Opinion
Case No. 94-cv-02761-BLF
11-30-2018
MIGUEL ANGEL BACIGALUPO, Petitioner, v. KELLY SANTORO, Acting Warden, North Kern State Prison, Respondent.
ORDER RE: RESPONDENT'S MOTION TO AMEND JUDGMENT
I. INTRODUCTION
On April 8, 2016, Petitioner filed an Amended Petition for Writ of Habeas Corpus in this Court. (See Dkt. No. 228, "Fed. Pet."). On September 25, 2018, the Court granted Petitioner's writ based on the Brady errors described in Claims C and D, as well as the cumulative error described in Claim L.
Respondent subsequently filed a motion to alter the Court's judgment pursuant to Federal Rule of Civil Procedure 59(e). See Dkt. No. 267 ("Resp. Br."). Petitioner filed a response to the motion, see Dkt. No. 270 ("Pet. Br.") and Respondent filed no reply.
For the reasons discussed below, the Court PARTIALLY GRANTS Respondent's motion to alter the judgment.
II. STANDARD OF REVIEW
A motion for reconsideration under Rule 59(e) " 'should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the law.' " McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999) (en banc). A district court has "considerable discretion" in deciding a Rule 59(e) motion. Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir.2003). Accordingly, reconsideration pursuant to Rule 59(e) is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
Evidence is not newly discovered for purposes of a Rule 59(e) motion if it was available prior to the district court's ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir.2011) (affirming district court's denial of habeas petitioner's motion for reconsideration where petitioner's evidence of exhaustion was not "newly discovered" because petitioner was aware of such evidence almost one year prior to district court's denial of petition). Moreover, a district court does not commit clear error warranting reconsideration when the question before it is a debatable one. See McDowell, 197 F.3d at 1256 (district court did not abuse its discretion in denying reconsideration where question of whether it could enter protective order in habeas action limiting Attorney General's use of documents from trial counsel's file was debatable).
III. ANALYSIS
Respondent does not explicitly identify which prong entitles her to relief pursuant to Rule 59(e), but appears to argue the Court's issuance of a conditional writ directing the state to "release Petitioner from custody unless the state commences proceedings to retry him within 120 days of the date of entry of judgment," Dkt. No. 266, was clearly erroneous. Specifically, Respondent asks this Court to allow the state court to impose a second-degree murder conviction in lieu of a retrial. Resp. Br. at 4.
In habeas cases, district courts have broad discretion in conditioning a judgment upon granting relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987). District courts are authorized to dispose of habeas corpus matters " 'as law and justice require,' " including by delaying release of a successful habeas petitioner in order to provide the state an opportunity to correct the constitutional violation, or violations, found by the court. Id. A district court's chosen remedy must "neutralize the taint" of the constitutional violations and simultaneously not grant a windfall to the petitioner. Lafler v. Cooper, 566 U.S. 156, 170 (2012). A district court has the power to release a successful petitioner but has no power to revise the state court's judgment. Douglas v. Jacquez, 625 F.3d 501, 504 (9th Cir. 2010).
In support of her contention, Respondent cites various Ninth Circuit cases in which it approved or ordered a district court's issuance of a conditional writ providing an option for the state to address a constitutional error without necessarily providing a retrial. Respondent first cites Douglas, 626 F.3d at 503, a case in which the Ninth Circuit directed a district court to grant a conditional writ allowing the state court to resentence a petitioner in lieu of a retrial. Douglas involved a claim of insufficient evidence to convict the petitioner of arson of an inhabited structure. The district court granted the claim, but, after determining that the evidence was sufficient to sustain a conviction for the lesser-degree crime of "arson of structure," issued a judgment directing the state court to amend its judgment to reflect as much. Id. On review, the panel agreed with the district court's assessment of the evidence but nevertheless reversed the district court's judgment, holding that the district court did not have jurisdiction to direct the state court to enter a judgment for arson of a structure. However, the panel noted that California's Penal Code § 1181(6) provides that if a defendant is "shown to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, . . . the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial," Cal. Pen. Code § 1181(6), and while the district court did not have the power to direct the state to resentence the petitioner to "arson of structure," it had the power to issue a judgment which would allow the state to do so in lieu of releasing the petitioner or retrying him. The Ninth Circuit therefore ordered the district court to enter a conditional writ directing the state court to resentence the petitioner within a reasonable time or release him.
