# Petition for Writ of Certiorari — Burton v. Fairman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1027%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 535 U.S. 930 ## Text Supreme Court, U.S. FILED Y ¥11010 DEC 2 8 200) No. 01-_ OP FACE OF THE Ciutat In The Supreme Court of the United States + ANTHONY BURTON, Petitioner, J.W. FAIRMAN, Warden, Respondent. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit o¢— PETITION FOR A WRIT OF CERTIORARI ¢ CHARLES D. WEISSELBERG ELIZABETH SEMEL CENTER FOR CLINICAL EDUCATION UNIVERSITY OF CALIFORNIA ScHOOL OF Law (BOALT HALL) Berkeley, CA 97420-7200 Telephone: 510-643-8159 Facsimile: 510-642-3856 Attorneys for Petitioner GeorceE A. CUMMING, JR. Counsel of Record Kirstin E. Wo LF DAWN CEIZLER BrRosECK, PHLEGER & Harrison LLP One Market, Spear Tower San Francisco, CA 94105 Telephone: 415-442-1198 Facsimile: 415-442-1910 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 SPEC QUESTIONS PRESENTED 1. When a federal habeas petitioner seeks equitable tolling of the one-year limitations period of the Antiter- rorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §2244(d)(1), should the district court apply a conclusory “extraordinary circumstances” standard, such as adopted by the Ninth and some other Circuits, or should the lower court apply the factual analysis required by the Sixth Circuit? 2. Does a habeas corpus petitioner discover the “factual predicate” of his claims, which commences the running of the AEDPA limitations period under Section 2244(d)(1)(D), when he receives “notice” of some facts, where those facts will not support a good faith petition under the pleading and evidentiary standards for collat- eral relief in the state court? 3. In holding that the petitioner failed to make a gateway showing of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995), did the appellate court err by (a) summarily rejecting compelling new evidence from the State’s key witness without a hearing of any kind, and (b) applying a “sufficiency of the evidence” test to the remaining evidence, rather than the standard required by Schlup? TABLE OF CONTENTS Page COSESTIOING PRICE GOD ccc sesccvccsctesoassvcves i Het 8 tk rrr errr rr rire rrr rrr errr ory. 1 pe es 8 er rr err rr re 1 STATUTORY PROVISION INVOLVED................ 1 STATEMENT OF THE CASE..............-seeeeeeeee 2 Pan GRO oon oidinc cccdcccvevisescccaserverssees 2 B. The Evidence at Trial in 1982.................. 4 C. Ronald Washington Confesses in 1995 ......... 5 D. 1996: Ronald Confesses Again, and Provides a Handwriting Sample that Leads to the Authen- tication of Fils. 1995 LAG? s...cscccsccvonenssss 7 E. Mr. Burton’s Efforts to Secure Collateral Relief.... 9 REASONS FOR GRANTING THE PETITION ....... 11 A. The Court Should Resolve Circuit Disagreement on the Standards for “Equitable Tolling” of the AEDPA Limitations Period, and Clarify the Cir- cumstances Under Which Equitable Tolling is WIN osc cc i'd x cece 11 1. The Conflict and its Importance............ 11 2. The Need for Resolution and Guidance.... 15 B. The Court Should Clarify that the Limitations Period Begins to Run when a Reasonably Dili- gent Petitioner Can File a Non-Frivolous State Femvens FOGMOR: «sis ecdenedsd oes 18 ill TABLE OF CONTENTS - Continued Page C. The Court Should Grant Review or Summarily Reverse Because the Court of Appeals’ Summary Disposition Conflicts with Schlup v. Delo....... 23 1. The Court of Appeals Erred in Not Remand- ing for a Credibility Determination......... 24 2. Alternatively, the Court of Appeals Inap- propriately Applied the Jackson v. Virginia Standard in Rejecting the New Evidence... 26 ER 29 iv TABLE OF AUTHORITIES Page CASES Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001) .......... 17 Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988)......... 12 Baja v. Ducharme, 187 F.3d 1075 (9th Cir. 1999) ...... 21 Baskin v. United States, 998 F.Supp. 188 (D. Conn. 6 bei dCs RAT kL KREME na 14 Bousley v. United States, 523 U.S. 614 (1998) ......... 24 Calderon v. United States District Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)....... 11, 12, 13, 14 Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998)..... 11, 12 Duncan v. Walker,-533 U.S. 167, 121 S.Ct. 2120 Sas sce kv ans eenees tind saad area tou 11, 19, 20 Dunlap v. United States, 250 F.3d 1001 (6th Cir. RNa vcd ukasuaad eccaaivees cons bee eens 12, 13, 15 Easterwood v. Champion, 213 F.3d 1321 (10th Cir. POT Tey Pee Pr re may: Pe mne ane Pree 15 Erwin v. Elo, 130 F.Supp.2d 887 (E.D. Mich. 2001) .... 13 Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)........ 15 Flanagan v. Johnson, 154 F.3d 196 (Sth Cir. 1998)..... 21 Frye v. Hickman, __ F.3d ___, 2001 U.S. App. Lexis Berek CO. Ge FP A bbe Wihd ee dkercan eden lees 14 Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) ...... 12 Glass v. Vaughn, 65 F.3d 13 (3d Cir. 1995) ........... 25 oe eS: Vv TABLE OF AUTHORITIES - Continued Page Harris v. Hutchinson, 209 F.3d 325 (4th Cir. ry rr rere en er errr 11, 12, 14 Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001)..... 21, 22 Jackson v. Virginia, 443 U.S. 307 (1979)............ 27, 28 Jihad v. Hvass, 267 F.3d 803 (8th Cir. 2001) .......... 11 Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001) .... 12 Kyles v. Whitley, 514 US. 419 (1995).............006. 23 McCoy v. Norris, 125 F.3d 1186 (8th Cir. 1997)....... 25 Miller v. Marr, 141 F.3d 976 (10th Cir. 1998)...... 11, 12 Miller v. New Jersey State Dept. of Corrections, 145 Pus: We Ge a I bob's vedoedebeebecsceesecs 11 Mooney v. Holohan, 294 U.S. 103 (1935) .............. 23 Murray v. Carrier, 477 U.S. 478 (1986) ............ 26, 27 O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc), aff'd on other grounds, 521 U.S. 151 Cs Kid au boca een ee ere ceded eee 25 People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 CE cnc cows en senda h dete ees as enhendees nes 7, 21 People v. Martinez, 36 Cal. 3d 816, 205 Cal. Rptr. Se Es ev 0k 5 ee ees pekeres ees 7, 21 Sandvik v. United States, 177 F.3d 1269 (11th Cir. NK bana aheeans aka Fa ea cae Peay on hae 12 Schlup v. Delo, 513 U.S. 298 (1995) ......... 3, 11, 23-29 Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000)........ 12 Stead v. Head, 219 F.3d 1298 (11th Cir. 2000)......... 14 vi TABLE OF AUTHORITIES - Continued Page Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999)........ 14 United States ex rel. Bell v. Pierson, 267 F.3d 544 (7th i elke ee che ee eee ee CR een eeeteks c4ee% 25 United States v. Agurs, 427 U.S. 97 (1976)............ 23 United States v. Griffin, 58 FSupp.2d 863 (N.D. Il. EE ao ecg ekene ks abe 6b SERS EUSO ES OSSSE07 13 DE RUSS T Eb Pine badeaeunseébeeesntcedisesense es 13 Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) .... 15 Wilkerson v. Cain, 233 F.3d 886 (5th Cir. 2000) ....25, 28 Williams v. Taylor, 529 U.S. 420 (2000)............... 19 Statutes & RUuLEs Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, 28 U.S.C. §2244(d)(1)..... passim 28 United States Code NN foc wsicnuyeeueneevpedtsnessussnedens 1 §2244(d)(1)(D) .....0.ceceececececeeceeeeeeee 3, 18-22 RNS hE Se os eal a 1 ERE el ee ee 1, 20, 22 i hee. oo hrc tieedecthince Pen 24 California Rules of Court Nn a a oh ak edie hn ait si uewaw an 16 Vii TABLE OF AUTHORITIES - Continued Page ey RG nbs leer dds beeen ed enewaens 17, 20 eS ee SS. RR rr ee porn rs 19 Local Rule 26.1, United States District Court for the Central District of California.................. 10 OTHER AUTHORITIES AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LAN- SAE Ge Ge Bi on cawntbetiweesndsescedes seuss 19 Wesster’s TH1rRD New Int’t DictTIONArRy, UNABRIDGED PE cuicdehevaseuracaesinekevistldueccaenttecin 19 OPINIONS BELOW The opinion of the court wf appeals (App., infra, 1a-3a) is not reported. The final order of the district court (App., 4a), and the final report and recommendation of its mag- istrate judge, adopted by the district court (App., 5a-12a), are not reported. JURISDICTION The district court had jurisdiction of petitioner’s habeas corpus petition under 28 U.S.C. §2254; its final judgment was entered November 2, 1998. App., 4a. The court of appeals issued a timely Certificate of Appeal- ability (App., 13a-16a), and thus had jurisdiction under 28 U.S.C. §2253(c)(1). Its judgment was entered August 15, 2001 (App., 1a), and a timely petition for rehearing was denied October 2, 2001 (App., 17a). This petition for a writ of certiorari therefore is due on or before January 2, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). STATUTORY PROVISION INVOLVED 28 U.S.C. §2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), is printed at App., infra, 18a-21a. ¢ STATEMENT OF THE CASE A. Summary Petitioner Anthony Burton was convicted of murder in the 1981 death of one Fred Wright. The decedent was accosted by three persons at the end of an alley in Pomona, California, where he was shot by at least two of them. The State’s chief trial witness was Ronald Washing- ton, a “scaird” thirteen-year-old boy who admitted that he was one of the three assailants. Granted immunity by the State, Ronald denied that he was armed, and claimed instead that Mr. Burton was one of the two shooters. The State also immunized Ronald’s brother, sixteen-year-old Derek Washington, who likewise exculpated himself and implicated Mr. Burton. The prosecutor therefore urged the jury to convict Mr. Burton because of “the direct evidence, the eyewitness testimony of Ronald Washington and Derek Washington that they actually saw the guns fired.” (ER 448).