McClain’s petition for lacking an affidavit—a non-existent requirement

under state law—filing any earlier would have been futile and

prejudicial. Pet. App. 8a-9a.

McClain then petitioned for rehearing, pointing out that the

court overlooked that the State’s Brady violation stood in McClain’s

path, incorporated the defunct “impossibility” standard for equitable

tolling, and overlooked the prejudice due to the possibility of a lesser

conviction of second-degree murder. But the Ninth Circuit denied the

petition for rehearing. Pet. App. 1a.

McClain now petitions this Court for a writ of certiorari.

2 The Ninth Circuit also referenced McClain firing shots from his car window

as he escaped as cutting against self-defense or voluntary manslaughter. Pet. App.

6a. But McClain did not shoot at anyone, he shot in the air to keep Ford’s friends

from retaliating against him. 5-SER-1047 (Fox); see also 5-ER-1190 (McClain). Thus,

these shots do not indicate anything about McClain’s mens rea at the time of the

shooting of Ford.

19

Reasons for Granting the Writ

A. This Court should grant certiorari to clarify the standard

for equitable tolling, particularly in Brady cases.

Federal habeas petitioners must bring their claims within one

year of the latest of various triggering dates. 28 U.S.C. § 2244(d)(1).

These dates include the date when the state-action impediment was

removed, or when the claim’s factual predicate could have been

discovered through due diligence. 28 U.S.C. § 2244(d)(1)(B), (D).

But even if the claim is untimely under this standard, equitable

tolling can render it timely. Holland v. Florida, 560 U.S. 631, 649

(2010). For equitable tolling to apply, a petitioner needs to show that:

(1) he has pursued his rights diligently, and (2) some extraordinary

circumstance stood in his way and prevented timely filing. Id. The

latter extraordinary-circumstances question is the issue here.

The extraordinary-circumstances question, as this Court

explained in Holland, is subject to equitable principles. Courts thus

make that determination on a case-by-case basis, avoiding mechanical

or rigid rules. Holland, 560 U.S. at 649-50. Doing so is necessary to

avoid the “evils of archaic rigidity . . . .” Id. at 650 (citations omitted).

1. The Courts of Appeal are divided on whether, to

establish extraordinary circumstances standing in a

habeas petitioner’s path, a petitioner need establish

that the circumstance made earlier filing “impossible.”

Notwithstanding Holland, the Courts of Appeal are divided as to

the standard for extraordinary circumstances: whether to apply the

flexible approach without categorical rules or whether the

20

extraordinary circumstances needed to make earlier filing impossible.

See Supreme Court, Rule 10(a).

Some circuits adhere to the flexible approach this Court

announced in Holland—eschewing mechanical and rigid rules. See,

e.g., Socha v. Boughton, 763 F.3d 674, 683-84, 688 (7th Cir. 2014). The

Ninth Circuit is ostensibly one of these circuits. Fue v. Biter, 842 F.3d

650, 657 (9th Cir. 2016) (en banc). As the Ninth Circuit observed in

2016, this impossibility language originated before Holland and

conflicts with that decision:

The word impossible crept into our jurisprudence before

the Supreme Court’s decision in Holland, which stressed

flexibility and a disdain for mechanical rules. Our postHolland cases have applied this impossibility standard

leniently, rejecting a literal interpretation. To the extent

that we have required that petitioners must demonstrate

that it was impossible to file a timely petition, such a

requirement is inconsistent with Holland’s requirement

that a habeas petitioner demonstrate only (1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and

prevented timely filing.

Id. (citations and quotation marks omitted). But that conflict

continues, as other panels of the Ninth Circuit have nonetheless

continued to cite this impossibility language—ostensibly applying that

standard literally. See, e.g., Razavi v. Seale, 786 F. App’x 722, 722 (9th

Cir. 2019); Camargo v. Ryan, 684 F. App’x 607, 609 (9th Cir. 2017).

As have other circuits. The Fourth, Sixth, and Eighth Circuits

impose the rigid requirement that the extraordinary circumstance

must have made filing an earlier petition impossible. See, e.g., Harris

v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (the Fourth Circuit re-

21

affirmed this language later a closely-related immigration context in

Lawrence v. Lynch, 826 F.3d 198, 203-04 (4th Cir. 2016), citing

Holland); Mann v. United States, 2023 WL 3479402, at *2-3 (6th Cir.