Here, the Court has not made any factual findings as to sufficiency of the evidence. The Court held only that Petitioner has met his burden of showing he suffered prejudice from various constitutional violations, including violations of Brady v. Maryland, 373 U.S. 83 (1963) and due process, during his trial. Douglas is therefore unhelpful in determining the proper remedy for Petitioner's case except to the extent that it identifies that a federal court " 'has the power to release' a prisoner, but . . . 'cannot revise the state court judgment.' " Douglas, 626 F.3d at 504. To the extent the Court's judgment purported to "vacate" Petitioner's conviction, the Court agrees that the judgment must be amended.
In addition, Respondent cites Lujan v. Garcia, 734 F.3d 917, 934-35 (9th Cir. 2013). In Lujan, the district court's judgment directed the state court to enter a judgment for a conviction for second-degree murder after finding the evidence other than the petitioner's statements, which were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), supported a second-degree murder conviction. The Ninth Circuit agreed that a state court may be given the chance to remedy a Miranda violation by reweighing trial evidence while excluding the petitioner's offending statements, determining whether the remaining evidence supports a lesser degree of the convicted crime, and resentencing the petitioner based on that determination. Lujan, 734 F.3d at 934-35. However, the panel held the district court abused its discretion by ordering the state court to specifically enter a judgment of second-degree murder. On remand, the panel instructed the district court to modify its judgment and issue a conditional writ, which "may include the option that the state court make an independent determination as to whether the convictions can be modified under state law." Id. at 935.
Lujan is inapposite. First, Lujan did not involve a Brady violation or, as in Petitioner's case, multiple violations of Brady and due process. The prejudice from the error in Lujan was therefore easily isolated to Petitioner's un-Mirandized statements. Here, the suppressed evidence impacted Petitioner's ability to challenge evidence that he premeditated and deliberated the killings, the prosecution's theory that the killings were motivated by Petitioner's desire to rob the jewelry store, and the overall credibility of at least two of the prosecution's key witnesses, Sergeant John Kracht of the San Jose Police Department, who testified there was no evidence to support Petitioner's statement that he was threatened by the Colombian Mafia, and Karlos Tigiboy, who was portrayed as an innocent bystander despite the prosecution team's knowledge of his connections to Jose Angarita's drug empire.
Respondent also cites Shelton v. Marshall, 806 F.3d 1011 (9th Cir. 2015). In Shelton, the Ninth Circuit reversed a district court's denial of a petition for writ of habeas corpus. The panel held that the state violated Brady when it failed to turn over evidence of a prosecution deal with a witness. The deal prevented the witness from undergoing a psychological evaluation, therefore foiling the defense's ability to call the witness's competence into question. The panel found that the Brady issue affected only the testimony of one witness and that the witness's testimony was material only as to whether the petitioner deliberated and premeditated as required by his conviction for first-degree murder. The panel also noted, however, that the evidence other than the offending witness's testimony was "extremely strong," Shelton, 796 F.3d at 1089, and upon receipt of the state's unopposed petition for rehearing, directed the district court to issue a conditional writ "ordering the State to retry [petitioner] for the murder . . . within a reasonable time or to take such other action as may be consistent with this opinion and with federal and state law. Lujan[, 734 F.3d at 934-35]." Shelton, 806 F.3d at 1011.
Shelton, while certainly sharing some similarity to Petitioner's case, is nevertheless not controlling here. The Brady violation in Shelton was confined to one witness's testimony and did not involve, as in Petitioner's case, affirmatively false statements by the prosecution team or the perpetuation of false testimony by several witnesses and a prosecution investigator. Moreover, Shelton did not consider the effect of a finding of cumulative error. Whereas the panel in Shelton was able to simply eliminate the testimony of a single witness in order to analyze the remaining evidence, the constitutional errors in Petitioner's case were substantial and pervasive, ultimately affecting the overall credibility of the prosecution's theory of the case. See Dkt. No. 265 at 43-44 ("Without these errors present, Petitioner's guilt phase trial would have been substantially different from the one which occurred, and the prosecution's claim that the "only rational explanation" for the killings was Petitioner's greed, see RT 3499, would have been severely undermined") (emphasis added).