} Thirteen years after the trial, Ronald voluntarily came forward, and twice confessed that his trial testi- mony was false, that Mr. Burton was actually innocent of Wright’s ,murder, and that he perjured himself at trial because, in Ronald’s own words, “D.A. Solomon said if I put him Anthony Burton at the seen, he would drop charges on me.” (ER 117). Ronald made his first confession in a letter he wrote Mr. Burton and mailed to petitioner’s wife in 1995 (ER 109). Ronald then confessed again when he was 1 “ER” references are to the excerpts of record below. All emphasis in materials quoted in this Petition has been added. interviewed by a criminal investigator in 1996 (ER 114-17). After marshaling the evidence of Mr. Burton’s actual innocence and prosecutorial misconduct at trial, his vol- unteer lawyer filed a fully developed .abeas petition with the Supreme Court of California (ER 158). The court denied it without comment on January 14, 1998. (ER 179). Mr. Burton, however, did not learn of the denial for over two months. When his lawyer finally told him what had happened, he also told Mr. Burton that he could not assist him in pursuing federal habeas relief (ER 8). With his wife’s help, Mr. Burton filed a pro se petition (his first) in the district court on May 19, 1998 (ER 1). The district court dismissed the petition on pro- cedural grounds, holding that it was filed about two months late under the one-year limitations proviso of the AEDPA, 28 U.S.C. §2244(d)(1), and that there was no basis for equitable tolling. App., 4a-12a. The district court completely ignored the question whether, under Schlup v. Delo, 513 U.S. 298 (1995) (“Schlup”), the evidence of peti- tioner’s innocence provided a “gateway” to the plenary consideration of his constitutional claims. The court of appeals granted Certificates of Appeal- ability as to equitable and statutory tolling, and on the Schlup issues that the district court had ignored. (App., 13a-16a). The panel that then heard the case affirmed the dismissal, holding that (1) equitable tolling is reserved for unexplained “extraordinary circumstances;” (2) petitioner discovered the “factual predicate of his claims” (28 U.S.C. §2244(d)(1)(D)), when his wife received Ronald’s letter of confession in 1995, rather than when petitioner obtained admissible evidence of it in 1996; and (3) Ronald’s letter “is not sufficient proof of Burton’s innocence, given Derek Washington’s similar testimony, inculpating Bur- ton at trial.” App., 2a-3a. ; B. The Evidence at Trial in 1982 The Pomona police arrested four suspects in the mur- der of Wright. Two were adults — one Anthony Sneed and petitioner Burton — and the other two were the juvenile Washington brothers. It became clear, however, that only three of the four were complicit, for all the witnesses testified that one of the four broke off from the others, and remained “up the alley” when Wright was shot at the alley’s mouth. That fourth person was objectively inno- cent within the meaning of Schlup, and had all four been tried together, one would have been exonerated. But the jury was not permitted to see the truth in this light. The State tried only the two adults, Sneed and_ Mr. Burton, and granted immunity to the Washington brothers. The evidence at trial established that Sneed was one of the shooters. There was also considerable evidence that one or both Washington brothers also shot the dece- dent, and that Mr. Burton did not. Ronald Washington ~ admitted he wore a distinctively orange-colored jacket (ER 321), and prosecution eyewitness Hal Spring testified that he saw the assailant wearing this jacket fleeing the murder scene with a gun in his hand. (ER 242, 251-52). Indeed, as Ronald confessed many years later: “Cause in the alley, I was their. Howl Spring seen me their at the seen. When all this took place, Anthony Burton was up the alley ...” (ER 109). Another prosecution eyewitness, Leon Moore, corroborated Spring’s account, testifying that Ronald was “holding something” at the time of Wright’s murder. (ER 281-83). Defense eyewitness Quin- ola Arnold testified that Mr. Burton was “up the alley” speaking with her at the very moment the gunfire erupted at the alley’s mouth. (ER 401-08). And Derek Washington for his part had an argument with the dece- dent at a party just hours before the shooting. (ER 394). The State sought to overcome this evidence by offer- ing immunity to the two juveniles. Ronald and Derek Washington each then testified that Mr. Burton was at the mouth of the alley and was the second shooter, and that Derek was the innocent fourth suspect “up the alley” when the murder occurred. (ER 309-13; 362-66). Mr. Bur- ton is now serving a life sentence for a murder because of — again to use the prosecutor’s words to the jury — “the eyeitness testimony of Ronald Washington and Derek Wash- ington that they actually saw the guns fired.” (ER 448). C. Ronald Washington Confesses in 1995 Thirteen years after the trial, Ronald Washington twice confessed that the facts were quite different than he and his brother portrayed them at the trial. Ronald made his first confession in a letter that he wrote to petitioner, and mailed to him in care of his wife, Robin Burton. It states: “I am writing to let you know, I know it has been along time ago, in [and] you know I was scaird even though Mr. Solomon told me he didn’t wont me he wanted the both of you. Cause you was older. That why I put you at the 6 seen. If I can I would like to clean it up now if I can. “I know it has been a long time in I should have been did this cause I do allway think about you, cause I wish thing[s] could have been different. So now I am coming forward. I wish I can change something. I no I can’t change the pass. But I can do right by it now. “Cause in the alley I was their. Howl Spring seen me their at the seen. When all this took place Anthony Burton was up the alley cause he really didn’t no his way around. I most definely no Anthony Burton didn’t do it. /s/ Ronald Washington.” (ER 109). After receiving this letter, Robin Burton asked a state judge how she could use it to clear her husband. The judge replied that she should “seek counsel and have counsel begin an investigation” to determine “if it would be appropriate to seek some relief either in a trial court or at the appellate level,” because “a judge would simply not have the jurisdiction to act on your request without the assistance of attorneys.” (ER 180). This was good advice, for the State has consistently argued that Ronald’s 1995 letter was unauthenticated, inadmissible and incompetent - labeling it “an undated, unaddressed, unsworn, almost unintelligible letter, pur- portedly written by Ronald” - that would not entitle petitioner to any relief, or even an evidentiary hearing, under the strict pleading standards to which the Califor- nia courts subject collateral relief petitioners.? D. 1996: Ronald Confesses Again, and Provides a Handwriting Sample that Leads to the Authentica- tion of His 1995 Letter After a long search, petitioner’s wife found an attor- ney, James Farley, willing to assist her husband on a pro bono basis. Farley reviewed the police reports and the evidence and transcript of the trial, and enlisted the aid of two volunteer experts, a criminal investigator and a handwriting examiner. (ER 161). The investigator, Wil- liam Kurta, located Ronald at a state prison, and inter- viewed him there on May 22, 1996. Ronald immediately asked him, “there’s no statute of limitations on murder, is there?,” to which Mr. Kurta truthfully replied that there was not. (ER 115). Ronald therefore knew that the state- ments he had made in his letter, and those he was about to make to the investigator, were against his penal inter- est. Nevertheless, with nothing to gain and much to lose, Ronald confessed again, as Kurta recorded in his memo of the same day: 2 See the State’s “Informal Response” in the Supreme Court of California, ER 172-78 (citing People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259 (1995) and People v. Martinez, 36 Cal. 3d 816, 821-22, 205 Cal. Rptr. 852 (1984)). The State used the same words - “an undated, unaddressed, unsworn, almost unintelligible letter, purportedly written by Ronald” — in assailing Ronald’s confession in the court of appeals below (Appellees’ Brief, pp. 36, 40). 8 e “[Ronald] Washington said that at the time of the shooting, Burton was at the top of the alley with Washington’s brother, Derrick Ross. He stated that earlier they had gone to a party and that Burton got into it with some guys and they had charged at Burton, which is when Washington gave Burton the gun to defend himself with. When they split from the party, Burton gave Washington the gun back in the car on the way back to his mother’s house.” (ER 115-16). e “While they were kicking back at his mother’s house, they saw Berty, aka ‘Twirp,’ Fred [Wright] the guy that got killed, and ‘Bobo,’ a girl, pass by. When they ran through the back yard, Derrick and Anthony Burton, stopped in the middle of the alley. Washington said that he had a gun and that Anthony Sneed had a .22 cal rifle, and they both ran down the alley and that is when ‘the shit happened.’ Washington said that the wit- ness Hal Springs then saw Washington and Leon in his back yard.” Id. e “Washington said that the D.A. told him that if he put Burton at the scene, he would drop charges against him, which he subsequently did. . . . He said he was 12 or 13 years old at the time, and didn’t want to go to jail.” Id. The investigator then noted “throughout the inter- view, it was obvious that the way Washington was telling it, he was the actual shooter but is not going to say so as he believes he would then be charged with the murder.” (ER 116). He therefore asked Ronald for a handwriting sample, and in Mr. Kurta’s presence, Ronald wrote and signed this statement: “5-22-96 “D.A. Solomon said if I put him Anthony Burton at the seen he would drop charges on me. /s/ Ronald Washington.” (ER 117). Richard Fox, the pro bono handwriting expert, then compared the 1995 letter to this sample, and to other known samples of Ronald’s handwriting. In a report dated November 19, 1996, Mr. Fox concluded that the person who executed the 1995 letter was Ronald Wash- ington. (ER. 118-20, and Exhs. 2-5 thereto). The documents reveal Ronald’s perjury; he told the jury that petitioner Burton shot Fred Wright when in fact Mr. Burton “was up the alley” just as Quinola Arnold testified at trial. He told the jury that he did not have a gun, when in fact he ran down the alley with a gun when “the shit happened,” just as Hal Spring testified at trial. And Ronald told the jury that he “didn’t know” about a conversation with the prosecutor, when in fact the pros- ecutor told him he would “drop charges” if “I put Anthony Burton at the seen” of Wright’s murder. E. Mr. Burton’s Efforts to Secure Collateral Relief After obtaining this reliable and admissible evidence of Mr. Burton’s innocence and Ronald’s State-induced perjury, attorney Farley filed a comprehensive habeas petition in the Supreme Court of California on March 21, 1997. (ER 158). It was denied without comment on Janu- ary 14, 1998 (ER 179), but neither the court nor the State’s Attorney General notified Mr. Burton, presumably because he was represented by volunteer counsel. Attor- ney Farley, however, did not inform Mr. Burton of the 10 denial for over two months, and Mr. Burton thus did not learn of the ruling until March 21, 1998. At this point Mr. Farley said that he “could not represent [Burton] on the federal level as he is not familiar with federal procedure and due to his trial case load.” (ER. 8). Counsel’s unfamil- iarity with federal procedure also undoubtedly explains why he did not tell Mr. Burton of the time remaining under the AEDPA’s one-year limitations period. Mr. Burton was left to proceed on his own. On March 22, the very next day after he learned of the state court’s denial, he asked the prison librarian for the habeas corpus petition form that the district court requires peti- tioners to use,? and for standard reference books on fed- eral habeas practice. But the prison library was not even open for business until June 1998, several months later. “Paging services” were available when Mr. Burton needed help in March, yet - as prison staff were eventu- ally forced to acknowledge - the books he requested “were not and still are not available.”* The prison never provided the mandatory habeas corpus forms, and peti- tioner’s wife eventually had to drive to the district court in Los Angeles to obtain them. (ER 50). With the assis- tance of his wife, Mr. Burton prepared and filed a pro se petition (his first) in the district court on May 19, 1998. (ER 1). 3 See Local Rule 26.1 (C.D. Cal.) (“A petition for a writ of habeas corpus . . . shall be submitted on the forms approved and supplied by the Court.”) 4 See Memorandum of Corcoran Prison Litigation Assistant Tamara Cowell to Deputy Att’y Gen’l Wm. Davis, Jr., dated October 8, 1998 (district court docket Item No. 23, Dec. Davis, Jr., cited at App., 9a, n. 1). 11 Without considering Schlup at all, the district court denied the petition as untimely under the AEDPA. (App., 4a-12a). The court of appeals affirmed, holding that equi- table tolling was not available, that petitioner discovered the “factual predicate” of his claims when his wife received Ronald’s initial letter in 1995, and that Ronald’s letter was not “sufficient proof” of Mr. Burton’s inno- cence, given the testimony at trial by his brother, Derek Washington. App., 2a-3a. + REASONS FOR GRANTING THE PETITION A. The Court Should Resolve Circuit Disagreement on the Standards for “Equitable Tolling” of the AEDPA Limitations Period, and Clarify the Circum- stances Under Which Equitable Tolling is Available 1. The Conflict and its Importance Although the State urged otherwise below, the courts of appeals are generally agreed that AEDPA’s one-year limitations proviso is subject to equitable tolling.> The lower courts do not, however, agree at all as to the circumstances in which equitable tolling is, or may be, 5 See, e.g., Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001); Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th Cir. 2000); Calderon v. United States District,Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc); Davis v. Johnson, 158 F.3d 806, 810 (Sth Cir. 1998); Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). , Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2129-31 (2001) (concurring opinions of Justices Souter and Stevens). 12 available. A number of the circuits have held that tolling is only available in “rare,” “exceptional,” or “extraordin- ary” circumstances,® and the court below adhered to that view as well. App., 2a-3a. But these catch-phrases have little meaning, and pro- vide no real guidance to the district courts that must apply them to the realities of the facts at hand. The Sixth Circuit, in contrast, employs a more nuanced approach _ that gives district courts something meaningful and tang- ible to consider. In Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001), the circuit directed its district courts to consider five factors: (1) the petitioner’s lack of actual notice of the filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of preju- dice to the State; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim. (Id., 250 F.3d at 1008, citing a pre-AEDPA decision, Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)). Recognizing that other circuits apply a “rare or excep- tional” or “extraordinary” circumstances standard, the Sixth Circuit. nevertheless stated: 6 See Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001) (“extraordinary circumstances”); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000) (same); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (same); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (same); Miller v. Marr, 145 F.3d 616, 618 (3d Cir. 1998) (same); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“in rare and exceptional circumstances”); Davis v. Johnson, 158 F.3d 806, 811 (Sth Cir. 1998) (same); Calderon v. United States District Court (Beeler), 128 F.3d at 1288-89 (“extraordinary circumstances beyond a prisoner’s control”). 13 “While we value continuity in standards with our sister circuits, we think it more important to be consistent within our own Circuit as to the standards we are to apply. We therefore hold that hereafter equitable tolling shall only be appropriate, in habeas and all other cases, after a court has properly considered and balanced the factors set out in Andrews v. Orr unless there is congressional authority to the contrary.” (Dunlap, 250 F.3d at 1009.) The Court should resolve this conflict, particularly because the catch-phrases employed by circuits other than the Sixth simply generate confusion in the district courts. Here, Mr. Burton’s volunteer lawyer failed to advise him for over two months that the California court had denied his habeas petition, and then resigned with- out advising petitioner that the AEDPA limitations period had resumed running. Once Mr. Burton learned of the denial, he immediately sought help in the prison law library, only to learn that the library had no habeas corpus forms, and could offer little assistance. These same circumstances have provoked quite different results in the lower courts. A number of courts have held that an attorney's abandonment of a client or failure to advise the client about a court decision may constitute grounds for equita- ble tolling. See, e.g., Calderon v. District Court (Beeler), 128 F.3d at 1289 (equitable tolling where appointed capital habeas counsel resigned); Erwin v. Elo, 130 F.Supp.2d 887, 890 (E.D. Mich. 2001) (equitable tolling where petitioner’s counsel never notified him of state court ruling); Vasquez v. Greiner, 68 F.Supp.2d 307 (S.D.N.Y. 1999) (ordering a hearing to determine whether petitioner’s counsel failed to notify client of decision); United States v. Griffin, 58 14 F.Supp.2d 