Cooper v. Brown

that end to achieve sought court district much. delegates too

here COOPER, Petitioner-Appellant,

Kevin

v. Warden, BROWN, California L.

Jill Quentin, Prison San

State

Respondent-Appellee.

No. 05-99004. Appeals,

United States Circuit.

Ninth 9, 2007.

Argued and Submitted Jan. 4, 2007.

Filed Dec. Kazemi, Orrick, Ali

Norman C. Hile and LLP, Francis- Herrington & Sutcliffe San CA, co, petitioner. for the Wilkens, Attorney Gen- Holly Deputy D. eral, CA, Diego, for the re- State of San spondent. RYMER, M. PAMELA ANN

Before: McKEOWN, and RONALD MARGARET GOULD, Judges. M. Circuit by Judge RYMER: Opinion by Judge McKEOWN. Concurrence RYMER, Judge: Circuit district appeals Cooper Kevin petition third federal denial of his court’s Sitting en corpus. of habeas for a writ banc, made out a Cooper held that we him to file facie case that entitled prima author- application; or successive second it; place, and remanded for the ized him to file but we see no abuse of discretion in district court to order that two tests be with, any respect agree and we adopt, question that “the of Mr. performed so analysis the district court’s on each of the Cooper’s innocence can be answered once claims. Woodford, Cooper and for all.” v. Accordingly, affirm. we (9th Cir.2004).

F.3d The two tests were a mitochondrial test of blond I hands, hairs found in one of the victim’s Cooper was first-degree convicted of the presence preser- and a test for the of the Franklyn murders of Douglas Ryen, Peg- bloody EDTA agent vative on T-shirt wife, gy Ryen, Ryen, his Jessica their 10- part prosecution’s that was not case year daughter, Christopher old asked, specifically at trial that Cooper but Hughes, 11-year neighborhood old remand, appeal, on have On tested. Ryen, friend of Ryen’s 8-year Joshua district court conducted the mitochondrial brutally old who son assaulted but EDTA testing DNA on the hairs and test- conviction, Following Cooper lived. ing the T-shirt. The results do not was sentenced to death. Cooper’s show innocence. The court also evidentiary hearings held extensive Cooper escaped from In- the California forty-two which witnesses testified with (CIM), prison, stitute for Men a state on respect encompassed all in to issues Coo- 2, Thursday, 1983, June and hid out in a per’s In a application. 159-page third rul- (the house) vacant house Lease next door ing comprehensively that addresses each Ryens’ to the Thursday night, residence on claims, then-Chief United States day all Friday, Friday and night before Judge Marilyn District L. Huff denied the Saturday the murders on night, June 4. and, petition alternatively, on merits Using a hatchet or axe a and knife that Cooper’s that ground claims in the house, came from the Lease Cooper petition procedurally successive are hacked Doug, sepa- to death who had 37 Denying barred. Order Successive Peti- wounds, Peggy, rate separate who had 32 27, tion for Corpus (May Writ of Habeas wounds, Jessica, who had 46 that wounds 2005) (Order) (attached A). Appendix as chest, carving included on her and Christo- Cooper sought, and provisionally we pher, Cooper who had 26 wounds. inflict- granted, a Appealability Certificate of head, chopping ed wounds to and stab- (COA) on whether the district court throat, bing wounds to the of Joshua. abused denying discovery, its discretion Christopher’s father found the bodies late necessary testing, evidentiary forensic Sunday morning. hearings, request expand and a The facts are set out in meticulous detail record; whether he is entitled to relief on in the district court’s order. Order at 892- innocence, actual claims of that 917; 954-61. it Suffice to summarize here tampered key state contaminated or that Cooper staying admitted in the Lease evidence, that the state failed disclose house; green a blood-stained khaki button exculpatory material in evidence violation jackets identical to buttons on field issued Brady Maryland, 83, v. 373 U.S. 83 the state prison Cooper from which 1194, (1963), 10 S.Ct. L.Ed.2d 215 and that escaped rug was found on the at the Lease unreliable; Ryen’s testimony Josh was and house; presence tests revealed the multiple whether he demonstrated consti- blood in the Leases’ shower and bathroom jury tutional errors without which the sink; hair guilty would have returned a not found the bathroom sink was or non- capital verdict. We leave the COA in Doug consistent with that of Jessica and

875 nia, S.Ct. 502 U.S. with dried blood covered Ryen; a hatchet (1991). Cooper’s first federal L.Ed.2d 755 near the ham that was found human and sup amended and subsequently petition, the Lease missing from was Ryens’ home 11, 1994, and August filed plemented, was hatchet was house, for the and the sheath 25, 1997; affirmed, we Coo August had denied Cooper where the bedroom found in (9th Calderon, 255 F.3d 1104 Cir. per a v. found on semen was stayed; Cooper’s 2001) I); petition and his house; (Cooper of the Lease in the closet blanket denied, (A-41) was 537 U.S. to writ of certiorari belongs that drop one of blood (2002). L.Ed.2d 100 male, Cooper S.Ct. which an African-American petition on Cooper filed a second federal Ryen is, the wall of found on 20, 1998, we construed as an April found which Jessica was hallway opposite where for authorization to file sec- testing application confirms DNA post-trial A-41; and denied. plant petition burrs or successive the source of ond Cooper is (9th Calderon, were sim- 274 F.3d 1270 nightgown Cooper v. found inside Jessica’s II). Cir.2001) to file vegetation (Cooper sought between He ilar to burrs house, Ryen involved petition house and another successor Lease the closet a blanket inside de- testing tampering, found on DNA which we burrs house, Calderon, at the Lease Cooper slept nied, No. 99-71430 Cooper where v. 2003) wagon, which was Ryen (9th station April Cir. Feb. were discovered missing (orders). Meanwhile, when the bodies Cooper filed seven Beach; abandoned, Long up, but turned Supreme petitions California nearly and one partial prints shoe two vari with a writ of mandate and together Ryens’ in or near the one found complete motions, in the San petition a habeas ous were consis- and in the Lease house house Court, County Superior and six oth Diego and Pro- Cooper’s with shoe size tent both in the for a writ of certiorari petitions er tennis shoes issued CIM Keds Dude as well as Supreme States Court United a deny having; hand- Cooper did corpus, habeas each of petitions two “Role-Rite” to- butt and cigarette rolled 2, February Cooper’s which denied. was in inmates at CIM was provided to bacco Supreme petition 2004 to the California vehicle, was and similar tobacco Ryens’ claims to those assert raised similar house; and a of the Lease in the bedroom denied all application; in this that court ed Ryen station fragment hair found 5, 2004, February merits on claims on the Cooper’s pubic with wagon was consistent untimely having those also denied as and in Ti- into a hotel Cooper hair. checked failure to tampering, to do with evidence Sunday afternoon. 4 o’clockon juana about evidence, exculpatory submission disclose jury, offering and testimony false to the re- court’s order likewise The district testimony. On Ryen’s unreliable history Joshua procedural from Coo- counts the 6, 2004, another 19, February Cooper filed February 1985 conviction. Order per’s application, a application to file successive judgment at 15696-703. sum: denied, v. initially Cooper Wood by which was sentence was affirmed conviction and Cir.2004), (9th with Court, F.3d 1019 ford, ob- 357 Supreme which the California (9th Cir.2004), drawn, but 357 F.3d 1054 volume and consis- that the “sheer served court sua after this granted was later overwhelming,” is tency of the evidence en 771, 837, application to rehear the sponte 281 decided Cal.3d People Cooper, v. 53 banc, Woodford, F.3d 1054 (1991), Cooper v. 357 90, 129, and 809 P.2d 865 Cal.Rptr. Cir.2004). (9th banc, En we authorized denied Supreme Court the United States filed, to be petition third habeas certiorari, Cooper’s Cooper v. petition for Califor- stayed pending and execution resolution of five law enforcement errors and miscon- duct) application. Cooper, petition. this 358 F.3d at 1124 of his third III). (Cooper II petition court denied the The district Standards of review under the Antiter- Cooper’s request and denied for a COA. rorism and Effective Penalty Death Act of May Judgment was entered (AEDPA) are well-known and are Cooper request When then filed a for a fully set out in the district court’s order. court, appeal COA this we allowed However, See Order 917-22. the frame go upon forward conditioned further work for analyzing an actual innocence briefing completed. once consideration Delo, “gateway” claim Schlup under v. COA, The state asks that we withdraw the U.S. 115 S.Ct. 130 L.Ed.2d 808 but we decline to do so. 28 U.S.C. (1995), remains unsettled. There is a 2253(c); Cockrell, § Miller-El v. 537 U.S. question governed whether such a claim is 322, 335-37, 123 S.Ct. 154 L.Ed.2d itself, the Schlup standard or (2003). Cooper This means that has AEDPA filing conditions for a second or leave to though assert even the dis- application, successive 28 U.S.C. trict testing court allowed the that we 2244(b)(2)(B)(i) (ii).1 §§ and House v. Cf. ordered, it abused its discretion how the Bell, 547 U.S. 126 S.Ct. were conducted scope tests 165 L.Ed.2d 1(analyzing pe habeas first held; evidentiary hearings that it tition seeking consideration of defaulted to appeal through denial of claims one four claims showing based on a of actual inno (actual innocence, contamination or tam- AEDPA). cence under Schlup rather than evidence, violations,

pering Brady However, this need not detain us for Coo unreliability Ryen of Joshua testimo- per fails to meet either standard. (unlawful ny), through nine six de- coveralls, bloody struction of ineffective as- Beyond this, a district court’s deci failing present sistance counsel for expert sion to exclude testimony is re confession, evidence of another person’s viewed for an abuse of discretion. Stilwell Inc., ineffective assistance of in failing counsel v. Smith & Nephew, 482 F.3d (9th Cir.2007). bloody to connect the coveralls to Lee 1191 “The trial court has Furrow, ineffective assistance of counsel in wide discretion in determining whether failing to introduce evidence that particular victims scientific tests are reliable hands, in clutching hair their and enough permit expert to testimony based denial of rights by upon constitutional eumula- their results.” United States v. Gil- (ii) claim, Schlup, 1. To a underlying make successful claim under the facts the if petitioner light "a must show that in of all the proven light and viewed in of the evi- evidence, evidence, including new 'it is more whole, dence a would be sufficient to likely juror not that no than reasonable would convincing establish clear and evi- petitioner guilty beyond have found a reason- that, error, dence but for constitutional ” Stewart, Carriger able doubt.’ 463, v. 132 F.3d no reasonable factfinder would have (9th Cir.1997) (en banc). 478 applicant guilty found the underly- For authorization to file a second or succes- ing offense. application corpus sive for habeas under 2244(b)(2)(B)(i) (ii). §§ 28 U.S.C. See AEDPA, petition must show that III, Cooper (discussing 358 F.3d at 1119 (B)(i) predicate factual for the claim finding unnecessary differences but it to de previous- could not have been discovered applies). cide which standard ly through diligence; of due exercise