Respondent also argues the jury necessarily found that Petitioner harbored the mental state required for second-degree murder when it found the robbery special circumstance as true. See Resp. Br. at 2-4. However, as noted, the jury's finding suggests that the jury credited the prosecution's theory that "the murder was committed in order to carry out or advance the commission of the crime [of robbery]," Resp. Br. at 2 (quoting 11 RT 3543), and this Court found, in its order partially granting relief, that the suppressed evidence would affect the credibility of the prosecution's theory of the case. Accordingly, even if the Court removed the testimony of every witness whose credibility would be undermined by the evidence adduced during Petitioner's habeas proceedings, the Court cannot discern to what extent Petitioner's inability to fully prepare a defense and the prosecution's ability to ridicule Petitioner and frame the killings as the result of Petitioner's greed affected the jury's finding that Petitioner intended to kill the Guerrero brothers. Given the pervasive nature of the constitutional errors, the Court disagrees with Respondent's contention that anything less than a retrial would be sufficient to "neutralize the taint" from the constitutional violations which plagued Petitioner's proceedings from the pretrial stages through his conviction.
In any case, Respondent has failed to show this Court's judgment ordering the state court to "release Petitioner from custody unless the state commences proceedings to retry him within 120 days of the date of entry of judgment," id., constituted clear error as required for the issuance of an order altering the Court's judgment pursuant to Rule 59(e). "In habeas cases, federal courts have broad discretion in conditioning a judgment granting relief. . . . [and] 'are authorized . . . to dispose of habeas corpus matters as law and justice require.' " See Lujan, 734 F.3d at 933. Here, Petitioner was deprived of a fair trial as a result of egregious misconduct by the prosecution team. Resentencing Petitioner on the basis of evidence introduced during his unfair trial proceedings without giving him the opportunity to challenge the evidence and have a jury make untainted factual findings would not serve law or justice. The Court recognizes, however, that the parties may enter into an agreement obviating the need for a retrial. Therefore, the Court will amend the judgment to reflect that the state court need not retry Petitioner if the parties choose to pursue other lawful action consistent with this order.
IV. CONCLUSION
Respondent's Rule 59(e) motion is PARTIALLY GRANTED.
The Court's September 25, 2018 order, Docket No. 265, is AMENDED. An amended order bearing the same effective date as Docket No. 265 will be filed concurrently with this order and will reflect the following amendment on page 44:
After a careful review of the record and the pertinent law, the Court hereby orders as follows:
(1) The petition for writ of habeas corpus is GRANTED on the basis of the Brady errors described in Claims C and D, as well as the cumulative error described in Claim L.
(2) Claims A and B are DENIED. To the extent that they allege trial errors, they are also MOOT.
(3) Respondent shall release Petitioner from custody unless the state commences proceedings to retry him within 120 days of the effective date of entry of judgment on this order or the parties choose other lawful action consistent with this order.
(4) The effective date of this order is September 25, 2018, the issue date for the Court's original order partially granting the petition for writ of habeas corpus. See Dkt. Nos. 265 & 266.
The judgment issued on September 25, 2018, Docket No. 266, is also AMENDED. A corrected judgment bearing the same effective date as Docket No. 266 will be filed concurrently with this order and will reflect the following amendment on page 1:
Pursuant to the Court's order, Docket. No. 272, and previous orders in this matter, the petition for a writ of habeas corpus is GRANTED on the basis of the Brady v. Maryland, 373 U.S. 83 (1963) errors described in Claims C and D, as well as the cumulative error described in Claim L. Claims A and B are DENIED and MOOT. Respondent shall release Petitioner from custody unless the state commences proceedings to retry him within 120 days of the effective date of entry of this judgment or the parties choose other lawful action consistent with this order. The effective date of this judgment is September 25, 2018, the issue date for the Court's original judgment. See Dkt. Nos. 265 & 266.
Respondent's request that the Court modify the judgment to allow the state to resentence Petitioner in lieu of retrying him is DENIED. This order does not reset the 120-day deadline set by the order and judgment issued on September 25, 2018.
IT IS SO ORDERED. Dated: November 30, 2018
/s/_________
BETH LABSON FREEMAN
United States District Judge
Shelton v. Marshall, 806 F.3d 1011, amends the judgment pronounced in a prior opinion, Shelton v. Marshall, 796 F.3d 1075, 1084-89 (9th Cir. 2015).