863, 870 (N.D. Ill. 1999) (ordering a hearing to determine if attorney failed to file an appeal after being instructed to do so); Baskin v. United States, 998 F.Supp. 188, 189-90 (D. Conn. 1998) (equitable tolling where coun- sel failed to notify petitioner that certiorari had been denied). On the other hand, some courts take the view that, no matter the facts, “extraordinary” or its synonyms trump all. See, e.g., Frye v. Hickman, __ F.3d __, 2001 U.S. App. Lexis 25914 (9th Cir. 2001) (as amended) (attorney’s mis- calculation of time period is not an extraordinary circum- stance); Stead v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (same); Harris v. Hutchinson, 209 F.3d at 330-31 (same); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (same). There may be stronger reasons to permit tolling where a lawyer fails to advise about a ruling that a client cannot discover through other means, rather than when a lawyer misinterprets a statute, but surely clients ought to be able to rely upon their attorneys in both sets of circumstances. Regrettably, the cases do not generally discuss why the different outcomes may be justified, and so they promote arbitrary decisionmaking.” The same conflict and arbitrariness attend cases that address whether severe problems in prison libraries may support tolling. At least two circuits have recognized that inadequacies in a prison law library may be grounds for 7 Frye may purport to confine Beeler to its facts; counsel in Beeler was appointed by statute. See Frye, 2001 U.S. App. Leus 25914, at *4. Nevertheless, a client ought to be justified in relying upon an attorney, whether appointed or pro bono, and it is difficult to understand why the fact of appointment should make one case suitable for equitable tolling and the other not. 15 equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc) (failure to provide copy of AEDPA may support tolling); Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000) (lack of library access to an appellate case may support tolling). The Fifth Circuit disagrees. In its view, ignorance of the law — even when occasioned by the prison’s failure to provide a copy of the AEDPA to the petitioner - is insufficient to warrant toll- ing. Felder v. Johnson, 204 F.3d 168, 171-74 (5th Cir. 2000). 2. The Need for Resolution and Guidance The standard for equitable tolling matters, and a meaningful standard matters most. An undifferentiated conclusory standard for tolling, such as “extraordinary circumstances,” leads to decision by whim. On the same essential facts, some courts will reject petitions, while others will accept them. The current state of confusion also provokes unnecessary litigation because petitioners do not know what reasons will permit a late filing. This Court should grant review, determine the appropriate standard for tolling, and provide clear guidance to the lower courts. This case shows why the standard is important, and it affords an appropriate opportunity to clarify the law for the lower courts. Had Mr. Burton’s petition been filed within the Sixth Circuit, it is likely that equitable tolling would have been granted under the Dunlap approach, for these reasons: e Mr. Burton lacked actual and cor«tructive notice, because for 66 days, he was jnorant 16 of the state court’s denial. Mr. Burton reason- ably depended on his attorney for informa- tion about his case and a person with a life sentence ought not lose the opportunity to file a first federal petition because he was abandoned by his lawyer.® e Mr. Burton exercised due diligence in pursu- ing his rights. His wife sought legal advice and representation right after she received Ronald’s original letter. The volunteer attor- ney and his experts appropriately estab- lished Ronald’s authorship of the letter and its credibility, and all the new evidence was submitted to the state court in a petition faithful to the exhaustion and factual devel- opment obligations of federal-state comity. e The very day after Mr. Burton learned of the state court denial, he asked the prison for habeas forms and books on habeas practice. See ante, p. 10. e There was no prejudice to the State. All the evidence and arguments that petitioner later presented in federal court were also present- ed to the California court, and so the State was not put in the position of defending new claims or evidence in federal court. Indeed, the magistrate judge below argued that Mr. Burton did not “need” the prison library, because his federal petition presented “the 8 States wishing to assure that the AEDPA “clock” resumes running instanter can easily mail notice of state court’s denial to the prisoner, whose whereabouts are certainly no secret. Cf,, CauiForniA Rutes or Court Rule 2(a)(2) (180-day period for filing notice of appeal shortened to 60 days whenever the adverse party serves notice of entry of judgment “upon the party filing the notice of appeal.”) 17 same claims petitioner raised before the California Supreme Court,” (Apr., 9a), thereby demonstrating lack of prejudice to the State.? e Mr. Burton was reasonable in finding an attorney and in depending upon the attor- ney’s expertise. Mr. Burton had been in regu- lar contact with his lawyer and had no reason to suspect that counsel would fail to tell him of the state court’s ruling. Thus, it would not be fair to impute to Mr. Burton knowledge acquired by his attorney but not communicated to him. Indeed, a holding that prisoners cannot rely upon their attorneys for information would prompt daily collect phone calls to state courts, an outcome that this Court ought not promote. At the end of the day, however, none of this — not even the evidence of petitioner’s innocence — mattered in the court below. The court simply repeated the “extraor- dinary circumstances” palliative and, strangely, cited a decision that would seemingly support equitable tolling. App., 3a.!° Because the equitable tolling standard in the 9 Although the “relation back” provision of Feb. R. Cu. P. 15(c) may not apply — at least not technically - to a federal petition whose core, as here, is the previously-filed state petition, the Rule nevertheless reflects the well-settled principle that an adversary is never prejudiced when a later pleading presents claims that “arose out of the conduct, transaction or “occurrence set forth, or attempted to be set forth” in the earlier pleading. 10 The panel cited Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001) for the proposition that it will normally be more difficult to prevail “where [the Petitioner] encounters the ‘extraordinary circumstances’ in the beginning or middle of the limitations 18 Ninth Circuit is merely the conclusory “I know it when I see it” test, the panel was not obliged to weigh or indeed even mention any of the compelling facts in his case. Neither was the panel required to address the various decisions holding that an attorney’s abandonment of his client or failure to notify a client of court rulings may support tolling. The palliative simply displaced reasoned analysis. The difference among circuits is important to resolve and the lower courts need guidance. Review should therefore be granted particularly where, as here, there is strong evidence of actual innocence. B. The Court Should Clarify that the Limitations Period Begins to Run when a Reasonably Dili- gent Petitioner Can File a-Non-Frivolous State Habeas Petition. AEDPA provides that the one-year period of limita- tions does not begin to run “until the date on which the factual predicate of the claim or claims presented could have been discovered in the exercise of due diligence.” 28 U.S.C. §2244(d)(1)(D). In this case, both the lower courts held that petitioner “discovered” the factual predicate of his claims when Ronald’s recantation letter was received by petitioner’s wife in 1995, not when Ronald was interviewed or his letter authenticated in period rather than where he encounters them at the end of the limitations period.” App., 2a-3a. But Mr. Burton was not timely advised that his state habeas corpus petition had been denied and, once he learned, he encountered enormous obstacles at the prison. This occurred at the very end of the limitations period, not “at the beginning” or even “in the middle.” 19 1996. (See App., 2a; 1la, n. 5). When the letter was received, Mr. Burton was on notice that he had facts to investigate, and that he needed to muster competent, admissible evidence of those facts, all of which he did through the considerable and diligent efforts of the law- yer and the experts who came to his aid. Ante, pp. 6-9. But respectfully, until they did so, petitioner did not have the “factual predicate” for his claims. This Court should clarify the meaning of “factual predicate,” for a holding that equates mere “notice” with “factual predicate” is contrary to the plain meaning of the statute and defeats the larger purposes of the AEDPA statute. Rather, “fac- tual predicate” must mean sufficient credible facts to permit the filing of a habeas corpus petition under state pleading rules and the comity to which those rules are entitled under the AEDPA’s exhaustion and factual devel- opment branches. One must “begin, as always, with the language of the statute.” Duncan v. Walker, 121 S.Ct. at 2124. The phrase that Congress selected was “factual predicate,” not “notice of possible facts,” or information “reasonably cal- culated to lead to the discovery of admissible evidence,” to borrow the familiar phrase of Fev. R. Crv. P. 26(b)(1). To “predicate” ordinarily means to “found,” “base” or “establish,” indicating that the limitations period begins to run when a petitioner has uncovered the essential foundation of the legal claim. Moreover, the statutory phrase must be read in light of the overall statute and its purposes. In Williams v. 11 See Wesster’s THIRD New Int’t Dicrionary, UNABRIDGED, at 1786 (1993); AmericAN Heritace DicTIONARY OF THE ENGLISH LANGuAGE, at 1426 (3d ed. 1996). 