2023); Symmes v. Waddell, 446 F. App’x 821, 822 (8th Cir. 2012) (citing

Riddle v. Kemna, 523 F.3d 850, 857 (8th Cir. 2008) (en banc)).

Following these circuit’s leads, district courts—even those in

circuits that eschew the impossibility language—often rely on the

impossibility language. See, e.g., Everett v. Barrow, 861 F. Supp. 2d

1373, 1377 (S.D. Ga. 2012); Dennis v. McClain, 2023 WL 6065878, at

*3 (S.D. Ala. 2023); Martinez v. Allison, 2023 WL 3874310, at *3 (S.D.

Cal. 2023); Thomas v. Sayler, 2022 WL 4079378, at *3 (D.N.D. 2022);

Salinas-Tinoco v. Davis, 2018 WL 3979865, at *5 (N.D. Tex. 2018).

Thus, the courts are divided as to whether the extraordinary

circumstances needed to make earlier filing impossible.

That division changes whether a court will hear a federal habeas

claim at all. If a petitioner is lucky enough to have a court apply the

flexible standard announced in Holland, a court might hear the merits

of his constitutional claims. If he is unlucky enough to be on the other

side of the split, then his constitutional claims are forever foreclosed,

because—no matter how difficult timely filing may have been—it is

rarely impossible.

Due to this deep circuit split, and its grave consequences for

petitioners, this Court should grant a writ of certiorari to clarify the

correct standard for equitable tolling.

22

2. The impossibility standard is wrong under this Court’s

decision in Holland.

The circuits that apply the impossibility standard are wrong

under Holland. This Court never used the word “impossible” in

Holland. And for good reason: the Court eschews mechanical or rigid

rules. Holland, 560 U.S. at 649-50. But creating an impossibility

standard does just that—it imposes a rigid and mechanical

requirement that ignores the equities at play and carries with it the

“evils of archaic rigidity.” Id. at 650. Thus, Holland’s reasoning

suggests that this impossibility standard is wrong.

As does Holland’s holding. In Holland, Holland’s attorney

missed the AEDPA statute of limitations. But that didn’t make timely

filing impossible. Indeed, Holland ended up filing a pro se federal

petition when he learned of his attorney’s failure. Holland, 560 U.S. at

639-640. If the impossibility standard applied, this would have ended

the matter, because it still remained possible to timely file a petition

notwithstanding that attorney’s failures. But this didn’t end the

matter. See id. at 654 (remanding the case). Thus, if this impossibility

standard existed, this Court would have decided Holland differently.

Put simply, Holland never used the word impossible, eschewed

mechanical and rigid rules, and impliedly held that the impossibility

standard does not apply. Thus, the courts that hold that the

extraordinary circumstances must make filing impossible are wrong.

23

3. This impossibility standard is particularly inequitable

in cases of Brady violations—where the State bears the

responsibility for the wrongdoing

Not only is this impossibility standard wrong generally, it is

particularly inequitable in cases involving Brady violations. See

Holland, 560 U.S. at 650 (“specific circumstances, often hard to predict

in advance, could warrant special treatment in an appropriate case.”).

A Brady violation differs from other extraordinary circumstances

standing in someone’s path—it is a violation committed by the

sovereign. And because the sovereign violates Brady, it bears the

responsibility for it, not the petitioner.

For those reasons, in the closely-related “cause and prejudice”

analysis of procedural default, Brady violations establish cause

external to the petitioner. Banks v. Dretke, 540 U.S. 668, 691 (2004) (“a

petitioner shows ‘cause’ when the reason for his failure to develop facts

in state-court proceedings was the State’s suppression of the relevant

evidence . . . .”). In fact, Banks clarified that a “rule thus declaring

‘prosecutor may hide, defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.” Id. at 696.

But, in a Brady case, imposing an impossibility standard on

petitioners does just that. The impossibility standard requires a

petitioner, notwithstanding the State suppressing exculpatory

evidence, to go to extraordinary lengths to find that evidence.