877 Cir.1988) (9th understanding helpful on the merits is to F.2d 480 lespie, 852 omitted). (citations rulings, incorporate we procedural The determination its (without has sufficient expert analysis. an witness its repeating) whether for an testify is reviewed qualifications A States v. discretion. United abuse of 964(9th Abonce-Barrera, F.3d 257 that the district court Cooper complains .2001). Cir discovery requests, of his denied the bulk only three of them:3 his but focuses on court’s also review a district We photographs for and documenta- request in deny discovery permit or decision testing tion of the examination for an abuse of discre proceedings habeas T-shirt, A-41, and drop bloodstained blood Woodford, v. 331 F.3d tion. Bittaker V-17; cigarette butts V-12 and San banc). (9th Cir.2003) (en Such discov (SBSD) Department Bernardino Sheriffs cause.”2 only good “for ery is available by Deputy n. Derek Pacifico Woodford, F.3d files reviewed Hayes v. Cir.2002). (9th an abuse petition review for filed his third habeas Cooper “We after the district court’s denial investigation of discretion an into whether part as scope of an evidentiary hearing and Midge had or had CIM Warden Carroll v. held.” Williams evidentiary hearing trial with Bra- not contacted SBSD before Cir.2004). (9th 567, 586 Woodford, 384 F.3d regarding evi- dy shoeprint information dence; data of Dr. request and his test Ill Siuzdak, testing EDTA Gary one of the that relate to first consider issues We court, by the when Siuz- experts selected its dis- whether the district court abused discovering his results after dak withdrew deny- Cooper contends it did in cretion as laboratory. EDTA contamination discovery, failing to order forensic ing only sketchy explanation Cooper offers could show at evi- testing, limiting what he why requests, prej- these without denying expand dentiary hearings, refusing udice, court’s discretion. We abused the Many of record on certain claims. concluding that it did. no basis for discern with the mer- issues are interwoven these relating to materials produced The state through one four and six its of claims testing in 2001 post-conviction DNA nine, Cooper raises discrete through but materials were also exhibits and these sepa- that we treat procedural challenges hearing conducted evidentiary because, if the dis- rately we can as best denying cannot how court. We see district trict court did not abuse its discretion mattered at discovery as to these materials with its rulings, agree we procedural these all. Necessarily there determinations. other January 2004 dec- is, Carroll’s Warden extent there overlap; is to the that she had learned before laration court’s discussion stated reference to the district pointing to 6(a) stop pursuing evidence Governing murders to the Rules Section 2. Rule of Cooper, the notes than and of provides: someone other 2254 Cases Department Bernardino Sheriffs of San cause, (a) may, good authorize judge A for who, (SBSD) peti- investigators after the third discovery under the Fed- party a to conduct filed, investigated employees tion was may Civil Procedure and limit eral Rules of night Canyon patrons Corral Bar on of the discovery. the extent of However, develops no he murders. respect we deem argument with to them and requests, Cooper’s briefing other 3. mentions denials, others, aban- appeal to these as e.g., discovery related to instructions for investigating time of the doned. authorities at the unjustified by possibility trial —and had communicated to one fico was that Cooper may lead detectives on the case—that Pacifico’s review have overlooked specially reflecting carried were not SBSD documents a communica the shoes CIM tion that Carroll’s own designed prison-issue shoes and were com- detailed files do not addition, show. In general public prosecution’s available to the theo mon shoes ry was not that Pro-Keds other Dude shoes through Sears and such retail (the prison were limited to inmates Stride the en banc stores.4 Because court was Rite records introduced at trial showed Brady that a violation persuaded appeared III, government distribution to other indicated, institu Cooper to be see 358 F.3d at tions), that but there was a link between 1120-21, the district court set evidentia- imprints Ryen found at and near the ry Cooper’s claim hearing to address that Cooper, house and the Lease house to failed to prosecution disclose Carroll’s having who never denied a pair of Pro- testimony It heard information. from Keds Dude shoes. Contracts from Stride Carroll; Smith, Lt. Donald former inves- Rite that were evidence at trial show Carroll; tigator at CIM under Don P. 1,390 purchased that CIM Pro-Keds Dude Luck, manag- a former executive and sales shoes. personal Carroll herself had no Corporation, compa- er for Stride Rite knowledge whatsoever about the availabili ny that manufactured the Pro-Keds Dude ty of the tennis shoes CIM or else Coke, shoe; tennis and Sandra the defense Thus, where. even if had she called SBSD investigator who obtained declarations avers, as her declaration all that she could Carroll, Taylor, from James a CIM inmate have communicated was her that gave who testified at trial that he belief Pro- Pro-Keds Dude shoes weren’t available Cooper, Keds Dude tennis shoes to CIM but were at places available like Detective Derek Pacifico of SBSD.5 Car- Sears —which is both mistaken and imma Cooper’s roll’s files escape about and the Consequently, terial. her communication investigation murder also evi- could not have had appreciable bear They extremely dence. are detailed and ing Brady on a claim. Pham v. Ter conversations; Cf. telephone include records of hune, (9th Cir.2005) 400 F.3d however, they contain no indication that 6(a) (noting discovery that under Rule spoke she with the SBSD about tennis should not be denied if it is essential to part shoes worn CIM inmates. for claim). fully develop petitioner’s reason, this the court did not abuse its in concluding Cooper’s discretion Finally, re- the court within acted its discre- quest for all denying SBSD files reviewed Paci- tion in Dr. access to Siuzdak’s was, course, Although phone the district cited a Cooper court 5. Carroll known to day slip from one. "Midge with the name She had contact with defense Carroll” dated investigators before and after trial. Carroll's pages and two Cooper's connection between the breadth of error, any. record to correct this if For this request possibility adducing and the of favor- reason, the court neither abused its discretion able, material information that would tend to truth, contends, ignored Cooper nor the as in exculpate unlikely him. It is that the SBSD denying Expand his Motion to the Record thought capable suppress- would have itself of Pursuant to Rule 7. ing information that Carroll herself could eas- ily provided Cooper. have to held a tutorial on The district court not re- did EDTA test results His data. testing EDTA mitochondrial DNA and from the PBS results expected the flect Cooper were for and the state experts control and so which blank reagent buffer tutorial, Cooper’s expert, not re- was At the Contamination testified. unreliable. in Melton, use EDTA markable, explained laboratories that mito Terry as Dr. unrelia- results were effectively As Suizdak’s used testing. testing cannot be chondrial to Coo- ble, prove hairs, not be used they could rather but identify to the source claim. per’s tampering exclusionary method as it primarily an is ma only a hair shares determines whether

B individual. particular ternal DNA with a the district court’s contends that Cooper and or developed protocol a The court bloody T-shirt was the testing protocol for testing for dered that ten hairs suitable (1) while the court respects: in five flawed for mito from hands be tested Jessica’s order with en banc facially complied the (one DNA and that two hairs chondrial to select a stain allowing only Cooper Doug Ryen’s hand and one on found on anti-clotting agent for limited T-shirt the arm) identified in 2001 as Hughes’s Chris presumptive to allow testing, it refused tested. Dr. having anagen roots also be the testing to determine whether blood criminalist, DeForest, Cooper’s selected (2) stain; it a blood tested was even stain hairs, to animal proved the hairs. Two be Dr. Peter De- experts, allow his did hairs could not remaining on the and tests Ballard, the Dr. to view Kevin Forest Jessica, ma Josh or their Peggy, exclude designing in the step a first as T-shirt Therefore, ternal relatives as donors. (3) Dr. accepted it at face value protocol; DNA tests did not of mitochondrial results EDTA of his Gary retraction Siuzdak’s pulled out that these indicate hairs (4) results; testing for it denied testing party a third perpetrator. the head of (5) it anti-clotting agent migration; the T-shirt for testing to respect With anti-clotting for testing other denied determining whether the purpose of to citric that were used such as acid agents blood, Cooper’s previously associated He also main- Cooper’s blood. preserve DNA, the district court planted, had been facially court the district that while tains protocol over a the EDTA developed perform court’s order to complied with this in- and after extensive period three-month testing to determine DNA mitochondrial experts. Upon from counsel put belonged scene hairs at the crime whether recommendation, the court parties’ testing party perpetrator, a third testing method of adopted also a “control” Ed- of Dr. the recommendation ignored EDTA the amount of detected in which groups Blake to evaluate unexamined ward to the amounts compared a stain would be submits, result, a Cooper hair. As a control swatches of EDTA found various examined of hairs never large group was portions and from other non-stained (roots indicate anagen for roots protocol, Pursuant T-shirt. having been cut pulled instead of hair was by Dr. DeForest stain was be extracted broken), group in that and thus hairs or and Dr. Suiz- to Dr. Ballard shipped He testing. were never considered testing. After dak for double-blind EDTA Cooper against DNA argues that the also submitted, par- the test results were con- hairs were which the examined testing for DNA protocol proposed ties prove could not and therefore taminated the main stain fabric to determine whether of the hairs. possible he was source testing from the EDTA contained cut-out that the district court abused disagree We the results of that From Cooper’s blood. conducting either test. its discretion 880 not

testing, Cooper application could be excluded as a spectrometry mass to foren- contributor of the DNA extracted from the analysis sic of blood evidence to determine cut-out, Peggy Ryen, Ryen, while Jessica EDTA levels can or be has been tested. Ryen, Doug Ryen Hughes Josh and Chris technique has been offered to courts a possible were each eliminated as contrib- only before; case, twice in one there was ultimately utor. The court that concluded challenge no to the EDTA evidence and in testing EDTA lacks sufficient indicia of other, Ballard, Dr. as well as the reliability to be admissible under Daubert EDTA testing that he perform, was to Pharmaceuticals, Inc., v. Merrell Dow 509 rejected by the court. EDTA testing U.S. 113 S.Ct. 125 L.Ed.2d subjected has not been peer to review and (1993). However, the court alterna- there has been no discussion of forensic tively that Dr. found Ballard’s dis- results EDTA testing scientific literature since prove Cooper’s theory tampering be- a 1997 article that headlines the need for a Cooper’s theory requires cause a high level analytical short, better method. presence blood, of EDTA but the explained reasons in detail the district EDTA level the stain with blood was court, 942^8, Order at testing EDTA has actually lower than that of most of the gained general acceptance in the scien- (de- control areas. See Order at 933-50 tific community. scribing process and making EDTA find- ings). Regardless, Cooper explain why fails to additional inspection of the T-shirt was Turning Cooper’s contentions necessary, for an appropriate stain and T-shirt, about testing of the we note at the 6G, controls were selected after the stain outset it is immaterial whether the selected, initially that was proved unavail- EDTA tests were flawed or not because already able because it had been con- the district court had discretion to con sumed. Dr. DeForest participate did not clude that testing EDTA does not meet in this selection because he had removed Daubert, Daubert standards. “In himself, laboratory but Cellmark —a Court set out four factors to be reviewed Cooper agreed highly qualified 702:(1) when applying Rule whether the —re- placed him to conduct the extraction. No theory or technique can be or has been appears in basis the record (2) question tested, theory technique whether the or used, selection of the stain that was (3) and subjected review, has been peer Cooper points to appeal. none on Dr. whether the error rate is known and stan Maddox of Cellmark and the state’s ex- controlling dards exist the operation of the (4) pert, Myers, technique, Steven selected an area whether be- theory or tween two stains technique gained general designated has accep “6J” and “6K,” tance.” each United States v. of which had earlier Benavidez-Be been found - navidez, (9th Cir.2000). 217 F.3d to be containing primarily blood Cooper’s There is no evidence in the record that DNA. skill, governs Federal Rule pert by knowledge, of Evidence 702 ad- experience, train- missibility of scientific evidence in education, federal dis- ing, may testify or thereto in the CARISSA, trict court. v. Clausen NEW M/V otherwise, (1) opinion form of an or if (9th Cir.2003). 339 F.3d pro- It testimony upon is based sufficient facts or vides: data, (2) testimony product is the scientific, technical, If specialized or other methods, (3) principles reliable knowledge will assist trier of fact to applied principles witness has understand the evidence or to determine reliably methods to the facts of the case. issue, fact in qualified a witness as an ex- had identify hairs that in order to Dr. ies why appear any reason

Nor does from the skin. pulled of hair properties not have should representations Suizdak’s value; he can be used testing anagen the with roots Only at face accepted hairs been double-blind, is a they, he only was an assailant because identify to undertake to was scientist, had no and he hair, respected well a cut or broken as contrasted in the outcome. interest may victim have that the can indicate struggle. hair in a perpetrator’s the pulled presumptive asked Cooper never meeting experts’ criteria Three hairs im- was protocol testing before blood testing identified, DNA but nuclear to were reason sufficient which is plemented, no human DNA. yielded hairs appeal; of these on reject argument ruling, the dis- the tested area to the en banc event, analysis Responsive as DNA be to Cooper could not Cooper’s that allowed criminalist later confirmed trict court the DNA ex- a contributor those removed excluded as to 10 from up select hairs cut-out, point is no there tracted from for mitochondrial Jessica’s hands from the lack now about complaining to his iden- anagen hairs were testing. No DNA Likewise, ar- Cooper testing. presumptive tested selected were the 10 hairs tified and the test results concern before ticulated no remaining hairs sub- the two along with that EDTA possibility in about were testing in 2001. nuclear jected DNA the selected migrated from have could Jessica, Peggy, and The show that results migra- post-hoc if his Regardless, stain. as the not be excluded Ryen could Josh correct, it would be theo- were theory tion hands. the hairs source of Jessica’s meaningful retically impossible achieve turned the court contends that Cooper there no testing as is further results from that expert’s” “own view on its its back background way whether to determine designed to ensure must be testing hair are the shirt throughout EDTA levels thorough, but complete and that it is no “nor- for there is normal higher than First, accounts. faulty on two premise is EDTA. level of mal” base to—Dr. Blake—was referred the expert testing that suggestion Finally, Cooper’s Cooper as charac- expert, not the court’s as citric anti-clotting agents such for other him; Cooper’s expert he was terizes misplaced is have been allowed should acid throughout has been state court his blood was where only occasion as the not and did become proceedings, federal acid containing citric in a tube preserved appoint- of his solely on account otherwise Quentin San it was drawn was when of as- purpose for the the court ment SBSD, only and the Prison, by the not im- More suring adequate compensation. to which Cooper’s sample blood not recommend Blake did Dr. portantly, into a tube was access drawn SBSD had examined, Cooper as hair be every Fur- preservative. EDTA as containing contrary, Blake testified suggests. To therefore, was, the T-shirt testing on ther this go through only reason that “[t]he required. be simply to more is one time process DNA the mitochondrial Neither and detailed rigorous much more By argues. Cooper as testing deficient abe that be deemed to survey, should ex- forensic Cooper’s background, way of opined never thing to do.” He useful (Dr. Blake) of Jus- Department pert or reasonable. it be useful would six Myers spent criminalist Steven tice sam- that his blood argument Cooper’s conducting visual jointly days in 2001 point. is beside the contaminated ple was approximately microscopic examination if to see examined never hairs the victims’ bod- recovered 1000 hairs they Cooper, came from and there has discretion to find that Cooper’s request for any never been evidence or suggestion to further inquiry goose would be a wild Rather, Cooper’s theory that effect. was Cooper chase as had no license plate or that the hairs came from a party, third other might information that lead to the is, killer, that from the real and if this driver, and to conclude that it would be shown, presence could be then the of a unlikely produce anything probative party prove third at the scene would testified, value. Stark so the incident did why innocence. That is the en banc court not inhibit him and even if it were law- testing. ordered mitochondrial See 358 enforcement speculates, related as he it (noting F.3d at 1124 that mitochondrial tendency would have no prove what testing light of the blond or brown hair in happened Canyon at the Corral Bar. hand, Ryen’s Jessica if favorable to Coo- Cooper also submits that the im- court per, positively identify could Lee Furrow properly refused to allow him to examine killers). perhaps or others as the killer or Gregonis, Daniel the SBSD criminalist re- Thus, if Cooper’s sample even were con- sponsible for examining and testing sever- taminated, it is irrelevant. al items of evidence including the blood- T-shirt, A-41, stained drop blood and the