20 Taylor, 529 U.S. 420, 434 (2000), the Court interpreted one part of the AEDPA, §2254(e)(2), “to avoid[ } putting it in needless tension with §2254(d).” Likewise, in Duncan, the Court drew support for its construction of §2244(d)(2) from the overall purposes of AEDPA; the interpretation of the statute was “consistent with ‘AEDPA’s purpose to further the principles of comity, finality, and federal- ism.’ ” Duncan, supra, 121 S.Ct. at 2127. Construing “fac- tual predicate” simply as “notice” would create needless tension with another part of the statute, section 2254(e)(2), and_would detract from the overall purposes of AEDPA. Here’s the problem: In an ordinary civil case in which permissive, “notice pleading” is the norm, a plaintiff may file a complaint with a good faith but bare-bones allega- tion of facts not within the plaintiff's own personal knowledge, and the plaintiff can depend on the ability to depose witnesses and establish the essential facts during the civil discovery process.!2 But in a habeas corpus case, many jurisdictions — including California - expect the petitioner to have affidavits and substantial evidence in hand before filing. A petitioner must gather that evidence before filing in the state court. He cannot use a later federal petition as a means to conduct discovery, because the AEDPA generally forbids an evidentiary hearing in federal court “{i]f the applicant has failed to develop the factual basis of a claim in State court proceedings ... .” 28 12 Put another way, every lawyer knows that in a notice- pleading setting, one can “beat the clock of limitations” by filing the barest of allegations, and fleshing them out later, particularly in light of the “relation back” proviso of Fen. R. Civ. P. 15(c). 21 U.S.C. §2254(e)(2).!3 Thus, if the habeas corpus petitioner is in a jurisdiction that requires more than mere notice in a habeas corpus petition, equating AEDPA’s “factual predicate” with “mere notice” will force petitioners into state court before they-have adequately developed their claims or will lead to the filing of premature, “protective” federal petitions. Both of these outcomes are counter to the underlying purposes of the AEDPA. The lower courts have not satisfactorily resolved this problem. In Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998), the Fifth Circuit found that the “factual predicate” date was when the petitioner knew certain underlying facts, not when he could prove them, though it must be said that the facts in Flanagan were within the petitioner's own personal knowledge. In Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001), the court held that the factual 13 California, Mr. Burton’s state of conviction, is typical. In People v. Duvall, 9 Cal. 4th at 474, the California Supreme Court specified that collateral relief petitions must: “(i) state fully and with particularity the facts on which relief is sought, as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. . . . Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.” (internal citations omitted). See also, People v. Martinez, 36 Cal.3d at 821. Washington has similar requirements. See Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999) (prior failure to present affidavits in state court that are required by Washington law bars federal petition under the AEDPA’s factual development provision). 22 predicate date was when the petitioner could have alleged the basis of his claim in objective good faith. In this case, the panel below put an unacceptable gloss on Hasan, ruling that the “factual predicate” date was when Ronald’s letter was received and not when Mr. Burton's lawyer established that the letter in fact was penned by Ronald. (App. 2a). But Mr. Burton needed to determine that Ronald Washington wrote the recantation letter before he could bring a good-faith petition in the state courts of California; the facts within the letter were not within Mr. Burton’s own personal knowledge, and so he could not credibly - or even in good faith — assert them by himself. Had Mr. Burton gone into state court with an unauthenticated letter, his state habeas petition would have been summarily dismissed. And any later attempt to develop the facts in federal court likely would have been met with the argument that he had failed to do so in state court. — Review should be granted so that the Court may give “factual predicate” its proper meaning. The statute says “factual predicate,” and not “notice of some facts.” The “factual predicate” date is when a reasonably diligent prisoner has sufficient credible evidence to file a state habeas petition that will avoid summary dismissal. This construction harmonizes §2244(d)(1)(D) with a prisoner’s equally-important AEDPA obligation under §2254(e) “to develop the factual basis of his claim in State court” before seeking federal relief. It avoids the need for pre- mature “protective” federal petitions and by giving the state courts a fair first opportunity to develop the facts and resolve the constitutional claims, promotes comity, finality and federalism. 23 C. The Court Should Grant Review or Summarily Reverse Because the Court of Appeals’ Sum- mary Disposition Conflicts with Schlup o. Delo. The district court completely ignored Schlup v. Delo as a possible basis for relief from petitioner’s “default” under the AEDPA, but a motions panel of the court of appeals granted a Certificate of Appealability in order to afford a full consideration of the implications of Schlup in this case (App., 13a-14a).14 Yet the panel to which the case was assigned for decision rejected Mr. Burton’s showing of actual innocence in a single sentence: “Ronald Wash- ington’s letter, alleging prosecutorial misconduct during Burton’s trial, is not sufficient proof of Burton’s inno- cence, given Derek Washington’s similar testimony, incul- pating Burton during trial.” (App., 2a). There are only two possible explanations for this holding, and each conflicts with Schlup and decisions applying Schlup. 14 The courts below should have considered whether Mr. Burton’s alleged default could be excused under Schlup. His petition set forth a claim of constitutional error coupled with actual innocence; he did not make merely a “freestanding” claim of innocence. His new evidence showed that a key prosecution witness, Ronald Washington, lied, and that he did so at the instigation of the prosecutor. This allegation, if proved, would entitle Mr. Burton to relief. See United States v. Agurs, 427 U.S. 97, 103 (1976), discussing Mooney v. Holohan, 294 U.S. 103 (1935) (due process violation to introduce material evidence that prosecutor knew or should have known was perjured); Kyles v. Whitley, 514 U.S. 419 (1995) (granting petition because failure to disclose exculpatory evidence undermined confidence in the outcome of the trial). 24 _ 1. The Court of Appeals Erred in Not Remand- ing for a Credibility Determination. “To be credible,” a claim of actual innocence must be based upon “new reliable evidence . . . that was not presented at trial.” Schlup, 513 U.S. at 324. One possible explanation for the Ninth Circuit's summary ruling is that the panel determined that Ronald’s letter simply was not credible or reliable. It is difficult to see how the panel could have reached such a conclusion. The recantation was consistent with the testimony of two prosecution eyewitnesses (Leon Moore and Hal Spring) as well as the testimony of defense eyewitness Quinola Arnold. More to the point, however, summarily rejecting the recantation on credibility grounds is not appropriate under Schlup, and is inconsistent with the approach taken by this Court and other circuits where the petitioner presents new evi- dence of innocence that goes to the very heart of the State’s case. The court of appeals should have remanded for a hearing. In Schlup itself, this Court noted that “It]he fact-intensive nature of the inquiry, together with the District Court's ability to take testimony from a few key witnesses if it deems that course advisable, convinces us that the most expeditious procedure is to order that the decision of the Court of Appeals be vacated and that the case be remanded to the Court of Appeals with instructions to remand to the Dis- trict Court for further proceedings consistent with this opinion.” (Schlup, 513 U.S. at 332). Much the same is Bousley v. United States, 523 U.S. 614, 623-24 (1998), where this Court remanded a §2255 