Travis Wayne Berry v. W. L. Montgomery, 2:16-cv-00554

Background

Petitioner Travis Wayne Berry filed a federal habeas petition challenging his conviction; respondent is W.L. Montgomery, Warden.
Petitioner previously filed an earlier habeas application that was dismissed as untimely.
In the current (second or successive) petition, Berry renewed an ineffective-assistance-of-counsel claim focused on counsel’s investigation of a cardboard box and presented additional factual allegations and evidence.
The Magistrate Judge recommended dismissal under 28 U.S.C. § 2244(b)(1) because the claim had been previously presented; Berry objected.
Berry also argued he met the actual-innocence exception in § 2244(b)(2)(B)(ii) based on recantation/unreliability of a witness (Pearce) and evidence about the cardboard box.
The district court reviewed objections de novo, rejected them, granted respondent’s motion to dismiss, and denied the petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claim is barred as second or successive under § 2244(b)(1)	Berry: earlier petition was dismissed as untimely, so claim wasn’t adjudicated on merits and may be relitigated; new evidence/facts make it different	Respondent: § 2244(b)(1) bars claims previously presented, even if prior petition was dismissed as untimely; new factual detail doesn't avoid bar	Court: Dismissed under § 2244(b)(1); prior presentation suffices to bar claim despite untimeliness
Whether Martinez v. Ryan provides an exception allowing the claim	Berry: Martinez allows federal review of substantial IAC claims where state collateral counsel was ineffective	Respondent: § 2244(b)(1)’s plain language controls and bars previously presented claims	Court: Martinez argument insufficient to overcome the statutory bar
Whether actual-innocence gateway under § 2244(b)(2)(B)(ii) is met	Berry: Recantation and new evidence about the cardboard box show actual innocence or create significant doubt	Respondent: State court found recantation untrustworthy; other evidence (towing kit, victims’ car) supports conviction	Court: Gateway not met; factual findings by state court on recantation were not objectively unreasonable, and evidence did not establish innocence
Whether state-court factual findings were unreasonable	Berry: Argues state-court credibility findings are wrong and new evidence undermines trial evidence	Respondent: State court conducted evidentiary hearing and reasonably found recantation unreliable; trial evidence remains probative	Court: Did not find state-court determinations objectively unreasonable; credited state findings

Key Cases Cited

Babbitt v. Woodford, 177 F.3d 744 (9th Cir. 1999) (a claim is "previously presented" if its basic thrust or gravamen is the same)
McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009) (a later petition is second or successive even if the earlier petition was denied as untimely)
Martinez v. Ryan, 566 U.S. 1 (2012) (procedural default rules and limited exception for substantial ineffective-assistance-of-trial-counsel claims)
Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002) (district court found prosecution witness perjured; Ninth Circuit recognized impact on habeas relief)
Hall v. Director of Corrections, 343 F.3d 976 (9th Cir. 2003) (physical evidence shown to be doctored undermined the prosecution’s case and supported gateway review)