C cigarette However, butts V-12 and V-17. Cooper maintains that the district court Cooper given was an evidentiary hearing present refused to allow him to evidence in state court in present 2003 to evidence suspicious related to the three inmen claims, of his tampering Gregonis tes- Canyon Corral Bar. This is belied tified and was by Cooper’s examined coun- record. points See Order 961-69. He sel. He had an opportunity to develop a Warren, of A1 exclusion a bartender who record, and the district court was not was not present night on the mur- obliged to provide another one. ders, only for whom his proffer was that Warren “presumably” privy was to discus- The same is true to the extent Coo Having sion of the incident. heard from per contends that testing further is needed (Edward duty bartender who was on in general items, to show that these blood Lelko), the manager, the waitress who spots Series,” identified as the “UU and a drinks, served the three men patrons two sample blood drawn from him at the time men, who saw the three another waitress (W-2) of his arrest tampered with. bouncer, who was working night, a Each claim procedurally and, is barred frequented Canyon others who addition, both the tampering with the UU Corral, the court had discretion to decline Series claim and planting of cigarette to hear another bar employee who was not butts claim have been previously adjudi percipient. Cooper points also to limited See, Calderon, cated. e.g., Cooper v. No. inquiry into tampering witness with Lance 92-CV-427H 50-51. As we have Stark. Stark testified that before the evi- explained, it doesn’t matter to of Coo dentiary hearing, approached by he was an per’s claims whether his sample blood white, wearing individual short sleeve (W-2) not; was contaminated or it wasn’t white, shirt and driving unmarked Ford used for anything material. Crown Victoria a computer extending Cooper also insists the fact that the arm, out from the dashboard on an whom (V-12) size of one of the cigarettes he believed to be a member of law enforce- changed by ment and having who made it clear that it millimeters after would be in Stark’s been best interest not to talk about unrolled for testing demonstrates However, the Cooper case. the court had tampering, position but his rejected by information and had no direct with SBSD af- Superior Court County Diego San that he could investigation. All about the Cooper has hearing and evidentiary ter have learned was secondhand possibly de- due that the deference overcome Par- 2254(d). by Jim recounted public information § U.S.C. under 28 termination County sons, Riverside (4 mm) deputy with the aof was measurement The first a dec- Department who submitted Sheriffs second measurement “butt,” whereas event, who, any had and laration himself in mm) given for (7 dimensions one of is two Cooper in case or no involvement mm.” It clear in 7x7 is box paper “burned read in beyond it what he knowledge of of un- is measurement the second that light saw on papers or television. the first measure- whereas paper, rolled this, in no error the court committed That di- butt. of the rolled is ment hearsay information was self-evident, excluding that different is would be mensions immaterial to as well as speculation and way into in no calls the difference and Brady obligations. SBSD’s finding re- court’s or the state question stage. this inquiry at further quires the district contention that Cooper’s allow him to refused to improperly court assert that to Cooper continues regarding present and evidence one uncover to at least is bloody T-shirt connected log on the daily logs and a blue shirt listed and that the district perpetrators 6, 1983, evidence con- fails as no for June he was allowed limited the evidence court log that the state’s submission tradicts the tampering. to show present and develop to trial. Coo- Cooper to before have was available reasons we for goes This nowhere judge to the trial represented per’s court counsel did the district just explained. Nor The issue daily logs. that he had allowing Cooper in not its discretion abuse could, should, long pursued have and been clarify the Ballard to reliabili- recall Dr. to Order at methods, before now. See 994-97. that he testing to state ty of his anti-clotting agents, other test for could precluded that he was Cooper argues reliability of labo- testify to the and to shoe claims exploring his tennis fully from experts with to ratory; or cross-examine him to re- to by the refusal allow court’s to anti-clotting agent testing; or to respect and to the records Pacifico reviewed view Dr. Lewis Dr. Suizdak and cross-examine Newber- to questions Michael send written Maddox, the stain solutions prepared who Corpora- Rite for ry, who worked Stride extent relevant testing. To the for Rite Stride at trial that tion and testified expert input for opportunity helpful, ample Pro-Keds with CIM for had a contract afforded. consultation was not available that Dude tennis shoes were already ex- stores. We have in retail court faults the district Cooper also its why court not abuse did plained pursue him to exam refusing permit to discovery order declining in discretion Ruiz, Anthony informant Albert ination of by Pacifi- reviewed all files into the SBSD evidentiary hearing on who testified an why co, Cooper proffer makes no have might what he August about Newberry shed would questions en other than law sources heard were, them- contracts which light on the County. The in San Bernardino forcement evidence, selves, or distribution Brady Cooper’s was to relevance asserted to which there Dude shoe as the Pro-Keds failed to disclose prosecution that the claim for Car- dispute except is no substantial — that law enforcement from Ruiz evidence belief. roll’s unfounded inculpating evidence plant ordered to he was discretion, complains that Cooper also as abuse Cooper. We see no Ryen Josh to cross-examine dealings allowed and had no not work for Ruiz did Four, connection with Claim which nipulation, unreliability, asserts of the trial version. disagree We the court testimony at trial Josh’s was altered abused its discretion.8 accepting Even and unreliable. As the district court Cooper’s position that Ryen’s April Josh found, the facts and circumstances sur- 22, 2005 statement require- satisfies the rounding Ryen’s statements Josh and how ments for an evidentiary hearing they jury to the have been presented 2254(e)(2) § because the latest version twenty years. jury known for heard could not earlier, have been discovered taped pursuant par- two statements to the 2254(e)(2)(B)9 § applies nevertheless stipulation: ties’ videotape of inter- bar jury relief as the knew Ryen that Josh view on December 1984 when Cooper’s had given somewhat inconsistent accounts questioned counsel and the prosecutor yet Cooper anyway. convicted We cannot oath, Josh under an audiotape of a juror conclude that no reasonable would 1, December 1983 interview with Dr. Lor- have Cooper knowing convicted that Josh Forbes, na treating psychiatrist. Josh’s Ryen now recalls a bushy man with hair. identify He did not an assailant in either Finally, Cooper maintains that the dis- one, but said on the one hand that three trict court purported to credibility make Hispanic day workers visited the ranch the solely determinations witnesses based murders, of the and on the other that he on documents. Even if this weren’t al- a single “puff’ saw man with a of hair (which is, lowed it in appropriate circum- 22, standing over his mother. April On stances), he points to no instances where 2005, the district Ryen, court allowed Josh happened. this along Christopher with Hughes’s parents, Accordingly, there is no basis to remand amake statement about their views of for examination and testing more of the the Cooper argues matter as victims.7 evidence, or additional evidentiary hear- that he should have allowed an been evi- ings, Cooper urges. as dentiary 22, hearing April because the IV (during Ryen statement which Josh hair) recalled a man “bushy” with was a The district court denied Cooper’s that proves “third version” further the ma- claim of actual innocence after detailing the Cooper This was after close of evidence. The has known about Josh's somewhat Hughes Ryen murder, district court allowed and Josh inconsistent versions since the he opportunity to make a statement consistent diligence failed to developing exercise due Congress's with intent in The Justice For All predicate the evidentiary factual for a new Act, 108-405, § Pub.L. No. 118 Stat. 14878-79; hearing. See Order at 28 U.S.C. (2004), 2261-62 2254(e)(2). victims be heard. § noting jury 8. Aside from that the never heard 2254(e)(2)(B) part, 9.In § relevant 28 U.S.C. hair, bushy Josh's recollection of man with provides evidentiary hearing that an shall not the district court did not base its Claim Four be held on a claim unless it relies on a factual anything determination on that Josh said in predicate previously that could not have been Rather, his victim statement. it found that through discovered the exercise of due dili- taped defense was benefited at trial gence, and presentations Ryen because Josh did not iden- assailant, tify (B) jury heard underlying his earlier the facts the claim would be Hispanic statement that three workers had sufficient to establish clear and convinc- ranch, stipulation been at the ing and the avoided evidence that but for constitutional er- ror, sympathy having present factor of Josh no reasonable factfinder would have the stand. It concluded that applicant guilty deference was found the underlying and, due to the state court’s determinations as offense. House, 851; he is the 115 S.Ct. see 126 S.Ct. at DNA evidence shows standard). drop Schlup 2076-78(explaining of the DNA extracted from donor Thus, hallway Cooper neither Schlup’s gate- blood found outside meets (A-41), saliva from It follows Ryen way master bedroom nor AEDPA’s.10 that Coo- ciga- and manufactured the hand-rolled has not met Herrera’s per standard (as CIM) Collins, at found inside rette butts used innocence. Herrera v. actual Ryen wagon, station the abandoned 113 S.Ct. L.Ed.2d 203 U.S. (1993). the T-shirt found near the blood smears on (even it Canyon though Corral Bar V Cooper’s guilt

not used establish trial); discussing Cooper’s procedural chal- explaining why Cooper’s challenge already is re- we have unavailing; lenges, why the DNA evidence indicated he viewing prior findings that document on his court is not entitled to relief claim that guilt; tampered and con- overwhelming evidence the state contaminated or sidering testimony forty-two wit- respect the evidence with to examination introduced nesses numerous exhibits testing of the T-shirt and the blood (A-41). hearings held after remand. evidentiary T-shirt, course, spot at Order 950-84. against used as it Cooper not evidence so to see it is difficult how could have had Cooper the district court was argues Post-conviction, inculpatory effect. howev- in incorrect of substantial evidence light er, it has become the center of attention. Canyon in party perpetrators third See, 1124(ob- III, e.g., Cooper 358 F.3d at Bar Ruiz’s tes- Anthony and Albert Corral serving Cooper’s that this centers on case it, timony. Cooper sug- do That he didn’t innocent, that he is and quoting claim his by showing is his of alter- gests, bolstered “ that EDTA argument testing ‘the suspects through native the Kenneth Koon Cooper’s of Mr. innocence can be question Lee concerning confession and information (Silver- ”); answered once and for all’ id. bloody and coveralls. dis- Furrow We J, man, in concurring part dissenting C agree, for reasons stated the district (noting “[everything in that comes part) 980-82; court. See Order at 983-84. t-shirt”). bloody to the The San down agree with the district court’s con- We County Court evi- Diego Superior took Cooper’s challenges that all of clusion tampering on the claim and found dence “have come the same: there is over- back none, Supreme and the California whelming evidence that Petitioner is for man- Cooper’s petition denied writ of at person guilty of these murders.” Order EDTA turned testing date on the issue. evidence, Considering all the new nothing to up tampering. indicate old, that it is Cooper has shown There was neither visible blood remain- likely not that reasonable more than no paint comprising A-41 nor beyond ing chips found him juror guilty would have for Schlup, sample at control areas around the blood a reasonable doubt. 513 U.S. finding through diligence that of Coo- due that establishes 10. In addition to most that, allegations convincing per’s that was clear and evidence but relate evidence error, already presented previously at trial and re- constitutional no reasonable factfinder guilty, under jected, and the remainder on unrelia- would have found him or that rest source, 2254(d), requires § that the state or information which ble incorrect contrary Cooper an unrea- that did not meet his court's decision be or court concluded 2244(b), clearly application § fed- U.S.C. which re- sonable established burden under 28 quires a claim eral law. factual not discoverable if purposes determining sig- Eckley there is a that did act in destroy- on his own ing nificant difference between the amounts of discussing coveralls without it with So, compared Schreckengost. EDTA in the stain with areas as the district court held, Accordingly, for surrounding disposition report it. reasons it does not cast explained Eckley’s testimony that well-founded the rec- doubt on are or undermine ord, prior the district court concluded that A-41 findings and conclusions of the reliably is not able to be tested for Supreme the California Court or the district presence of EDTA. Order at 948-50. court’s own determination that the cover- place finding This leaves of the state alls were not exculpatory material evi- tampering court that no occurred. Cooper Cooper’s dence case. at Order 987-89. convincing why firmly offers no evidence that We are not convinced finding is this wrong. finding is not correct and entitled to defer-

ence. rejected The district court Cooper’s con- tention prosecution that the appeal beyond