motion 25 for further proceedings under Schlup because the district court failed to address the movant’s actual innocence. Several circuits, applying Schlup, have emphasized the need for assessment in the first instance by the district court. See, e.g., United States ex rel. Bell v. Pierson, 267 F.3d 544, 552 (7th Cir. 2001) (“Schlup requires the district court to consider the credibility of the petitioner’s new evi- dence”); Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000) (remand for district court determination of the reliability of the new evidence on innocence); O’Dell v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en banc), aff'd on other grounds, 521 U.S. 151 (1997) (“[a]scertaining the cred- ibility of [Schlup] evidence is ‘quintessentially’ a task for the factfinder”). It is the office of the district court to determine the credibility of the new evidence of innocence, and the probable effect of that evidence, had the jury heard it. Once the district court has done so, there are times when an appellate court might revisit the lower court's “proba- bility” determination, if it concludes that the district - court was in no better position than the appellate court to assess the “likelihood that a reasonable juror would con- vict based on the sum of all the evidence.” Pierson, 267 F.3d at 552 (quoting O'Dell, 95 F.3d at 1250). There might be instances in which the “new” evidence is so obviously unavailing under Schlup that an evidentiary hearing can be avoided,15 but cases of that kind are poles apart from 15 See, e.g., McCoy v. Norris, 125 F.3d 1186, 1190 (8th Cir. 1997) (evidence was cumulative, not new); Glass v. Vaughn, 65 F.3d 13, 17 (3d Cir. 1995) (new evidence of lack of memory of the murder was contradicted by petitioner's even at the scene”). alibi that he was not 26 one in which the State’s key eyewitness confesses to State-induced perjury at the trial. Neither the state court nor the district court held an evidentiary hearing; no judge has made a proper determination of the credibility of Ronald Washington’s recantation. The court of appeals’ summary affirmance cunflicts with Schlup and the rulings in other circuits. 2. Alternatively, the Court of Appeals Inap- propriately Applied the Jackson v. Virginia Standard in Rejecting the New Evidence. In Schlup, this Court ruled that a procedural default will be excused if a constitutional violation ” ‘probably’ resulted in the conviction of one who is actually inno- cent.” Schlup, 513 U.S. at 322 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). The other possible explanation for the court of appeals’ ruling in this case is that Ronald Washington’s recantation was credible and reliable, but that the new evidence was not sufficient to allow Mr. Burton to pass through the Schlup “gateway.” If that is the meaning of the court’s ruling, however, the panel applied the wrong standard and its holding conflicts with Schlup. Once a habeas corpus petitioner has come forward with reliable new evidence, a court must evaluate the claim of innocence in light of all of the evidence. Schlup, 513 U.S. at 527-28. This requires a probabilistic deter- mination. A habeas court must ask whether the new evidence “more likely than not” would have undermined the State’s case, which includes assessing how the new evidence may “call into question the credibility of the witnesses presented at trial.” (Id., at 529-30). This Court 27 took pains to distinguish the Schlup/Carrier standard for actual innocence from the much higher “sufficiency of the evidence” test described in Jackson v. Virginia, 443 U.S. 307 (1979). The Jackson standard assumes that the State’s witnesses are credible and merely “looks to whether there is sufficient evidence which, if credited, could support the conviction.” Schlup, 513 U.S. at 530. In rejecting Ronald Washington’s new and (finally) truthful account, the court of appeals merely said that the evidence was insufficient “given Derek Washington’s similar testimony, inculpating Burton during trial.” (App., 2a). The panel appeared to employ, sub silentio, Jackson's “sufficiency of the evidence” test. The court assumed that Derek’s version was credible, as one does under Jackson, and ruled that his testimony was sufficient to uphold the verdict. But Schlup requires something more. Under Schlup, the court below was obliged to examine Ronald Washington’s truthful recantation in light of all of the evidence and, most critically, assess how Ronald’s recan- tation would have influenced the jury’s consideration of the testimony of his brother Derek. This it manifestly failed to do. Under the proper standard, Mr. Burton has made a strong showing of actual innocence. There were three - and only three - young men in the mouth of the alley when Fred Wright was shot. By finally coming clean and affirming that petitioner Burton was not one of the three, Ronald implicated his brother, Derek. If Mr. Burton was up the alley, then the three at the mouth of the alley must have been Anthony Sneed, Ronald Washington and Derek Washington, and two of the three were shooters. Truthful testimony by Ronald Washington would surely have 28 undermined the jury’s consideration of Derek’s wholly self-serving testimony. Indeed, the jury would have had all the more reason to believe that Derek and not peti- tioner Burton was one of these three because it was Derek ~ not Mr. Burton - who had fought with the decedent at a party earlier in the evening. Ronald’s confessions go to the core of the reliability of the conviction. Looking at all of the evidence, Ronald’s confessions are entitely consistent with the testimony of two prosecution eyewitnesses, Hal Spring and Leon Moore, and the defense eyewitness Quinola Arnold. See ante, pp. 4-5. Further, as explained by the Fifth Circuit in Wilkerson v. Cain, 233 F.3d at 892, remanding for further proceedings under Schlup, restricting evidence about rewards offered to a crucial prosecution witness, who testified at trial under a grant of immunity, is constitu- tional error. The decision below ignores these facts completely, and elevates Derek’s testimony to Jackson-like preemi- nence. One simply cannot say that if the jury had heard the truth from Ronald - including the truth of the State’s offer of immunity if but only if Ronald “put you [Mr. Burton] at the seen” — Derek’s similarly immunized testi- mony would have been seen in the light the court of appeals now suggests, particularly inasmuch as Ronald has implicated Derek. Respectfully, Schlup does not authorize appellate courts to proceed in this fashion. The petition should be granted for the Court’s full review or, alternatively, the ruling should be summarily reversed 29 and the case remanded for the full inquiry that Schlup requires. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, Georce A. CUMMING, Jr. Counsel of Record Kirstin E. WoLF Dawn CEIZLER BROBECK, PHLEGER & Harrison LLP CHARLES D. WEISSELBERG ELIZABETH SEMEL CENTER FOR CLINICAL EDUCATION* Attorneys for Petitioner San Francisco, California December 2001 * Elaine Collins, a law student at the University of Cali- fornia School of Law (Boalt Hall), assisted in the prepara- tion of this petition. la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed August 15, 2001] y) ANTHONY BURTON, ) N® 9999000 Petitioner-Appellant, ) DC# 98-3915-ABC ) Central California ) J.W. FAIRMAN, Warden, ) et al., Vv. ) Respondents-Appellees. ) MEMORANDUM* Appeal from the United States District Court for the Central District of California Audrey B. Collins, District Judge, Presiding Argued and submitted July 12, 2001 Pasadena, California Before: RYMER and RAWLINSON, Circuit Judges, and RESTANI, CIT Judge.** Anthony Burton (“Burton”), appeals the district court’s order denying his 28 U.S.C. § 2254 petition for * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. ** The Honorable Jane Restani, Judge for Court of International Trade, sitting by designation. 2a writ of habeas corpus as untimely. Because Burton’s peti- tion was filed after the effective date of the Anti-Terror- ism and Effective Death Penalty Act (“AEDPA”), the provisions of that Act apply to his case. