Damen Rabb v. M. Eliot Spearman, 2:17-cv-09318

Background

Petitioner Damen Rabb was convicted of robbery; he filed an initial federal habeas petition that was denied and later sought to file a successive petition based on purportedly newly discovered evidence and IAC (ineffective-assistance-of-counsel) subclaims.
The successive petition relied chiefly on 2016 statements from victims (Farmer and Chappell) claiming they could not identify Rabb as the robber and other alleged new facts (e.g., issues about a surveillance video, counsel’s handling of an identification expert, and hearsay/excited-utterance evidence).
The Ninth Circuit preliminarily authorized the successive filing (prima facie), but the district court (via a Magistrate Judge R&R) independently reviewed the record under 28 U.S.C. § 2244(b) to determine whether the statutory requirements were satisfied.
The Magistrate Judge concluded many factual predicates were known (or discoverable) earlier—e.g., 2007 victim statements, trial transcript showing counsel knew of a surveillance tape, and pretrial/federal-court filings raising related claims—and that several claims were previously raised.
The R&R further found petitioner failed the diligence requirement for a successive petition and that, even if the new evidence were credited, it would not clearly and convincingly establish actual innocence when viewed with the full record.
The district court accepted the R&R and granted respondent’s motion to dismiss the successive petition with prejudice (Jan. 30, 2020).

Issues

Issue	Rabb’s Argument	Respondent’s Argument	Held
Must district court independently review a successive petition after court of appeals grants leave?	Ninth Circuit’s remand meant the district court should not reweigh or second-guess the appellate prima facie finding.	District court must conduct a thorough, de novo review under § 2244(b) and not defer to the circuit’s preliminary determination.	Held for respondent: district court must independently evaluate whether § 2244(b) requirements are met.
Did Rabb act with due diligence in discovering the factual predicates for his claims?	Many predicates (victim statements, counsel’s conduct re: video and expert) were not reasonably discoverable until habeas counsel’s later investigation.	The record (trial transcripts, prior state habeas filings, counsel’s earlier knowledge) put Rabb on notice earlier; pro se status does not excuse delay.	Held for respondent: Rabb lacked required diligence; many predicates were known or discoverable earlier.
Do the newly presented facts (victim recantations, surveillance video, expert testimony) clearly and convincingly demonstrate actual innocence?	Victims’ 2007/2016 statements and other new evidence would have undermined identifications and admission of statements as excited utterances, showing innocence.	Even credited, the new evidence would not overcome the strong inculpatory evidence (eyewitness ID credited by jury, codefendant IDs, girlfriend’s statement, corroborating descriptions); reasonable jurors could still convict.	Held for respondent: new evidence insufficient under § 2244(b)(2)(B)(ii) to establish actual innocence.
Was an evidentiary hearing required before dismissing the successive petition?	Rabb argued the district court should have held a hearing to assess credibility of new statements.	No hearing required where, even assuming new statements true, they would not clearly and convincingly establish innocence given the whole record.	Held for respondent: no hearing necessary; dismissal appropriate on the record.

Key Cases Cited

Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (prima facie showing permits fuller district-court exploration)
United States v. Villa–Gonzalez, 208 F.3d 1160 (9th Cir. 2000) (district court must review allegations/evidence under § 2244(b))
Case v. Hatch, 731 F.3d 1015 (10th Cir. 2013) (district court should not defer to circuit court’s preliminary determination)
Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015) (equitable tolling where prejudice not discoverable until later)
Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001) (awareness of prejudice can affect discovery timing—context of initial petitions)
Rishor v. Ferguson, 822 F.3d 482 (9th Cir. 2016) (claims raised after denial must meet § 2244(b) to proceed)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (post-judgment motions adding new claims may be successive and governed by § 2244(b))
Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (actual-innocence analyses consider all evidence, old and new)
King v. Trujillo, 638 F.3d 726 (9th Cir. 2011) (new evidence relevance to actual-innocence inquiry)
Morales v. Ornoski, 439 F.3d 529 (9th Cir. 2006) (stand-alone actual-innocence standard discussed)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance)
Babbitt v. Calderon, 151 F.3d 1170 (9th Cir. 1998) (counsel’s investigation decisions measured by reasonableness)
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (prosecutorial-misconduct claims require proof of knowledge for some remedies)
United States v. Nacoechea, 986 F.2d 1273 (9th Cir. 1993) (permitting inference that untruthful witnesses would likely be more consistent)