To the extent his extends failed to dis- close that a items, police present officer was agree these we also with the district Canyon Bar night Corral on the analysis Cooper’s court’s claims of murders based on testimony extensive tampering withholding evidence lack actually about what happened night merit. See Order 997-1000. and what it viewed as the more credible Vi version of those Cooper’s argu- events. Cooper argues that the district appeal court’s ment on is insubstantial and leaves analysis Brady contrary of his claims was us without a firm conviction that the dis- clearly established federal law as set trict court erred. As police there was no Kyles Whitley, 419, presence forth in v. 514 U.S. at the bar on the night of the murders, 435-36 & n. S.Ct. was no evidence for the there (1995), analyzed L.Ed.2d 490 in that it prosecution to suppress. Brady individually each claim without ana- Cooper additionally alludes to the fact lyzing their cumulative effect. agree We that Timothy Detective Wilson had infor- analysis

with the district court’s with re- mation that suspicious three men were gard alleged to the withholding state’s and bar, seen in the passed which he on to the manipulation of evidence related to.shoe- sergeant in charge of the Ryen/Hughes prints Ryen found in the home and hideout investigation prosecution but which the house, coveralls, bloody shirt, the blue However, failed to Cooper. disclose to Coo- Canyon and the Bar. Corral As there is no per offers no suggestion why this informa- violation, Brady individual there are no tion undermines confidence in the verdict. violations to cumulate. It was no secret strangers that three were

Apart from already what we have dis- at the bar. The district court found that cussed, the district court held an evidentia- the more credible version of events came ry hearing Cooper’s to evaluate claim that employees patrons from and interviewed disposition he in 1998 a report shortly discovered after the murders who testified at event, that Deputy initialed “KS” contradicted trial. none of the witnesses Eckley’s testimony Frederick trial that on physical casts doubt on the evidence of own, destroyed his he had Cooper’s guilt. coveralls As the court’s exhaustive that Roper gave Diana him. After recital Canyon consid- of all the Corral evidence— ering testimony Eckley Deputy that both adduced trial and at the evi- (the “KS”) Ken Schreckengost dentiary hearing shows, “KS” of see Order at — 961-69, evaluating credibility, their the court found that picked up rumors Wilson failing to have dered ineffective assistance not the streets could been word on or material. con- impeaching present person’s evidence another exculpatory, murders, failing fession to connect to VII Furrow, to bloody coveralls Lee jury that court noted The district failing to that victims introduce evidence of Joshua taped two statements heard clutching hair hands. He were their that Ryen, stipulation, to benefit- pursuant reply. of these claims in pursues none identify he did not ed the defense because adjudicated previously Each has been assailant, had indicated that his earlier are in one forum or another. And we had been at the Hispanic three workers accord with the district court’s treatment ranch, garner not to and was on the stand claims. See of all at 980-85. these Order The court deferred to denial of sympathy. claim on the merits Cooper’s constitutional IX pursuant Supreme Court the California prevails Our that on Cooper conclusion 2254(d), § and found that U.S.C. moots last none his claims his submis- that, had not demonstrated but Cooper sion, that his conviction and sentence error, juror reasonable constitutional no by multiple infected constitutional errors if guilty Ryen found him Josh would have jury have re- without which would subjected testifying at trial. had been guilty or verdict. non-capital turned agree. Order at 999-1001. We courts, court, As district all state found, repeatedly of Coo- have evidence VIII guilt The tests per’s overwhelming. is briefing posits initial that he Cooper’s innocence he asked for show his relief his claim entitled to SBSD sort. nothing “once and for all” show coveralls, destroyed bloody unlawfully AFFIRMED. claims that trial counsel ren- and on his A APPENDIX corpus petition tion for of habeas Denying Petition for writ

Order Successive Writ of Habeas § chal- pursuant to 28 U.S.C. 2254. He 2005) Corpus (May for the first- lenges capital conviction Franklyn Douglas of degree murders United States District Court wife, Ryen, Jes- Ryen (“Doug”), Peggy his Southern District California Ryen, 10-year-old daughter, their sica COOPER, CASE Peti- KEVIN CAPITAL Christopher Hughes, 11-year-old tioner, friend, attempted neighborhood and the vs. Ryen, 8-year-old murder of Joshua Warden, BROWN, Acting JILL L. San Peggy Ryen. Doug son of Prison, Quentin Respondent. State chal- petition successive Petitioner’s H NO. 04-CV-656 CASE lenges post-conviction DNA test results 98-CV-818-H, 92-CV-427- cases Related responsible that confirm Petitioner is H (DOJ murders. Ryen/Hughes for 2, Denying Report July Physical Evidence dated Order Petition Successive Corpus for of Habeas 2002; Writ Physical Evi- Supplemental DOJ 24, Report Sept. dence Exam dated Cooper, Petitioner Kevin California 2002.)1 pur- DNA were done These tests prisoner, brings peti- state this successive 23, 2004, (“NOL”) (92-CV-427, Lodgment filed Ex. Supplemental Jan. Third Notice of suant to a DNA Testing exhibits, Joint Forensic numerous prior considered the (“Joint Agreement Agreement”) DNA en- record, and parties’ listened to the oral 10, May tered on 2001.2 Those results arguments, this Court DENIES the suc- provide strong evidence of Petitioner’s petition cessive corpus. writ of habeas Ryen DNA from inside the blood residence

(one billion), PROCEDURAL from saliva HISTORY on two cigarette butts recovered from the stolen February 19, 1985, On Petitioner was (one Ryen wagon station in 19 billion and convicted of four counts of first-degree million), one in 110 and from a T-shirt (Cal.Penal 187(a)) § murder Code Doug found on the side of a road that contained Ryen, his wife Peggy Ryen, 10-year- their (one million) Petitioner’s blood in 110 daughter old Ryen Jessica and a neighbor- (one Doug Ryen’s victim blood tril- 1.3 friend, hood 11-year-old Christopher lion). (Supplemental Physical DOJ Evi- Hughes. Petitioner was also convicted of Report 24, dence Exam dated Sept. attempted murder degree first In addition to the DNA inculpat- evidence (CaLPenal 12022.7) 664,187(a), §§ Code Petitioner, ing profiles DNA of blood taken Ryens’ eight-year-old Joshua, son from a hatchet was taken from the severely wounded sole survivor. Petition- house where Petitioner hid after escape pled er also guilty to escape from a state from prison that of several of the matched (CaLPenal 4530(b).) prison. § Code The victims including Doug Ryen and Jessica jury found allegation true an special Hughes. (Supplemental and Chris DOJ (CaLPe- murders, multiple circumstance of Physical Evidence Exam Report dated 190.2(a)(3)), § nal Code as well as the alle- 24, Sept. gation that Petitioner intentionally inflict- February On the Ninth Circuit great ed bodily injury survivor, on the sole granted request Petitioner’s file suc- (CaLPenal 12022.7). Joshua Ryen § Code petition cessive corpus for writ of habeas jury penalty determined the as death. in federal court and remanded the succes- May On the trial court sentenced petition sive to this Cooper Court. v. him to death. (9th Cir.2004). Woodford, 358 F.3d 1117 6,May On Supreme California The Ninth stated that Circuit judgment affirmed the of conviction guilt may through be resolved two scienti- and sentence of death. People v. Kevin (1) fic tests: testing mitochondrial DNA Cooper, Cal.3d 281 Cal.Rptr. (2) hairs found on the victims testing (1991). 26, 809 P.2d 1991, 865 On June of ethylene-diamine the T-shirt for tetra- (“EDTA”) Supreme California Court denied Petition- acedic preservative. acid blood petition er’s rehearing for Id. at 1123-24. and issued its Having conducted mito- 16, remittitur. 1991, chondrial DNA On December testing and EDTA testing, parties’ reviewed the papers, Supreme heard testi- United States Court denied Peti- mony witnesses, from forty-two reviewed tioner’s petition first for writ of certiorari. 4, Physical Report No. DOJ ("Supplemental Evidence Exam Physical DOJ Evidence Exam 2, ("DOJ 24, July Physical 2002”).) dated Report Sept. 2002 Evidence dated 2002”); 92-CV-427, Report July dated 2, 23, 2004, Supplemental

Third (92-CV-427, NOL filed Jan. Supplemental 2. Third NOL filed 5, Supplemental 23, 2004, Physical 23, Ex. No. DOJ Evi- Jan. Ex. No. Joint Forensic DNA 24, Report Sept. 10, dence Testing Agreement 2001.) Exam dated May 2002 dated

889 1016, Supreme in corpus U.S. the California Court. California, 502 Cooper v. (1991). (Answer, 30, 1997, September 664, 116 Ex. On L.Ed.2d 755 S.Ct. motion to Petitioner filed his second recall 24, 1992, requested Petitioner On March Supreme remittitur in the California stay and a of exe- appointment of counsel 15, Court, which denied 1997. October 26, this On March cution from Court. (Answer, Ex. 1992, stays in a of of execu- first series v. Cooper 26, 1998, this Court. April pendency tion was issued during On Calderon, (“Cooper No. 92-CV-427 Case of appeal of his to the Ninth Circuit Court I”). from this denial of his Appeals Court’s petition, Petitioner first federal habeas 11, 1994, Petitioner filed his August On of petition filed a for writ certiorari second in petition corpus for writ of habeas first in Supreme Court United States I, Cooper 92-CV-427. On this Court. regarding this case number 97-8837 12, 1996, an Petitioner filed amended April petition his federal Court’s denial of first corpus in this petition writ of habeas for 26, corpus. writ of habeas On June for I, 92-CV-427, No. Cooper Doc. Court. 1998, Supreme the United States Court 20, 1997, Petitioner filed a 123. On June Calderon, Cooper v. petition. denied for writ of habeas supplemental petition 2392, 963, 118 S.Ct. L.Ed.2d 524 U.S. 25, August this On corpus with Court. (1998). 1997, evidentiary hearing, this following peti- first Court federal denied 30, 1998, April Petitioner filed a sec On I, corpus. Cooper tion for writ of habeas federal for writ of habeas petition ond 92-CV-427, September On Doc. No. 165. v. corpus Cooper See Cal this Court. 16, 1997, filed a motion and Petitioner ”). deron, (“Cooper II Case No. 98-CV-818 in this objections entry judgment 1998, this dismissed On June Court I, 92-CV-427, Doc. No. Cooper Court. petition for writ ha- Petitioner’s second motion 202. The Court denied Petitioner’s jurisdiction corpus lack of and as beas I, Cooper 92-CV- on November 1997. impermissibly successive under U.S.C. No. 208. Doc. 2244(b)(1). II, 98-CV-818, Doc. Cooper 4,1996, filed his first April On 25, 1998, On June Petitioner filed No. 3. for writ habeas petitions of seven state to alter or amend motion this Court corpus Supreme Court. in the California dismissing pe his federal judgment second The re No. S052741. Cooper, In Case corpus. This tition for writ of habeas denied the first Supreme California Court motion on June 1998. denied the February corpus writ of habeas petition for II, 98-CV-818, Doc. No. 6. Cooper (Answer, Ex. 23, 1998, Petitioner filed On December 12, 1997, Petitioner filed On March third for writ habeas petition state in the direct motion to recall remittitur corpus Supreme the California Court. Supreme Court. appeal in the California Cooper, No. S075527. On re Case People Cooper, Case No. S004687. v. a supple- Petitioner filed March Petition Supreme California Court denied corpus petition for writ of habeas mental er’s to recall the remittitur motion Supreme in his in the California Court (Answer, 26, 1997. Ex. March In proceeding. re Coo- third state habeas 26, 1997, On March 12, filed Case No. S075527. per, Petitioner September On 1999, petition habeas while his third state petition for writ of habeas his second state 890 pending,

was still Petitioner denying filed a fourth stay his motion to the mandate corpus petition state habeas in the Califor- pending filing petition of a for writ of nia Supreme Cooper, Court. In re Case request certiorari and for en banc review 14, 1999, April No. S077408. On the Cali- regarding the denial of authorization to file Supreme fornia Court denied Petitioner’s a second federal petition. Cooper habeas third and fourth petitions state for writ of Calderon, v. Case No. 98-99023. (Answer, Exs.5, corpus. habeas On 18, 2002, April On Petitioner filed his 7, 1999, May Petitioner filed a motion for petition fourth for writ of certiorari in the rulings regarding clarification of his third United Supreme States Court in num- case petition state for writ of corpus. habeas ber 01-10742. petition This fourth chal- May 12, The motion was denied on 1999. lenged the Ninth Circuit’s affirmance of (Answer, Ex. this Court’s denial of Petitioner’s first fed- 9, 1999, July On Petitioner filed a third petition eral for writ corpus. of habeas petition for writ of certiorari in the United Cooper, 7, See 255 F.3d 1104. On October States in Supreme Court case number 99- 2002, the United Supreme States Court 5303, challenging the denial of his third petition. Calderon, denied the Cooper v. petition by state habeas the California Su- 861, 238, 537 U.S. 123 S.Ct. 154 L.Ed.2d preme Court. Supreme The United States (2002). 100 petition 4, Court denied the on October 11, 2003, February On Petitioner filed Cooper California, 897, 1999. v. 528 U.S. petition another for writ corpus of habeas 229, (1999). 120 S.Ct. 145 L.Ed.2d 192 Supreme the United States Court in The Ninth Circuit affirmed the Court’s case number Cooper, 02-9051. See 274 denial of Petitioner’s first federal habeas F.3d at 1272. The Supreme United States petition 9, on July 2001. Cooper v. Calder Court denied the petition additional on, (9th Cir.2001), 255 F.3d 1104 cert. de writ of corpus 21, habeas on April nied, 861, 238, 537 U.S. 123 S.Ct. 976, Cooper, 1793, re 538 U.S. 123 S.Ct. (2002). 29, 2001, L.Ed.2d 100 August On (2003). 155 L.Ed.2d 696 filed a petition for rehearing February 14, 2003, On the Ninth Circuit and rehearing 8, en banc. January On denied Petitioner’s authorization 2002, to file a the Ninth petition. Circuit denied the third federal petition for writ of federal 21, 2001, On December the Ninth Circuit petition for writ of corpus habeas denied request Petitioner’s for authoriza Calderon, District Court. Cooper v. Case tion to file a petition second for writ of 7, 2003, No. 99-71430. April On the Ninth corpus. Calderon, habeas Cooper v. Circuit denied petition Petitioner’s for re- 1270(9th Cir.2001). 4, F.3d February On hearing and rehearing en banc from the 2002, Petitioner a petition filed for rehear denial of authorization to file a third feder- ing and rehearing en banc from the denial petition al for writ of corpus. habeas On of authorization to petition. file a second February Petitioner filed a fifth The Ninth Circuit denied Petitioner’s re petition for writ of certiorari in the United 18, quest on October 2002. Cooper v. Cal deron, Supreme States (9th Court case number 02- Cir.2002), 308 F.3d 1020 cert. 9050, denied, regarding the Ninth Circuit’s denial U.S. 123 S.Ct. (2003). L.Ed.2d 677 authorization to file a On November second federal 2002, the Ninth petition Circuit denied habeas April this Court. On motion to reconsider or vacate the order Supreme United States