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). AEDPA imposes a one-year statute of limitations on habeas corpus petitions filed by state prisoners in federal court. See 28 U.S.C. § 2244(d)(1). State prisoners, like Burton, whose convictions became final prior to AEDPA’s enact- ment, have a one-year grace period in which to file their petitions in federal court. See Patterson at 1245. We review the district court’s dismissal of Burton’s petition de novo. See id. Pursuant to § 2244(d) of AEDPA, Burton’s petition was untimely. However, Burton claims that he is actually innocent and that a showing of actual innocence is an exception to the limitations period. Assuming, without deciding, that an actual innocence exception exists, Bur- ton has not made the requisite showing. See Carrig~ Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (en banc). Ronald Washington’s letter, alleging prosecutorial misconduct during Burton’s trial, is not sufficient proof of Burton’s innocence, given Derek Washington’s similar testimony, inculpating Burton during trial. Burton’s contention that the limitations period did not begin to run until Ronald’s letter was authenticated by the handwriting expert also fails. Burton was aware of the factual predicate for his actual innocence claim when Ronald’s letter was received. See Hasan v. Galaza, 254 F.3d 1150, 2001 WL 699339, at *4, n.3 (9th Cir. 2001) (holding “time begins when the prisoner knows. the important 3a facts, not when the prisoner recognizes their legal signifi- cance.”). Burton’s petition was therefore, untimely. Burton’s equitable tolling arguments also fail. See Calderon v. United States District Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc) (setting forth AEDPA stan- dard of extraordinary circumstances beyond prisoner’s control that made it impossible to file petition on time); Allen v. Lewis, 255 F.3d 798, 2001 WL 717021 *1 (9th Cir. 2001) (“It will normally be much more difficult for a prisoner to demonstrate [that the ‘extraordinary circum- stances’ were the but-for and proximate cause of untime- liness] where he encounters the ‘extraordinary circumstances’ in the beginning or middle of the limita- tions period than where he encounters them at the end of the limitations period.”) AFFIRMED. 4a APPENDIX B UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION [Filed November 2, 1998] CV 98-3915-ABC (SH) ORDER ADOPTING FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ANTHONY BURTON, Petitioner, v. J.W. FAIRMAN, Warden, Respondent. a ee ee ee Pursuant to 28 U.S.C. Section 636(b)(1)(C), the Court has reviewed the Petition, all of the records and files herein and the attached Final Report And Recommenda- tion of the United States magistrate Judge, and has made a de novo determination of the Final Report and Recom- mendation. The Court concurs with and adopts the con- clusions of the Magistrate Judge. IT IS ORDERED that the Petition filed herein is ‘dis- missed with prejudice. IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge’s Final Report and Recommendation and the Judgment herein by the United States Mail on petitioner and counsel for respondent. LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: October 29, 1998 /s/ AUDREY B. COLLINS UNITED STATES DISTRICT JUDGE 5a APPENDIX C UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION [Filed October 29, 1998] ANTHONY BURTON, Petitioner, ) CV 98-3915-ABC (SH) v. ].W. FAIRMAN, Warden, Respondent. ee eee eee Se FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This Final Report and Recommendation is submitted to United States District Judge Audrey B. Collins pur- suant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. I. PROCEDURAL BACKGROUND On January 8, 1982, petitioner was convicted of mur- der, assault by means of force likely to produce great bodily injury, and shooting at an inhabited dwelling. (Petition, p. 3.) Petitioner’s conviction was affirmed by the Court of Appeal on August 25, 1984. (Pet., p. 3.) Petitioner’s Petition for Review in the California Supreme Court was denied on October 31, 1984. (Pet., p. 4.) 6a More than twelve years later, on March 21, 1997, petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. The Petition was denied on January 14, 1998. (Pet., p. 5, Ex. 4-A.) On May 19, 1998, petitioner filed the instant Petition for Writ of Habeas Corpus (the “Petition”) in this Court. Respondent filed an Answer on June 17, 1998, followed by a Return on July 16, 1998. On September 1, 1998, petitioner filed a Traverse. The matter was taken under submission. On September 11, 1998, the Magistrate Judge issued a Report and Recommendation in this matter, recommend- ing that the Petition be dismissed with prejudice. See Report and Recommendation filed September 11, 1998. Petitioner filed Objections to the Report and Recommen- dation on September 30, 1998, and respondent filed a Reply to petitioner’s Objections on October 27, 1998. This Final Report and Recommendation now issues. II. DISCUSSION In its Return, respondent asserts that the instant Peti- tion must be dismissed because it was not filed within the statutory deadline. The Magistrate Judge agrees with the respondent’s analysis, as shown below. 28 U.S.C. § 2244, provides in relevant part: (d)(1) 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 - 7a (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 viola- tion of the Constitution or laws of the United States is removed, if the applicant was pre- vented 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 recog- nized by the Supreme Court and made retroac- tively 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 dili- gence. (2) The time during which a properly filed applica- tion 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. (emphasis added). Thus, Congress provided a one-year limit for filing a habeas corpus petition in order to strengthen the policy favoring finality and comity. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997). Petitioner’s State court judgment became final on October 31, 1984, when the California Supreme Court declined to review petitioner’s convictions. (Ret., p. 7.) However, as held in Beeler, the one-year period of limita- tions did not begin to run against petitioner until April 24, 1996, the date of the enactment of the Antiterrorism 8a and Effective Death Penalty Act of 1996 (“AEDPA”). Bee- ler, 128 F.3d at 1287. Thus, absent any tolling, the statute of limitations would have expired one year later on April 24, 1997. As noted above, petitioner did not file the Petition in this court until May 19, 1998. Respondent acknowledges that the period of limita- tions was tolled for some time under 28 U.S.C. § 2244(d)(2). Petitioner filed his state habeas petition 34 days prior to the original deadline under the AEDPA. Thus, the period of limitations was tolled from March 21, 1997 until January 14, 1998, when the state habeas petition was denied. As a result, petitioner had 34 days after January 14, 1998, or until February 17, 1998, to file a petition in this Court. However, the instant Petition was filed after that date. Beeler, supra, held that the one year period in which a state prisoner has to file a Petition for Writ of Habeas Corpus in the District Court constitutes a statute of limitations which may, on certain narrow circumstances, be tolled. Specifically, Beeler stated that “equitable tolling will not be available in most cases, as extensions of time will only be granted if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a Petition on time. [citation omit- ted] We have no doubt that district judges will take seriously Congress’ desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted.” Beeler, 128 F.3d at 1288-89. Petitioner concedes that the instant Petition was filed late. Petitioner’s primary explanation for his delay in filing the Petition is that there was “no law library established in his facility, in which he is housed; and he had no adequate access to legal books, or material to assist him in filing the 9a writ of Habeas Corpus”.! (Obj., p. 4; see also Trav., pp. 7, 12; Pet., see attach. entitled “Explanation (sic) for Delay”, p. 2.) However, petitioner fails to provide this court with suffi- cient specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims. “It is not enough to say that the ... facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate.” Miller v. Marr, 141 F.3d 976 (10th Cir. 1998). In support of his argument for a period of equitable tolling, petitioner contends that “he submitted several requests for legal material from the law library located in another part of the institution and physically inaccessible to him”. (Trav., p. 8.) However, petitioner does not pro- vide this court with any relevant documentary evidence supporting this contention, nor does petitioner provide this court with any specific dates that he allegedly requested law library access or legal materials. Respon- dent submits that petitioner completed only one “Inmate Request for Interview”, requesting certain publications from the law library. (Reply, p. 14, Decl. of Davis, Jr., Ex. B., p. 25.) The court notes that this inmate request was completed on March 22, 1998, after petitioner’s extended AEDPA deadline for filing a habeas petition has passed. 1 Respondent concedes that the Facility C law library was not opened for inmate use until June 1998. However, a paging service was available to all inmates requesting library resources and photocopying from February 1998 until the library opened. (Reply, p. 13, Decl. of Davis, Jr., attaching memoranda from Corcoran Litigation Office Assistant Tamara Colwell.) 10a Moreover, this court notes that the claims petitioner is seeking to raise in the instant Petition are the same claims petitioner raised before the California Supreme Court, thereby undercutting his argument that lack of access to the prison law library caused his delay. (Pet., Ex. 4-A.) Furthermore, the fact that petitioner submitted an inmate appeal to prison offices on July 19, 1998 regarding the alleged lack of law library access does not persuade this Court that petitioner should be granted equitable tolling with respect to the instant Petition filed before that date, namely on May 19, 1998. Petitioner also argues that the statute of limitations should be equitably tolled on the ground that he did not become personally aware until March 21, 1998 that the California Supreme Court had denied his habeas petition on January 14, 1998.2 However, as respondent correctly notes, even if petitioner was granted equitable tolling until March 21, 1998, the instant Petition would still have been due 34 days later, on April 24, 1998.