Otherwise, he risks a court saying that timely filing—although

extremely difficult—was not technically impossible.

24

That is precisely what happened to McClain. The State

suppressed the best evidence in McClain’s defense—a witness who

confirmed the decedent first struck McClain before McClain shot. Then

McClain spent years locating that witness. When he finally did, he

attempted to gain her sworn affidavit—something the state court

erroneously told McClain he needed to do. And once McClain obtained

it, the courts told him this delay rendered his claim untimely, because

it was not impossible to file an earlier petition.

But the State put McClain in the position of locating and

obtaining the evidence that it suppressed. The prosecutor hid, McClain

sought. And the time it took McClain to seek rendered his claims

untimely. While it may not have been literally impossible to file an

earlier petition, the State erected the barriers to filing one—making

timely filing extremely difficult. Rewarding the State for this

misconduct is decidedly inequitable.

In short, because the State bears the responsibility for a Brady

violation, it is particularly inequitable to hold petitioner’s to this

erroneous impossibility standard in Brady cases.

B. This Court should reverse the Ninth Circuit’s alternative

prejudice ruling, because the Ninth Circuit ignored

McClain’s clearest argument for prejudice.

In the alternative to the timeliness holding, the Ninth Circuit

held that McClain failed to demonstrate prejudice. Specifically, the

court rejected McClain’s arguments that there existed a reasonable

probability that the suppressed witness’ statement would have

established self-defense or a lesser voluntary-manslaughter conviction

25

only. Pet. App. 6a-7a. The court, however, ignored McClain’s remaining

argument for prejudice—the reasonable probability of a lesser

conviction of only second-degree murder.

Second-degree murder in California is “the unlawful killing of a

human being with malice aforethought but without the additional

elements, such as willfulness, premeditation, and deliberation, that

would support a conviction of first degree murder.” California v.

Knoller, 41 Cal. 4th 139, 151 (2007); see Cal. Penal Code §§ 187(a), 189.

In this respect, the suppressed witness’ statements evince that

McClain had no premeditated or deliberated plan to take a life.

McClain did not carefully think or weigh his options. See SSER-90

(defining deliberate and premeditated). Rather, he shot only after the

decedent punched him in the head. See SSER-39-40. That sudden

attack evinces that McClain had no premeditation or deliberation to

his actions—it happened suddenly when McClain was dazed from a

punch to the head.

Seeing this issue, the jury asked the trial court about the

differences between first and second-degree murder, requested copies

of those instructions, requested copies of McClain’s testimony, and

requested readbacks of McClain’s testimony. SSER-53-56. These

questions evince that the jury struggled to find any evidence of

premeditation or deliberation.

As did the prosecutor. During closing arguments, she told the

fable of the scorpion and the frog. The moral of the story was:

sometimes people just do bad things for no reason because it’s their

26

nature. 6-SER-1383-1384. In other words, the prosecutor had no idea

why this happened and struggled to come up with a motive for why

McClain would act with premeditation or deliberation. Given even the

prosecutor’s professed ignorance, the suppressed witness’ statements

could have easily tipped the balance to a second-degree murder

conviction only. Thus, McClain demonstrated a reasonable probability

of a different result.

The Ninth Circuit, however, simply ignored this argument. See

Pet. App. 6a-7a. By ignoring a strong argument for prejudice, even

after McClain pointed out this oversight in a petition for rehearing, the

Ninth Circuit “far departed from the accepted and usual course of

judicial proceedings” such that it calls for “an exercise of this Court’s

supervisory power . . . .” See Supreme Court, Rule 10(a). Therefore, this

Court should either grant certiorari on this prejudice question or

summarily reverse the Ninth Circuit’s prejudice holding.

27

Conclusion

For these reasons, the Court should grant McClain’s petition,

vacate the Ninth Circuit’s judgment, and remand.

Respectfully submitted,

CUAUHTEMOC ORTEGA

Federal Public Defender

November 8, 2023

D A L E F. O G D E N

Counsel of Record

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012

(213) 894-2854

dale_ogden@fd.org

Counsel for Petitioner

J AMES J ORDAN M CC LAIN