891 People v. Coo- Court. Calderon, Supreme v. California Cooper petition. the denied 22, October On 1793, No. S004687. 155 L.Ed.2d Case 984, per, S.Ct. 123 538 U.S. denied Supreme Court (2003). 2003, the California 677 12.) (Answer, Ex. motion. the his 2003, filed 15, Petitioner May On in corpus of habeas writ for petition second 2003, 17, California the December On case in Supreme Court States the United of an execution date issued Superior Court Su States The United 02-10760. number 2004.(See No. 10, Case Cal.Crim. February on Octo petition the denied preme Court 2003.) 17, Dec. filed 808, 540 U.S. 6, Cooper, In re 2003. ber 2004, his 20, Petitioner filed January On (2003). 92, 157 L.Ed.2d 254 124 S.Ct. in of certiorari for writ petition sixth County Diego 2003, 13, the San June On Court, in case Supreme States United petition Petitioner’s denied Superior Court 03-8513, the Califor- challenging number (Answer, Ex. corpus. habeas for writ fifth of his denial Court’s Supreme nia 2002, filed a 22, 8.) Petitioner October On and corpus of habeas for writ petition state mitochon- seeking post-conviction motion v. stay. Cooper Cali- for application a an 16, On June of hairs. testing DNA drial Supreme Court States The United fornia post- for filed a motion 2003, Petitioner for application petition denied evi- to show of a T-shirt testing conviction 9, Cooper v. February 2004. stay a per- enforcement by law tampering dence 1197, 1172, 124 S.Ct. California, U.S. 9.) (Answer, The Honorable Ex. sonnel. (2004). L.Ed.2d Diego the San Kennedy of H. William evidentiary an held Court County Superior a held this Court January On of evidence claim hearing on Petitioner’s ex- to set an conference status telephonic mitochondrial request for tampering allow for to briefing schedule pedited 23-25, Fol- testing on June DNA to prior review meaningful appellate evidentiary post-conviction this lowing counsel Petitioner’s execution. impending County Superior Diego the San hearing, not be filings would that the represented relating motions Court denied of California. District Southern done post-conviction tampering to evidence parties Nevertheless, urged the Court (Answer, Ex. testing. DNA manner expeditious an proceed his 2003, filed 24, Petitioner On June review reasoned orderly and permit an cor- habeas for writ petition fifth state the issues. On Court. Supreme in the California pus a 2004, filed 2, Petitioner February On Supreme 2003, 22, the California October States District in the United complaint (Answer, Ex. petition. denied the Court of Califor- District Northern for the Court a 2003, filed Petitioner July On 1983, seeking § 42 U.S.C. nia, pursuant in the Califor- of mandate for writ petition order, preliminary restraining temporary the denial Court, relating to nia Supreme discovery on a expedited Coo- injunction, DNA motion. post-conviction injec- lethal Court, use of No. S117675. that California’s Case claim Superior per v. Coo- denied Amendment. Supreme Eighth Court violates California tion (Answer, Ex. 22, 2003. On Rimmer, No. 04-436. on October motion Case v. per Jeremy the Honorable February Judge, District States United Fogel, filed September On the motions denying order issued remittitur to recall motion third 892

temporary order, restraining preliminary Petitioner authorization to file his third injunction, and expedited discovery. On habeas corpus petition with this Court. 8, 2004, February the Ninth panel Circuit Cooper Woodford, (9th v. 358 F.3d 1117 affirmed district order. Cooper court’s Cir.2004). Rimmer, (9th Cir.2004). v. 358 F.3d 655 19, 2004, On March Respondent filed a 2, 2004, On February Petitioner filed his petition for writ certiorari with the sixth petition for writ of corpus habeas and United Supreme Court, States challenging an emergency application stay for a jurisdiction of the en banc court to execution in Supreme the California Court. grant authorization to file a pe- successive In re Cooper, Case No. S122389. The tition in Court. this This petition for cer- Supreme California Court peti- denied the tiorari was 17, denied on May 2004. tion 5, on the February merits on 2004. Goughnour v. Cooper, No. Case 03-1328. (Answer, Ex. 2, 2004, On March the mandate of the 5, February 2004, On Petitioner filed a Ninth Circuit issued to regard- Court this sixth volume exhibits with the California ing the authorization to file a successive Supreme in support Court of his sixth habeas petition. 2, April 2004, On Peti- state petition habeas after the denial of his tioner filed his petition third for writ of sixth petition. 6, 2004, On February habeas corpus with this Court. Between Supreme California Court deemed the sub- 2, April April 1, 2005, 2004 and the Court mission a seventh state habeas corpus peti- ordered mitochondrial DNA testing, tion. Cooper, re No. Case S122507. EDTA testing, heard testimony from for- Supreme California Court denied the ty-two witnesses, and reviewed numerous seventh state petition habeas on the merits exhibits briefing. and extensive On April 9, on February (Answer, Ex. 22, 2005, the Court heard final argument 6, On February 2004, Petitioner filed an on the petition successive and denied the application for authorization file a suc- petition merits, on the and alternatively, petition cessive for writ of habeas corpus denied the petition procedural on grounds in the Ninth Circuit of Appeals. as reflected in this order. Cooper Woodford, v. Case No. 04-70578. 8, 2004, On February a three-judge panel FACTS denied application Petitioner’s for authori- Petitioner was sentenced to death for zation to file petition. successive On father, “massacre of a mother, daugh- 7, 2004, February Petitioner filed his sev- ter, and houseguest in the sanctity of their enth petition for writ of certiorari with the home, and the attempted murder of the United Supreme States Court. Cooper v. son, young the only person to survive.” California, 03-8773. The United States Cooper, 53 Cal.3d at Cal.Rptr. 90, Supreme Court denied petition Petitioner’s 809 P.2d jury 865. “The Cooper convicted application stay February of hacking to death Franklyn Douglas 2004. Cooper California, v. 540 U.S. Ryen (Doug) Peggy Ryen, their 10- (2004). S.Ct. 157 L.Ed.2d 1225 year-old daughter Jessica, On and an 11- February the Ninth Circuit sua year-old sponte agreed houseguest, to hear Christopher applica- Hughes (Chris), tion en banc. Cooper v. inside Woodford, Ryen home near the (9th Cir.2004). F.3d 1019 February On California (CIM), Institute for Men a state 2004, the en banc Ninth granted prison Circuit Eight-year-old Chino. Joshua Roger Larry Lease owned injured, severely brothers (Josh), although Ryen house”) for (“hideout Lang and Kermit this execution days before Two survived. entering the days before two-and-one-half escaped innocent, had defendant at 795- 53 Cal.3d Cooper, Ryen house. 794, at 281 Cooper, 53 Cal.3d from CIM.” 865; 90, Coo P.2d 801, Cal.Rptr. 809 281 90, The California P.2d 865. 809 Cal.Rptr. I, 1107-08; Cooper 92- at F.3d per, 255 volume the “sheer noted Supreme Court (see 2-3; 25, at CV-427, 1997 Order Aug. is over evidence consistency of the 2967-70, 2959-62, RT also 87 837, 281 at 53 Cal.3d Cooper, whelming.” Ryen door whs next house hideout P.2d 865. Cal.Rptr. 809 (4/22/05 Re away. house, just yards Hearing Evidentiary Transcript of porters’ on June prison CIM escaping from After (“HRT”) 60; 53 Cal.3d Cooper, hid in a vacant house 865.); Cooper, 255 P.2d Cal.Rptr. 92-CV-427, I, Aug. 1107; Cooper F.3d at 2, 22, 23. 25, 1997 Order At the attacks, time of these Petitioner 809. Pennsylvania, Petitioner kid- an escapee CIM, was of both napped, where he raped, assaulted, and stole a car escaped by 2, 1983, foot on June and from from a teenage who girl interrupted him custody in Pennsylvania. Cooper, 53 while he was committing yet another resi- 876, at Cal.3d 34, 281 Cal.Rptr. 809 P.2d dential burglary. Cooper, 53 Cal.3d A-386448). 865; 2004, 44, No. Fol- Ex. Case P.2d Coo- Cal.Rptr. conviction, lowing burglary his I, 92-CV-427, Aug. 1997 Order per designated April to CIM on kill the dur- He victim threatened David using the false name of Traut- still cus- escaped He from the attack. had ing June he was transferred to a man. On times so tody Pennsylvania numerous minimum-security portion prison twelfth escape his from CIM was his (85 subsequently escaped. which he I, 92-CV-427, Aug. escape. Cooper (“RT”)3 Reporters’ Transcript Trial 2596- at 22. Prior to arrival 1997 Order California, arrest- Petitioner had also been 2,1983 Petitioner arrived at the On June ed, times of charged, and convicted several testimony own hideout house. Petitioner’s Cooper, Cal.3d theft-related offenses. 53 evidence, including physical finger- 90, 841, P.2d Cal.Rptr. 281 809 at confirmed that Petitioner was prints, I, 92-CV-427, 25, 865; Aug. Cooper Ryen hideout next to the house house (87 at 25. Order RT time the murders. 2959- at the 62, 2967-70, The hideout house was arrested, California, the Ryen hill and nearest down the charged, prison to state sentenced house. in Los burglary of residential two counts weapons, murder a hatchet One of the I, 53 County. Cooper Cal.3d Angeles hair, blood and human covered with dried 90, Peti Cal.Rptr. 809 P.2d 865. hideout house where Peti- came identity, background, about his tioner lied (87 3072; RT hid. RT tioner history false by using criminal identified hatchet Witnesses (92-CV-427, Trautman. name David missing one from the hideout house as the (87 RT killing. filed after Supplemental Third NOL Jan. argument original its final habeas Transcripts from in this order in Reporters’

3. The lodged designated by April are a “RT” and are trial photos Respondent used the the Court. (90 RT hairs. human blood by dried on hatchet discovered A local citizen consistent hairs 3797.) Some Road, English the side June (96 RT Ryen. and Josh Doug those Ryen from the leading road only paved Root, performed who 5015-16.) Irving Dr. (89 RT the immediate out home area.^ hatchet concluded autopsies, cov- 3791.) hatchet 3519; 90 RT wounds chopping inflicted have could covered bloodstains; head was its by ered (90 suffered the victims. RT employees two of the owner of the hideout house, Post-conviction DNA testing Richard Perry Sibbitt and confirmed Burc- ham, discovered the sheath the blood came from the hatchet the murder vic- lying on the floor near the bedroom where tims. (Supplemental Physical DOJ Evi- Petitioner slept. The bedroom had been dence Exam Report dated Sept. previously occupied by Bilbia, Kathleen The hatchet had been kept in a sheath who lived in (86 the hideout May. house in fireplace RT (86 in the hideout Bilbia house. recalled seeing byit the fireplace RT when 2685, 2715, 2878-79, 3004.) she was cleaning On June (86 house. RT The sheath was not

on the floor when Bilbia vacated the room. (86 2677, 3004-05.) RT 3957.) A (91 RT injuries. remaining hunting knifes, an eleven-inch Buck buck missing missing fitting from one strap were knife, picks ice 2860; Bilbia (86 by RT 3002- RT floor house. found was hideout knives have inflicted 04.) knife hunting could The

bedroom where closet slept. Ryen Mrs. was feet, five eight inches tall (87 3073.) RT weighed (90 140 pounds. 3924.) RT A series three chopping