° 2 With respect to the status of his state habeas petition, petitioner states that he “did what most layman (sic) persons would do when being represented by an attorney ... wait to be contacted by the attorney concerning the court's decision”. (Obj., p. 13.) Such a statement underscores petitioner’s lack of diligence in this matter. 3 Nor does petitioner assert that he made any inquiry to the California Supreme Court regarding the status of his state habeas petition, prior to receiving notice from his wife that such court had denied his petition. In fact, only after receiving notice from his wife did petitioner contact his attorney to confirm that the California Supreme Court had denied his petition. (Pet., see attachment entitled “Explaination (sic) for Delay”, p. 2.) lla In sum, the Magistrate Judge finds that petitioner’s allegations do not amount to the “extraordinary circum- stances” envisioned by the Beeler court. See also Calderon v. United States District Court (Kelly), 127 F.3d 782 (9th Cir. 1997); United States v. Van Poyck, 980 F.Supp. 1108 (C.D.Cal. 1997).4 Nor does petitioner argue that he falls within the statutory tolling provisions of § 2244(d)(1)(C), as he does not assert that he is relying on a constitutional right newly recognized by the United States Supreme Court. Lastly, petitioner argues that “it would be a funda- mental miscarriage of justice if this court fails to review petitioner’s claims based upon this newly discovered evi- dence that came to light fourteen years after petitioner’s conviction. Now for the first time, petitioner is finally able to prove that he is innocent of the crimes for which he is imprisoned”. (Trav., p. 16.) Petitioner contradicts himself, in that he has conceded that this newly discov- ered evidence came to light in 19955, and was brought to 4 Nor does petitioner fall with[in] 28 U.S.C. § 2244(d)(B), in that no “state action” prevented him from filing the instant Petition on a timely basis. 5 Petitioner argues that the newly discovered evidence which came to light in 1995 was a letter from one of the co- defendants who admitted that he knew petitioner was not with him and the others at the end of the alley at the time of the shooting. The letter was not addressed to anyone, and was signed by “Ronald W”. Petitioner’s wife apparently received this letter from “Ronald W”. (Pet., Ex. 4-A, p. 19.) According to petitioner, this letter had to be “authenticated in order to insure its reliability”, and the authentication of this letter occurred on November 19, 1996. (Trav., p. 6.) Petitioner’s discussion on the 12a the attention of the California Supreme Court in his state habeas petition. Even if this court were to apply the statutory tolling provisions of 28 U.S.C. § 2244(d)(1)(D), the Petition is still time-barred. Ill. RECOMMENDATION For all of the foregoing reasons, IT IS RECOM- MENDED that the court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action with prejudice. DATED: Oct. 29, 1998 /s/ STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE authentication of the letter does not persuade this court that the statutory tolling provisions of 28 U.S.C. § 2244(d)(1)(D) apply in this case. Rather, the year 1995, when the letter was discovered, is “the date on which the factual predicate of the claim” presented was discovered. 13a APPENDIX D UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed January 25, 1999] ANTHONY BURTON, Petitioner-Appellant, No. 99-55000 DC# 98-3915-ABC Central California ORDER V. J.W. FAIRMAN, Warden, et al., i Respondents-Appellees. ) ) ) Before: KLEINFELD and HAWKINS, Circuit Judges: The request for a certificate of appealability is granted with respect to the following issues: 1. Whether the combined showing of actual innocence and constitu- tional error described in Schlup v. Delo, 513 U.S. 298 (1995), is sufficient to overcome the AEDPA’s one-year time bar. 2. If so, whether remand to the district court is warranted to establish whether petitioner can make a showing of actual innocence sufficient to open the gate- way to his claim that an eyewitness to the crime was induced by the prosecutor to give false testimony. See 28 U.S.C. § 2253(c)(3). Appellant is granted leave to proceed in forma pau- peris. The court, on its own motion, appoints counsel to represent petitioner in this appeal. Counsel will be appointed by separate order. l4a The Clerk shall serve a copy of this order by facsimile transmission on Maria E. Stratton, Federal public Defender, 312 N. Spring Street, Room 1503, Los Angeles, California 90012 (FAX: (213) 894-0081), who will locate appointed counsel. The district court shall provide this court with the name and address of appointed counsel within 14 days of locating counsel. Appellant’s opening brief and excerpts of record are due March 26, 1999; appellees’ brief is due April 26, 1999; the reply brief, if any, is due within 14 days after service of appellees’ brief. 15a APPENDIX E UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed January 9, 2001] ANTHONY BURTON, Petitioner-Appellant, No. 99-55000 DC# 98-3915-ABC Central California ORDER We J.W. FAIRMAN, Warden, et al., Respondents-Appellees. i i eo \ The Certificate of appealability granted by this court on January 25, 1999 is expanded to include the following issues: A. Did petitioner file his § 2254 habeas petition in district court within the limitations period under 28 U.S.C. § 2244(d)(1)? B. If not, does equitable or statutory tolling of the limitations period make the petition timely? Oral argument scheduled for February 9, 2001 is vacated. Petitioner shall file a supplemental brief addressing these issues by no later than February 12, 2001. Respondents shall file a response to the supplemen- tal brief by no later than march 12, 2001. Petitioner shall file a reply to the supplemental brief by no later than April 12, 2001. Each brief shall not exceed 15 pages in l6a length. After briefing is complete, the Clerk shall place this case before the next available panel. FOR THE COURT CATHY A. CATTERSON, CLERK OF COURT By /s/ Gwen Baptista Deputy Clerk 17a APPENDIX F UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed October 2, 2001] No. 99-55000 DC# CV-98-03915-ABC-SH Central District of California ORDER ANTHONY BURTON, Petitioner-Appellant, V. J.W. FAIRMAN, Warden, et al., mee ee ee ee ee ee ee ee Respondents-Appellees. Before: RYMER and RAWLINSON, Circuit Judges, and RESTANL,* CIT Judge. The panel has voted unanimously to deny the peti- tion for rehearing en banc. Judges Rymer and Rawlinson voted, and Judge Restani recommended, to reject the suggestion for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no active judge of the court has requested a vote on the petition for rehearing en banc. Fep. R. App. P. 35(f). Appellant’s petition for rehearing en banc, filed August 29, 2001, is DENIED. * The Honorable Jane Restani, Judge for Court of International Trade, sitting by designation. 18a APPENDIX G 28 U.S.C. § 2244, as amended by the AEDPA § 2244. Finality of determination (a) No circuit or district judge shall be required to enter- tain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255. (b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless — (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 19a (3)(A) Before a second or successive application per- mitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. (B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three- judge panel of the court of appeals. (C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. (D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. (E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. (4) A district court shall dismiss any claim pre- sented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section. (c) Ina habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of cer- tiorari at the instance of the prisoner of the decision of 20a such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein, unless the applicant for the writ of habeas corpus shall plead and the court shall find the existence of a material and controlling fact which did not appear in the record of the proceeding in the Supreme Court and the court shall further find that the applicant for the writ of habeas corpus could not have caused such fact to appear in such record by the exercise of reasonable dili- gence. (d)(1) 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 col- lateral review; or 2la (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed applica- tion for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pend- ing shall not be counted toward any period of limitation under this subsection. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1027%3A1. Public record. Not legal advice.