652 F.3d 1071
9th Cir.2011Background
- West seeks authorization to file a second or successive habeas petition under 28 U.S.C. § 2244(b)(3); application denied.
- He was convicted in 1988 of first-degree felony murder, second-degree burglary, and theft, and sentenced to death after three aggravating factors were found.
- Sentencing mitigation included emotionally deprived childhood and substance abuse; defense obtained additional evidence and a neuropsychological evaluation.
- West’s prior federal habeas petitions were denied; this court previously affirmed in West v. Ryan (608 F.3d 477, 2010) and the Supreme Court denied certiorari (2011).
- Arizona moved for a warrant of execution in 2011; West filed a successive post-conviction relief petition in state court, which was denied, with further petitions pending in 2011.
- This petition requests permission to file a second or successive federal habeas petition based on new or newly discovered mitigating evidence and PTSD diagnosis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim was previously presented in a prior petition | West argues the new petition presents distinct claims. | The court finds the first claim raised in the prior petition; lacks new basis. | Dismissed as previously presented. |
| Whether the new evidence is newly discovered under § 2244(b)(2)(B)(i) | West contends family abuse and PTSD were newly discovered. | Evidence could have been discovered with due diligence earlier. | Not newly discovered; fails diligence or timing. |
| Whether the new evidence would establish actual innocence or negate the death-penalty factors | PTSD and abuse negate aggravating factors and show innocence from penalty. | New evidence does not negate all aggravators or prove innocence beyond doubt. | Even if considered, not sufficient to overcome death-penalty factors. |
Key Cases Cited
- Gonzalez v. Crosby, 545 U.S. 524 (U.S. 2005) (defines ‘claim’ for second or successive petitions; governs exhaustion rule)
- Calderon v. Thompson, 523 U.S. 538 (U.S. 1998) (applies actual innocence gateway and AEDPA standards)
- Sawyer v. Whitley, 505 U.S. 333 (U.S. 1992) (death penalty review standards; procedural constraints)
- Lackawanna Cnty. Dist. Atty v. Coss, 532 U.S. 394 (U.S. 2001) (finality and exceptions for actual innocence)
- West v. Ryan, 608 F.3d 477 (9th Cir. 2010) (prior habeas decision; diligence and mitigation issues)