The victims died wounds to from chop- numerous right side ping Ryen’s of Mrs. stabbing injuries head from a hatchet. con- (90 3835.) RT sistent with Doug Ryen having been suffered at administered thirty-seven least while (90 she (90 was separate standing. 3874.) RT wounds. 3835-71.) RT Two Two separate chopping chop injuries nearly wounds formed an (90 fractured upside his 3838-39.) skull. RT down (90 “V” on her forehead. RT 3872.) chop Five wounds to Ryen’s Mr. skull were in “tight a pattern,” indicating his triangular One defect skull, in her in- skull was stationary when the blows were death, flicted before was consistent with (90 3841.) delivered. RT ap- blows having been made tip of the hatch- pear to have been administered rapid (90 3874-75.) et. RT Ryen Mrs. sus- succession, within a two, second or as Mr. tained chopping wound at the midline of Ryen was kneeling by the side of the bed. (90 the back of her 3876.) head. RT Mrs. (90 3841.) RT One blow administered to Ryen had a defensive wound to her right Mr. Ryen’s skull was consistent being (90 3878.) thumb. RT Ryen Mrs. also struck by the blunt hatchet, side of a caus- suffered wounds chest, to her stomach, ing a depressed skull fracture, where the breast, (90 and neck 3882-94.) areas. RT bone pushed (90 into his head. RT Jessica Ryen forty-six suffered separate 3849.) identified wounds, consisting of a combina- Mr. Ryen sustained numerous stabbing tion of chopping and stabbing or incision (90 injuries. 3852-68.) RT Mr. Ryen’s (90 wounds. 3896-23.) RT Jessica was right middle finger was amputated by a feet, four tall, eleven inches and weighed (90 chopping 3846.) blow. RT His sev- eighty (90 pounds. 3924.) RT Two finger ered was on the floor inside the wounds were single blow that Ryen (90 bedroom closet. RT formed a “V” in (90 her forehead. RT He sustained another chopping injury to 3896-97.) A chopping blow to the right his right (90 ring finger. 3846.) RT An- side of her nose and cheek fractured her other chop wound cut clear through the jaw. A chopping injury to the top of Jessi- bone (90 his right 3837.) forearm. RT ca’s head (90 resulted in a fracture. RT One stab penetrated wound his sternum entering (90 his heart. RT 3853-55.) One stab punctured wound lung and cut A one wound to Jessica’s lower left back was (90 of his ribs. RT There was a consistent with the knife being drawn slicing injury to right side of Mr. across her back and then inserted into her Ryen’s cheek. died, Before he Mr. Ryen back. The bruising associated with the was stabbed on the left neck, side of his wound showed that it was one of the earli- severing his carotid artery and cutting his er wounds (90 suffered Jessica. RT (90 trachea. RT Ryen Mr. also 3908-09.) Jessica suffered a stab wound sustained deep incisions into his right to her neck. The wound in resulted mas- thigh, his left leg and his area. buttocks sive bleeding. Unconsciousness from the (90 3866, 3868.) RT wound would have occurred as little as Ryen Peggy suffered thirty-two sepa- thirty sixty seconds, and would have rate (90 identified 3872-96.) wounds. RT been fatal in a (90 couple of minutes. RT nail, an or pick, ice with consistent to Jessica’s wounds 3903-04.) stab Three were injuries These used. having been awl each oth- proximity in close were chest inwas while Jessica inflicted primarily delivered were the wounds er, suggesting (90 RT 3910- died. she in which position were wounds succession. rapid delivered having been with consistent in which position was in inside Jessica found while Jessica were burrs Plant (90 RT were similar died. she nightgown Ryen’s the closet inside blanket on burrs twenty grouping suffered Jessica 7678-81), (106 RT slept, where chest. her injuries carving separate between vegetation burrs bleeding, slight associated Some house, Ryen and the house hideout Jessica after occurred apparently most but car. injuries were bleeding. The stopped had Hughes twenty-five Chris sepa- suffered A chopping right wound to his wrist went (90 rate identifiable RT wounds. through forearm, the bone of his almost feet, tall, (90 Chris was four eleven inches severing his hand from his wrist. RT (90 weighed eighty-six pounds. RT A chopping amputat- wound almost per 3181.) received 3179, Chris had 3177, the leaving finger, second right his ed the spend to parents his from only a small mission the hand to attached finger 3188.) (88 RT 3926.) Ryens. also the night Chris (90 with RT skin. of portion to to drive right residence to his Blade the injury They chopping left a suffered p.m. 9:00 with around consistent sometime injuries Ryen home The the hand. Larry of side right 3182.) neighbor, the (88 Ryens’ hand The his RT placing Chris his head. protect returning to truck an effort Lease, Ryen the head in saw his (86 3926-27). (90 p.m. 9:30 RT 9:00 and between sometime Josh, they 2780.) Except for 2757-58, RT chopping parallel six suffered Chris Cooper, again. alive never seen his were of side the down fractures with wounds 90, P.2d Cal.Rptr. 794, 281 the Cal.3d to back front from the head, extending bleeding little was There of his head. chopping of the series associated 1983, 5, Chris’ morning, June next The or dying was

wounds, that Chris indicating con- Hughes, became mother, Ann Mary adminis- they were when already dead (88 home. not come he did when cerned 3927-28.) a suffered (90 Chris RT tered. resi- Ryen 3189-90.) the She called RT fractured wound incision chopping or only heard times, of but a number dence (90 RT his nose. cut and facial bones the 3190.) (88 Shortly after RT busy signals. to injury chopping a 3929.) suffered Chris Ryen to the went a.m., Hughes Mrs. 9:00 his head, to stab wounds and his top of the barn 3190.) noted the (88 She RT home. (91 RT 3932- back, arms. chest, head the look like it did closed was 3939-40.) post- two suffered Chris 36, the saw only She had been fed. horses area, armpit right his wounds mortem (88 RT 3190- house. at the truck Ryens’ (91 the knife. of action “pushing” from 91.) 3943-44.) RT to a.m., Hughes went Mr. 11:30 At about hatchet wound included injuries Josh’s (88 RT investigate. home Ryen the his head, wound to a stab his top to the truck, did but 3191.) Ryen the He noticed left his wound near throat, a hatchet 3195, (88 RT wagon. their station not see 706A-H, 478-81, (Trial Exs. ear. kitchen to the 3202-03.) went Hughes Mr. Root, 3354-56.) who Dr. 727; RT door, it but inside, the tried door, looked inju- the believed autopsies, the performed habit Ryens were locked. quickly, with- inflicted have been could ries they when unlocked doors leaving their (91 the victims. for each of minute in one contin- (88 He RT home. were at victim 3957-58.) opined each He RT until house outside the around ued being after minutes died within have would leading door sliding-glass the he reached 3959-61.) All of (91 RT attacked. (88 RT bedroom. master Ryen into of food amount a moderate had victims sliding glass inside looked He proba- that death stomach, indicating Chris, son, his body of saw hours door and to three one about bly occurred 3961-62.) Peggy Doug and (91 bodies RT the unclothed last. they had eaten after floor laying Ryen and Josh Ryen, murders, Ryens Prior (88 RT and Chris. mother between annual barbe- attended Hughes Chris see, he could people the four Of home cue, on June (88 RT alive. be appeared only Josh Serranos, a few miles in Los Blade George (88 RT in Chino. Ryen home (95 frantically open Mr. tried Hughes up by Josh woke a scream. RT 4955- (88 3200, 3203.) 56.) sliding hall, RT door. Josh He walked down the stopping up Hughes looked as Mr. shook sliding laundry room. Josh saw lying Jessica glass Hughes door. Mr. asked if right by Josh he hallway. the bedroom door in the (88 3199.) (95 4956-58.) open could RT Jessica, door. Mr. RT When he saw he door, Hughes rushed to the kitchen kicked saw a or something” by “shadow bath- (88 in, 3204.) it and entered. RT As he room. It was dark. Josh could not see bedroom, approached the master he found what the shadow or it doing. was what was (95 4969-70.) hallway, Jessica on the floor also RT There were no sounds (88 3205.) apparently dead. RT parents from his and Josh could not see bedroom, (95 4958-59.) Mr. Hughes body touched the them. RT (88 It his son. was cold and stiff. RT The thing next he remembered was 3205.) Hughes Mr. asked Josh who had “[j]ust waking up” surrounded the bod- (88 3205.) done it. RT appeared Josh (95 4959-62.) ies of his parents. RT stunned; he tried to talk but only could memory Josh’s first after waking up was (88 3205-06.) lips. move RT Hughes Mr. asking him if he open could Mr. Hughes tried to a telephone use in the sliding glass door to the master bed- (95 house, 4962.) but it did not work. He drove room. RT house, (88 a neighbor’s seeking help. Bilbia, Kathleen employee Larry 3206-07.) police RT shortly. The arrived Lease, living had been in the hideout (88 3211-12.) Chris, RT Doug, Peggy, in May, house and she had used the bed- Jessica were dead. The first three were in (the room slept Petitioner later “Bilbia the master bedroom Jessica was on bedroom”). (86 2665.) RT She out moved hallway the floor in the that leads into the during May. By May 27, the house most (88 3214-18.) master RT bedroom. Josh (86 of her belongings had been removed. position. his side in a fetal His RT May On 30 and June Ms. eyes open, but he was unable to Bilbia vacuumed portions and cleaned (88 speak or RT move. He house, including the bathroom she had difficulty had breathing. Josh’s neck sinks, used. She countertop, cleaned the wound bleeding was not at the time and showers, and shower doors in the Bilbia paramedics unsuccessfully tried to find a (86 2666-68.) bathroom. RT pulse Josh, symptoms consistent with slept the closet of the bedroom nearest (88 3313-17.) severe shock. RT Josh was garage where sleep. Ms. Bilbia used to by helicopter flown to Loma Linda Univer- (86 2693-94; 5284-85.) RT 97 RT (88 sity Hospital. RT window the fireplace pro- hideout house memory Josh a limited (86 had of the at- Ryen vided view of the house. RT During tack. night murder, 2693-94; 97 RT the hideout Williams and Diane telephones: had two hideout house The they help, but for their and asked in house another in the Bilbia bedroom one (97 5404-07; RT 2669-70.) RT (86 declined. RT kitchen. testi- and Ms. Jackson’s Telephone records Jackson called Yolanda that he admitted mony showed that calls two were made room during eighteen months she lived (86 there. RT from the hideout Angeles house the Los San Bernardino County Sheriffs Crime Lab criminalist telephone area of Yolanda number Jack Gregonis Daniel performed an analysis son. first call lasted 110 minutes the saliva on cigarette butt which was beginning a.m., on June 3 12:17 and the consistent with a non-secreter such as Pe- call second lasted beginning four minutes (93 titioner. Only RT twenty (87 at 2:26 a.m. morning. the same RT percent of population are non-se- 2898-2900, 2790; 2794; 86 RT 86 RT (94 4707). cretors. RT A belt belonging 2790.) Two calls were also made from the Lang to Mrs. was found in the closet of hideout house to Diane Williams in Pitts (87 3076.) Bilbia bedroom. RT The size burgh, Pennsylvania. The first call lasted 30 belt contained two hand-made holes in beginning three minutes on June 3 at 11:46 it in addition the five to manufactured a.m., and the thirty-four second lasted (87 holes with 2973, which it came. RT minutes beginning on June 4 at p.m. 7:53 2994; 77.) Trial Ex. Petitioner’s waist was (87 82.) 2896-2901; RT Ex. Trial Petition approximately thirty-two in inches June er admitted that he Diane called Williams 1983. He was pants issued size-32 p.m. 4, 1983, about 8 on Saturday, June (98 5562-63.) CIM. RT (97 5435.) night of the murders. RT fingerprint was positively Diane Williams told Petitioner she did not jar identified on a of Coffee Mate in the (97 any money have for him. RT 5435- (87 kitchen of the hideout house. RT 36.) Petitioner decided leave the hide 2960.) A footprint was found on the Bilbia out house phone after the call. “This final sill, bathroom shower separating the inside only call was or hour so before the of the shower from the rest of the bath- Ryens and Chris Hughes left the Blade (87 2943-44.) room. RT The shower foot- house for unsuspected their rendezvous print was determined to have been left with death.” Cooper, 796, 53 Cal.3d at (87 2961-62.) Petitioner. RT Cal.Rptr. 809 P.2d tes Police recovered a blanket with a semen tified put that he prison on his clothes stain that part was bedding including prison-issued shoes, tennis camp closet of the Bilbia bedroom. Petitioner’s jacket, and some clothes he found at the genetic profile was consistent with hav- (97 5436.) hideout house. put RT He ing deposited the semen stain on the blan- other clothes he had bag into a he (93 was 4459-65.) ket. RT A bloodstained carrying right before he left the hideout khaki green rug button found on the house, (99 (87 including prison 3072-73; blue shirt. Bilbia bedroom. RT 5852.) 97.) Trial RT Exs. It was identical appearance to jackets buttons on field in- A search after the murders of the hide- CIM, mates wore at including one Peti- out house portion located a Viceroy of a tioner was wearing seen shortly after his cigarette (J-20) butt in the headboard in (85 2417.) escape. RT coiled, A (87 the Bilbia bedroom. RT rope bloodstained was found in the Bilbia Lang’s Mr. Viceroy cigarettes were miss- (86 bedroom closet. RT (86 ing from the kitchen RT drawer. rope was similar rope kept elsewhere and, Ms. Bilbia did not smoke the hideout house and surrounding proper- her knowledge, (86 no one in her ty. smoked bed- RT luminol, a substance used detect Bernardino A from the San criminalist to the naked of blood not visible laboratory sprayed presence crime County sheriffs (87 3079.) positive RT A reaction eye. house of the hideout various areas consisting “glow” of an even ranging from testified that he issued Petitioner a pair of about two feet to five feet above the floor (85 Pro-Keds Dude tennis shoes. RT was obtained on the shower walls in the 2510-11.) (87 3080.) Bilbia bathroom. RT There The Stride Rite Corporation sold Pro- four positive also reactions to the Keds Dude tennis to state shoes and feder- luminol on the rug the hallway leading al governments for use in institutions such to the Bilbia appeared bedroom that to be (86 2620-24.) as CIM. RT All “Dude” (87 3081.) foot impressions. RT Other shoes tennis contain the same diamond positive reactions were obtained in the pattern. sole general merchandise (87 bedroom closet and bathroom sink. manager for Stride testified Rite that this 3082-83.) RT The reactions did not prove pattern is not found other shoe that presence blood, but were “an indica- company nor, manufactures to his (87 tion that it be could blood.” RT knowledge, (86 on any other shoe. RT Investigators recovered samples hair trial, At showing contracts from the sink and debris from the shower purchase of the Dude tennis shoes CIM (87 drain. RT Some hair in the (See were admitted into evidence. Trial bathroom sink trap was matted ap- 84-88.). Ex. peared to have been long there a time. (96 RT hair Other was not matted Most the blood at the scene of the microscopic examination of that hair crime was consistent with having come revealed characteristics similar to Jessica’s (92 from one or more of the victims. RT (96 5017-18.) head hair. RT A hair re- 4401-25.) a Significantly, drop of blood moved from the bathroom shower had (item A-41) found hallway on the wall characteristics similar to Doug Ryen’s opposite the Ryens’ door to the master (96 5017.) head hair. RT belonged bedroom to an African-American

