George Gage v. Kevin Chappell
2015 U.S. App. LEXIS 12482
| 9th Cir. | 2015Background
- George Gage was convicted in California of multiple sexual-offense counts based primarily on his stepdaughter Marian’s testimony; a new-trial motion was granted after the trial judge reviewed Marian’s medical/psychiatric records in camera and found the testimony unreliable, but the state appellate court reinstated the convictions and Gage was sentenced to 70 years.
- Marian’s medical records (containing statements undermining her credibility) were disclosed to the trial judge in camera; the State thereafter refused to produce them to defense or post-conviction counsel.
- Gage filed a federal habeas petition in 2005 raising other issues (not a developed Brady claim); that petition was denied. In 2013 he sought permission from the Ninth Circuit to file a second or successive § 2254 petition asserting (1) a Brady claim based on the withheld medical records and (2) ineffective assistance of trial counsel (failure to investigate/impeach and present expert evidence).
- AEDPA § 2244(b)(2) requires authorization to file a second-or-successive petition and permits new claims only if (A) they rely on a new rule of law or (B)(i) the factual predicate could not have been discovered with due diligence and (ii) the facts would establish actual innocence by clear and convincing evidence.
- The Ninth Circuit panel held Gage’s proposed claims were second-or-successive because their factual predicates existed before his first petition, Gage failed to exercise due diligence in not raising them earlier, and Schlup’s actual-innocence gateway does not override § 2244(b)(2)(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gage’s proposed Brady and ineffective-assistance claims are "second or successive" under AEDPA and thus require § 2244(b)(2) authorization | Gage: Panetti-type exception applies because claims were not properly developed before and thus petition should not be treated as successive | State: Factual predicates existed at or before trial and before the first habeas petition, so AEDPA successive rules apply | Held: Claims are successive; Panetti exception doesn’t apply because predicates were ripe before first petition (citing Buenrostro) |
| Whether Gage made the § 2244(b)(2)(B)(i) showing of due diligence to discover the Brady material | Gage: Could not obtain medical records from State; referenced Brady in first petition | State: Medical records (and the trial judge’s in camera findings) put Gage on notice well before first petition | Held: Gage failed due diligence; Brady predicate was known by 2000 (new-trial order) and not raised in 2005 petition |
| Whether Gage satisfies § 2244(b)(2)(B)(ii) — that the new facts establish actual innocence by clear and convincing evidence | Gage: With medical records and counsel errors, he can show innocence | State: Records withheld but even assuming their content, Gage didn’t meet AEDPA’s heightened standard | Held: Court did not reach merits because failure on diligence; also noted § 2244(b)(2)(B)(ii) requires clear and convincing proof, a higher standard than Schlup |
| Whether Schlup’s actual-innocence gateway can bypass AEDPA § 2244(b)(2)(B) requirements (diligence + clear-and-convincing) | Gage: Schlup should excuse procedural default and allow review despite AEDPA restrictions | State: Schlup does not override Congress’s explicit limits in § 2244(b)(2)(B) | Held: Schlup does not abrogate § 2244(b)(2)(B); Congress expressly incorporated an innocence gateway but conditioned it on diligence and clear-and-convincing proof, so Schlup cannot nullify those statutory requirements |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial nondisclosure of exculpatory evidence violates due process)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway that can excuse procedural default under pre-AEDPA standards)
- Panetti v. Quarterman, 551 U.S. 930 (2007) (claims whose factual predicate did not exist at time of first petition may not be "second or successive")
- Buenrostro v. United States, 638 F.3d 720 (9th Cir. 2011) (distinguishing Panetti and holding claims whose predicates were ripe at first petition are successive)
- Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (applicant must show diligence to avoid successive-petition bar)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (Schlup can excuse AEDPA statute-of-limitations failure but distinguishes § 2244(b)(2)(B) as a different statutory scheme)
- Felker v. Turpin, 518 U.S. 651 (1996) (Congress can lawfully limit habeas scope; § 2244(b) within congressional power)