Christian v. Thomas, No. 19-70036 (9th Cir. 2020)
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The Ninth Circuit denied applicant's application for federal habeas corpus relief from his 1997 conviction in Hawaii state court for second-degree murder where applicant seeks retroactive relief based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The district court construed the motion as an application to file a second or successive (SOS) habeas petition and referred it to the Ninth Circuit.
The panel accepted the referral and confirmed that the Rule 60(d) filing is properly construed as an application for authorization to file an SOS habeas petition. The panel held that the application does not make the required prima facie showing pursuant to 28 U.S.C. 2244(b)(2). The panel assumed without deciding that McCoy did indeed create a new rule of constitutional law and that it was previously unavailable to applicant, but found that the application was otherwise deficient. In this case, applicant failed to show that McCoy was made retroactive on collateral review by the Supreme Court and that his proposed petition would rely on McCoy's rule.
Court Description: Habeas Corpus. The panel denied Taryn Christian’s application for federal habeas corpus relief from his 1997 conviction in Hawaii state court for second-degree murder in a case in which Christian seeks retroactive relief based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018), which held that a defendant’s Sixth Amendment rights are violated if, counter to the defendant’s express objections, the defendant’s counsel concedes guilt. Christian filed in the district court a motion pursuant to Fed. R. Civ. P. 60(d) seeking relief from his first habeas judgment. The district court construed the motion as an application to file a second or successive (SOS) habeas petition and referred it to the Ninth Circuit. The panel accepted the referral and confirmed that the Rule 60(d) filing, which asserted a federal basis for relief from Christian’s state conviction, is properly construed as an application for authorization to file an SOS habeas petition. The panel held that the application does not make the prima facie showing required in 28 U.S.C. § 2244(b)(2) for authorization to file an SOS petition. The panel assumed without deciding that McCoy created a new rule of constitutional law and that it was previously unavailable to Christian, but found that the application was otherwise CHRISTIAN V. THOMAS 3 deficient. The panel held that the Supreme Court has not made McCoy retroactive on collateral review. The panel also held that because counsel does not violate a defendant’s Sixth Amendment rights under McCoy simply by arguing self-defense in the alternative, Christian does not show that his proposed petition would rely on McCoy’s rule.
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