Investigators male, found significant three which is with consistent Petitioner. shoe-print impressions: partial (89 a sole im- 3373.) 3511-12; RT 88 RT Crime pression aon spa cover Ryen outside the deputies scene recovered A-41 at 12:25 (88 3363), master bedroom RT partial a.m. on June shortly after the bloody print shoe on a Ryen sheet on the police (89 arrived at the crime scene. RT (89 bedroom 3506), RT waterbed and a 3511-12.) nearly complete shoe-print impression in Gregonis Criminalist examined this drop game (87 the room of the hideout house. of blood and concluded from electrophoret- 2925.) RT All three appeared to come ic testing that the blood could not have (88 from tennis 3364-65; shoes. RT any (93 come from of the victims. RT 3504-07.) RT 4426.) upon Based results obtained for partial Two prints shoe nearly one enzymes, Gregonis several Mr. also con- complete shoe print Ryens’ found the that drop cluded the was consistent with house were consistent both with Petition- (93 4433, 4426-29.) Petitioner’s blood. RT er’s size and the Pro-Keds shoes issued at of characteristics, Because various the CIM. Petitioner testified that size shoe blood was from an African-American per- 10.(98 was between a and a RT 5532- (93 4424.) son such as Petitioner. RT Taylor, James CIM, an inmate at met Petitioner when both Gregonis Mr. Blake, medium se- and Dr. Edward (85 2508-09.) curity at CIM. RT Taylor expert employed by defense, the further luminol also a small There was limited found. of Because A-41. tested up rope, to the leading produced Dr. sample, trail remaining of amount with the bloodstained consistent defense was that which tests performed Blake along the drive- excluding having dragged rope of been chance the best had believed 3560-61.) (105 (89 RT way. RT donor. possible aas Petitioner 7411-12.) was cho- transferring test The Ryen on the sink A luminol test chance of it had an excellent sen because indicating positive, was bathroom master the do- if was not he excluding Petitioner The nature presence of blood. However, test the transferrin A-41. nor of blood consistent with luminol result was genetic with Petitioner’s consistent was in the sink with water having been diluted test indicated transferrin The profile. to- having down blood flowed and diluted person of A-41 was left person who drain, had if as someone the sink ward (105 RT heritage. African-American the sink. their hands in blood off washed test excluded The transferrin 3558-60.) (89 pres- Tests revealed RT being Hughes from Ryens or Chris shower and bathroom blood ence of 7404-05.) (105 A-41. RT the source of house, and found hair of the hideout sink (2-1) A-41 also typeA peptidas The sink was consistent in the bathroom Petition- typeA peptidase matched the (96 RT Doug Ryen. that of Jessica (2-1) A-41 also type A peptidas The er. 5017-18.) A-41 deposited who person meant from the was Ryens’ missing vehicle The (105 RT ancestry.” “person of black was a were discovered house when bodies also of A-41 type haptoglobin The The in Long found Beach. but was later of African-American person indicated a the front tobacco police found loose 7409-10.) (105 addi- RT heritage. Possible and floorboard. seat passenger possi- aas tests included tional front on the observed stains were blood (105 RT donor. ble jam. driver’s side-door seat passenger Blake, to exclude Dr. able expert, hot- to have been appear The car did not A-41, was but source of as the 4217-21.) (92 4205-10, RT wired. having come A-41 as to exclude able (105 RT 7431- Hispanic. recovered or butts were cigarette a Caucasian Two (92 con- 32.) testing DNA RT wagon. Post-conviction from the station A- of (V-12) is the source 4290.) firmed that Petitioner cigarette A hand-rolled billion). (one (Supplemental in 310 by the vertical formed found the crevice dat- Report Evidence Exam Physical pas- DOJ the front horizontal portions and 4287.) (92 loose RT Some

senger seat. free tobacco, provided that is “Role-Rite” testing established also Electrophoretic retail, available at and not inmates to CIM in the Bilbia rope found on the the blood right of just to the was on the floorboard from one have could come bedroom closet (92 4287-90, seat. RT passenger front The but not Petitioner. of the victims tobacco, 5067.) identi- loose-leaf Similar consistent rope bloodstains on Role-Rite, in the was found being fied as from either mixture of blood being Peti- house the hideout where bedroom Peggy or from Doug Ryen, Jessica 5065.) (96 RT San 4404-05.) stayed. had tioner (93 There RT Doug Ryen. Lab County Sheriffs Crime Bernardino area luminol reaction positive awas visually Craig Ogino examined was Criminalist rope Ryen driveway where (one microscopically samples the two of the rette butts were Petitioner’s in 19 loose tobacco and the tobacco million). from the billion and one in 110 (Supple- cigarette. hand-rolled Each sample was Physical mental DOJ Evidence Exam Re- consistent with each other and with Role- 2002.) port Sept. dated (96 5069.) addition, Rite tobacco. RT Several hairs were recovered from the Aubrey Evelyn, manager with the com- vehicle and two criminalists microscopical- pany tobacco, that manufactures Role-Rite ly compared the hairs with Petitioner’s also testified that the tobacco found in the hair. One believed that one of the hairs Ryen car was consistent with Role-Rite. (V-19) probably came from an African- (95 4898.) RT A witness testified that American, and that enough “there was cigarettes Petitioner smoked hand-rolled similarity ... between the hairs from Mr. (85 using Role-Rite tobacco. RT 2505- Cooper and the unknown hair that I felt 06.) money Petitioner had no in his prison the unknown hair was consistent with com- May account during and June of 1983 with (95 4833.) ing from Mr. Cooper.” RT purchase which commercially cig- made second criminalist also found it was consis- (85 RT arettes. A manufactured tent with Petitioner’s hair. Both believed (V-17) cigarette butt was also found in the (95 likely it was most pubic hair. RT (92 front passenger seat area. RT 4828-33.) A hair fragment discovered in the car Plant burrs were recovered from the was consistent with pubic hair Ryen wagon. station The burrs were simi- spot and a of blood found in the car could plant lar to burrs found on the inside of have come from one of the victims but not Ryen’s nightgown Jessica and numerous (95 4828-33.) from Petitioner. RT Lumi- plant burrs found on the blanket inside the testing nol resulted in very light positive Bilbia part closet which was bedding of the car, in portions reactions some of (106 7678-81.) found the closet. RT which were consistent with the light pres- The burrs were also similar in appearance (92 4293-97.) ence of blood. RT One of parts to the burrs from vegetation sam- (W-3) the stains on the jamb driver’s door ples taken from the area between the blood, was found to be human type ABO Ryen home and the AB, hideout house. All of consistent with being the blood of macroscopieally burrs were Peggy Jessica, and micro- but inconsistent with (106 (93 scopically 7677-81, similar. RT type, Petitioner’s ABO which type is A. expert defense, RT An for the Dr. John Thornton, concluded the burrs were all the Saliva on cigarette tests the two in butts type, same known as Medicago. He Ryen station wagon were consistent agreed that the burrs from the blanket in with cigarettes both having been smoked the Bilbia “virtually closet were identical” (93 by a non-secretor such as Petitioner. to the two burrs found on the inside of 4472-77.) Only RT twenty percent of the (105 nightgown. 7521-22, Jessica’s RT (94 population are non-secretors. RT 7541-43.) Dr. Thornton agreed that Jessi- The type ABO blood person ca’s killer had V-17, nightgown up moved her who on smoked ciga- manufactured butt, body her after she A, already rette was was dead in determined to be type which order is also consistent with to inflict a post-mortem series of (94 4725-26.) blood- RT type. Post-con- wounds on her ice-pick chest with an or (105 viction DNA 7526-28.) tests confirmed that ciga- similar instrument. RT

9H refrigerator found missing was found was which Jessica in position can One bloodstained Ryen house. down getting her killer consistent was (88 of a shelf. edge hanging over in her chest inflict cuts his knees Olympia can of nearly empty A RT (105 RT dead. she was after those appearance similar Gold beer at the drinking beer was found Ryen refrigerator admitted midway horse-training arena about 5613-14.) (98 plowed A six- RT house. hideout hideout Ryen home between can with one beer Gold Olympia pack (90 RT house. murders, After the escaped p.m. around 4:00 on Sunday, June Jackson, (98 Tijuana, Mexico. RT using Peti- the false Angel name of (98 Tijuana tioner checked into a hotel Tijuana only RT is two hours

