GREGORY BROWN V. M. ATCHLEY, No. 20-16290 (9th Cir. 2023)
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Petitioner was convicted in California state court of one count of conspiracy to commit murder and one count of attempted murder on an aiding and abetting theory and sentenced to 56 years to life. His conviction and sentence were affirmed on appeal. The district court denied his first federal habeas petition on the merits and declined to grant a certificate of appealability (COA); this court also declined to grant a COA. The district court dismissed as second or successive Petitioner’s second federal habeas petition, and the Ninth Circuit court affirmed the dismissal.
In consolidated appeals, the Ninth Circuit reversed the district court’s judgments dismissing, as second or successive under 28 U.S.C. Section 2244(b), Petitioner’s third and fourth federal habeas corpus petitions, and remanded. The panel held that Petitioner’s due process, ineffective assistance of counsel, and equal protection claims did not become ripe until his application for resentencing was denied, which occurred well after the district court denied his first and dismissed his second habeas petitions. Because Petitioner could not have raised these claims in his first or second petition, his failure to do so is not an abuse of the writ. Applying Panetti v. Quarterman, 551 U.S. 930 (2007), the panel concluded that the third and fourth habeas petitions were, accordingly, not second or successive under Section 2244(b).
Court Description: Habeas Corpus. In consolidated appeals, the panel reversed the district court’s judgments dismissing, as second or successive under 28 U.S.C. § 2244(b), Gregory Brown’s third and fourth federal habeas corpus petitions, and remanded.
Brown was convicted in California state court of one count of conspiracy to commit murder and one count of attempted murder on an aiding and abetting theory, and sentenced to 56 years to life. His conviction and sentence were affirmed on appeal. The district court denied his first federal habeas petition on the merits and declined to grant a certificate of appealability (COA); this court also declined to grant a COA. The district court dismissed as second or successive Brown’s second federal habeas petition, and this court affirmed the dismissal.
After the district court dismissed Brown’s second habeas petition, the California legislature amended the law relating to accomplice liability for murder, and added section 1170.95 to the California Penal Code, which provides a procedure for a defendant convicted of felony murder or murder under a “natural and probable consequences” theory to obtain retroactive relief. Shortly thereafter, Brown filed an application for resentencing in state court pursuant to section 1170.95, which the state denied. Brown’s third federal habeas petition argued that he was entitled to resentencing under section 1170.95, and that his continued incarceration under the original sentence violated his due process rights. His fourth federal habeas petition alleged, among other things, that he was denied effective assistance of counsel in applying to the state court for resentencing pursuant to section 1170.95 and that the state court’s denial of his application violated his equal protection rights.
The panel held that Brown’s due process, ineffective assistance of counsel, and equal protection claims did not become ripe until his application for resentencing was denied, which occurred well after the district court denied his first and dismissed his second habeas petitions. Because Brown could not have raised these claims in his first or second petition, his failure to do so is not an abuse of the writ. Applying Panetti v. Quarterman, 551 U.S. 930 (2007), the panel concluded that the third and fourth habeas petitions were, accordingly, not second or successive under § 2244(b).
The panel did not reach the parties’ argument that, under Magwood v. Patterson, 561 U.S. 320 (2010), the state court’s denial of Brown’s application for resentencing under section 1170.95 constituted a new judgment for purposes of § 2254.
Concurring, Judge Ikuta wrote that the panel does the parties a disservice by declining to address their primary argument in this case. She would hold that the state court’s denial of Brown’s application for resentencing under section 1170.95 did not constitute a new judgment for purposes of § 2254.
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