913 the object into water area, titioner throw leav- the San Bernardino from by car boat, Handy’s commit off of the to before he dove time for Petitioner ample ing dinghy, of June started to row for night the to a and swam murders 4846.) (95 escape to Mexico Long Beach and The sheriffs recov- drive to RT shore. 6, 10:00 5,1983. at about On June on where Peti- June a knife from water ered a collect call received Ms. p.m., Williams escape.4 attempted unsuccessful tioner his (88 Mexico. Tijuana, in Petitioner from was trial, admitted that he At Petitioner 113.) 3175-76; Trial Ex. RT house, just yards 126 from hideout at the way his Petitioner made Tijuana, From scene, he committed but denied the crime 5468.) (98 Ensenada, On RT Mexico. his jury The evaluated cred- the murders. Angelica 9, 1983, met and he Owen June proof that there was ibility and concluded Cooper, Cal.3d Handy in Ensenada. doubt that Petitioner beyond a reasonable 865; RT 90, 800, 809 P.2d Cal.Rptr. Petitioner testi- committed murders. again lied 4838-40, Petitioner 4874-75. name, under a false fied he was CIM Handys when he identity to the his about Trautman, pleading as a result of David them, Angel Jackson claiming to met be burglary of residential to two counts guilty (95 RT them for work. when he asked (97 5327-29; County. RT Angeles in Los 4839-40.) on the worked Petitioner 5499, admitted RT Petitioner boat, dry in dock. The which was Handys’ CIM, person- eluding CIM escaping from Francisco and sail for Handys then set San until he nel, yard in lumber hiding (95 RT them. Petitioner went with way on foot under to make his was able possession in Handys Petitioner The saw to the hideout house. the cover darkness having as items identified of numerous 5362-85.) (97 hiding admitted out He RT Peti house. taken from hideout been home, Ryen sleeping to the close pants sweat Lang’s Mrs. blue tioner had 5382-5417.) (97 RT Bilbia bedroom. 4876-78.) (95 4849-54, RT gloves. slept on that he testified Petitioner along places at various they stopped When house on Thurs- in the hideout Langs’ bed the boat and way, stayed Petitioner 2, 1983, but when he woke day night, June They were Santa go ashore. did not 1983, 3, he real- Friday morning, June up (95 RT days. for three or four Barbara seen in their bed- have ized he could been 4843^4.) room, stay in the Bilbia and decided 1983, County July Santa Barbara On 5414-15.) (97 RT closet. bedroom to a call responded Department Sheriff’s wearing his he was admitted Petitioner rape on a attempted anof for assistance jacket at the time of es- camp prison Handys’ boat docked next to the boat tennis shoes but prison-issued cape, vic- 26-year-old female Pelican Cove. receiving any tennis shoes ever denied attempted that Petitioner reported tim (97 RT Taylor. 5350- inmate (04-CV-656, NOL point. at knife rape her 5385-89.) testified 51, 5356-58, Petitioner Vault, Resp’t CIM April filed wearing of shoes he pair tried to 3 at Notebook 9.(98 pris- RT size the dock came to the authorities flee when recovered. never shoes were Pe- on-issued observed him. The Sheriffs to arrest knife that was rape point or the trial, at knife presented evidence prosecution 4. At arrest, from the water. report recovered but not of Petitioner's that he pris- coming up Petitioner testified threw the while the hill to the hideout along prison with other (98 on-issued shoes following escape house his from CIM. Handys’ when the clothing into the ocean 5513.) RT (98 boat sailed into United States’ waters. bringing Petitioner denied the blood- 5892-95.) RT nylon rope stained into closet in the the indicated that he drank beer Petitioner (97 5419; Bilbia bedroom. RT 99 RT garage refrigerator at the 5834-36.) smoking Viceroy He denied thing The first Petitioner hideout house. cigarette and it in in putting napkin the did at the hideout house was “[w]ent (97 5418-19.) Bilbia headboard. RT Peti- (98 5613-14.) RT had me a beer.” Peti- bringing Lang’s tioner denied Mrs. belt having “roll-your- tioner admitted some (97 into the Bilbia bedroom closet. RT Role-Rite) (i.e., own” tobacco with him 5834-36.) 5415; 99 RT escaped, when he as well as fifteen Kool Petitioner denied that he left the semen (97 5362-63.) cigarettes. RT stain on the blanket in the Bilbia closet. Saturday night, On after Ms. Williams (98 5523.) RT using He denied the Bilbia any money, him told she didn’t have Peti- days bathroom for the three he inwas he the hideout tioner claimed left house house, hideout other than once to test the down the hill” on “went back foot water in shower. He testified he al- night in manner as the same when he ways instead, Langs’ used the bathroom hill up following walked to hide out though even he was in sleeping the Bilbia (97 5435-38.) escape from CIM. RT He personal bedroom and all of his items were stopped stated he drivers and asked them (98 5682; in the Bilbia bedroom. RT (98 5449-50.) for RT directions Mexico. RT any Petitioner did not see jury rejected implausible The Petitioner’s in blood the Bilbia bathroom testimony that he left on foot and asked while he was (99 5808-09.) night drivers in the area at directions the hideout house. RT to Mexico. prosecution The effectively cross-exam- .going Ryen Petitioner denied to the ined Petitioner pointing out inconsisten- killing anyone house denied in in cies Petitioner’s account and questioning (97 5327; house. RT RT Peti- credibility. After due deliber- watching tioner admitted television to ation, jury concluded that Petitioner possible reports check for news about his committed the murders. (97 5425-26.) 5416-17, escape. RT Peti- trial, penalty phase taking pairs gloves tioner admitted two presented defense several friends and rela- bedroom, from the Langs’ but denied tives of Petitioner who testified about his house, wearing them the hideout or qualities good continuing and their love for making leaving finger- effort to avoid prosecution him. The presented evidence (98 prints. only RT finger- that on October a man stipulated print Ryen left in either Petitioner to be burglarized a home in home or the hideout house was on a Coffee Pennsylvania, high-school assaulted a stu- jar Mate the kitchen the hideout interrupted burglary, dent who kid- (87 2956-60.) explained house. RT He her, napped raped and then stole her gloves only that he took the to wear as he (107 car. RT left Petitioner took protect the hideout house to his hands because he hurt his hands when he fell teenager portion to a secluded of a

915 (See Agree- DNA in Joint formed 2001. her, her to and ordered threatened park, ment.) Petitioner, He underpants. and the assistance of jeans her remove forced her hair and by her her grabbed and two nation- post-conviction his counsel feel a She could ground. to the face down experts, entered into recognized DNA ally neck back of her against the screwdriver to test the Agreement DNA evi- a Joint down, from the waist nude lay face as she Agreement speci- DNA The Joint dence. took down, Petitioner crying. and upset evidence to be tested: the items of fied vaginally raped and her pants his down blood, drop from the remaining blood 7965-66.) (107 RT behind. from A-41, hallway the on wall found her face keep told her Petitioner doorway to the directly across from the pants, jumped down, up his got up, pulled bedroom; one master handrolled Ryen leaving Before car and drove off. into her cigarette butt found and one manufactured (107 said, you.” kill “I should Petitioner it wagon after was Ryen station inside 7966.) and nearby to a house She ran RT hatchet; Beach; Long recovered was identified Petitioner police. called the Canyon Corral the T-shirt found near outside print a thumb bedroom; Bar; found in the Bilbia a button house he was window of the dining-room hands of the from the and hair recovered victim. kidnapped he when burglarizing (Answer, Ex. at The 86 victims. 7977-78.) (107 palm also left a He RT that STR Profiler Agreement provided leaver of gearshift automatic on the print (107 by The testing performed be car. RT Plus DNA his victim’s consider as allowed to jury was also Berkeley of Justice DNA Department prior con- factor Petitioner’s aggravating (“DOJ speci- Berkeley”) on Laboratory in Los burglary of two counts of viction stages: in two fied items evidence 802, at 281 Cooper, 53 Cal.3d Angeles. testing Plus DNA “blind” STR Profiler 90, P.2d Cal.Rptr. 809 specified performed on the was to be the evi jury carefully considered The evidence, followed crime pieces of scene and mitigation aggravation and dence testing DNA on the Profiler Plus STR The death a verdict of death. returned from Petitioner exemplars known judge, trial by the was confirmed penalty (Answer, Ex. 86 victims. and federal affirmed the state the crime scene results from “blind” test (107 8144-40); Cooper, 53 RT courts. compared with the would then be evidence 90, P.2d 771, 809 865 Cal.Rptr. 281 Cal.3d the known reference obtained from results I, 92-CV-427, (1991); Aug. Cooper the victims. samples from Petitioner Calderon, Order; 255 F.3d Cooper v. 1997 DNA post-conviction own ex- Petitioner’s Calderon, (9th Cir.2001); v. Cooper 1104 Blake, drop of Dr. pert, identified L.Ed.2d U.S. 123 S.Ct. (A-41) cigarette two butts blood (2002). Ryen stolen station from the recovered in 1984- conducted trial was Petitioner’s biological relevant evi- wagon as “the most testing. of DNA prior to the advent (Answer, Ex. 89 in the case. dence” proceedings, post-conviction had the assistance Additionally, Petitioner his inno- testing prove sought DNA Plourd, nationally recog- Christopher of Cali- Subsequent passage to the cence. post- support of his expert, DNA nized People Penal Code section fornia testing. DNA testing per- conviction agreed to have certain DNA petition popula- successive chal- shirt occurs at random in the post-conviction of this lenges frequency the results tion with a 1 in of about provide testing. Americans, DNA These DNA results 110 million for African 1 that strong evidence Petitioner is the killer Caucasians, in 16 million for 1 in and person responsible Ryen/ and for the sole 12 Hispanics. million for Western (DOJ Physical Hughes murders. Evi- Physical (Supplemental DOJ Evidence 2, 2002; July Report dence Exam dated 24, Exam Report Sept. dated 2002 at Supplemental Physical DOJ Evidence In inculpat- addition to the DNA evidence 2002.) 24, Report Sept. Spe- Exam dated Petitioner, ing profiles DNA of blood taken that cifically the results established Peti- from a that hatchet was taken from the tioner was the donor of the DNA found on escape house where Petitioner hid after his following items: prison matched that of several of the (1) Ryen a bloodstain in the home near including Doug Ryen, victims Ryen Jessica the master bedroom where the vic- Hughes. (Supplemental and Chris DOJ tims were attacked matched Coo- Physical Report Evidence Exam dated profile per’s DNA and was found to 24, Sept. at 2002 in population occur at random requested in hearing frequency approximately with a 1 Superior Court of regarding California Americans, in 310 billion for African DNA results. Judge Kennedy of the San Caucasians, 1 in 270 billion for and 1 Diego Superior evidentiary Court held an in for Hispanics; 340 billion Western 23-25, hearing on June 2003. Petitioner (2) in cigarette two butts found the sto- witnesses, including expert called DNA Ryen wagon len station it when was Christopher (92-CV-427, Plourd. NOL in Long recovered Beach had Coo- 3, 2004, Tr., filed Feb. Reporters’ Vols. 1-3 DNA, with per’s cigarette one hav- 25, dated June 23-24 and 2003 before Hon. ing enough sample DNA it Kennedy William H. in Case No. CR at popu- would occur random the 72787; 92-CV427, 23, 2004, NOL filed Jan. frequency with a 1 in lation of about 6, 2, Judge Kennedy July Ex. Order filed Americans, 19 billion African 1 in 11 at original 2003 Three of the crime Caucasians, 1 billion for and in 15 criminalists, persons scene from the San Hispanics; billion for Western and Division, Bernardino Property Sheriffs cigarette having enough other Supervisor Diego from the Superior Court sample DNA that it occur at would Exhibit Room and DOJ criminalist Steven population random in the awith fre- (92-CV-427, Meyers also testified. NOL quency of 1 in about 110 million Afri- 3, 2004, Tr., Reporters’ filed Feb. Americans, Vols. 1-3 can 1 16 million for 23, 25, Caucasians, dated June 24 and 1 in 2003 before Hon. 12 million for Kennedy William H. Hispanics; Western Case No. CR- 72787; 23, 2004, 6, NOL filed Jan. Ex. (3) a bloodstain on a[T-] shirt found on Judge Kennedy 2, July Order dated the side of a road within two miles 4.) Judge Kennedy listened to all of the Ryen matching home had DNA testimony, including sworn criminalist Gre- Cooper’s partial DNA profiles that, victims, gonis and determined matching that of “Petitioner has two Doug Peggy Ryen. any showing not made The DNA law enforce- matching Cooper’s personnel tampered found on the t- ment with or contami- (92-CV- tion in the Ninth any evidence in his case.” Circuit determined nated governed Ex. No. that AEDPA stating: NOL filed Jan. July Judge Kennedy Order dated first determine AED- We must whether motions, reviewing After written applies Cooper’s petition. PA new testimony listening presented to the Villa-Gonzalez, States v. United hearing arguments, Judge both sides and (9th Cir.2000), F.3d 1163-64 we Kennedy request denied provisions governing held that AEDPA’s DNA no testing further and found merit or petitions apply second successive to a allegations tampering. his of evidence petition filed after date of AED- new the (92-CV-427, Supplemental Third NOL enactment, original pe- PA’s even if the 23, 2004, 6, Judge Kennedy Ex. filed Jan. tition was filed before. Under Villa- 10, 11.) 2, July dated 2003 at Order Gonzalez, AEDPA apply we must Cooper’s petition. new Judge Kennedy Nearly six months after ruling, petition issued his Petitioner filed a Cooper, 274 F.3d at 1272. corpus of habeas for writ California third corpus federal habeas 5, 2004, Supreme February Court. On the 1, in this petition April Court was filed on denied Supreme California Petition- 2004, long after the AED- effective date of procedur- er’s claims on the merits and as PA, 24, such, April provi 1996. As barred, ally finding that with the “[a]s govern sions of AEDPA this latest habeas writ previous petitions five for of habeas Johnson, petition. Penry See v. 532 U.S. corpus petitioner has filed in this 782, 792, 1910, 121 S.Ct. 150 L.Ed.2d 9 challenging judgment, peti- court this (2001) (“Because [petitioner] filed his fed petitioner’s guilt tion no or casts doubt petition eral habeas after the enactment of validity judgment.” of the In re Coo- [AEDPA], provisions gov of that law

per, Case No. S122389. review.”); scope our ern the Lindh v. request Petitioner then filed a with the 320, 326, 2059, 117 Murphy, 521 U.S. S.Ct. Ninth Circuit to file a successive habeas (1997) (AEDPA applies 138 L.Ed.2d 481 corpus petition federal court. 24, April all filed after petitions habeas granted request Ninth this on Feb- Circuit 1996). 9, 2004, ruary and remanded the succes- petition sive to this Court. A. AEDPA’s Standard for Habeas Relief

STANDARDS OF REVIEW The Ninth authorization which Circuit’s I. The Antiterrorism and Effective enabled Petitioner to file a successive ha- Penalty Act of

Death 1996 petition pursuant beas to 28 U.S.C. 2244(b) § with this Court does not relieve Antiterrorism and Effective Death “[The demonstrating Petitioner of burden Penalty governfs] Act of AEDPA 1996] [ ] compliance requirements with those before any appeal habeas commenced after its seeking this Court. Petitioner’s burden date, April re- effective without authorization from the Ninth was Circuit petition filed.” gard when Coo- (9th Calderon, merely prima showing to make a facie per v. 255 F.3d 1107 2244(b) Calderon, § Cir.2001); gatekeeper compliance 274 Cooper v. F.3d 2244(b)(3)(C). (9th Cir.2001). § purposes. In Petitioner’s 28 U.S.C. Court, he must previous request peti- to file a successive Now that he is before this if the basic “ground A is successive pend that each claim his actually show legal claim is gravamen thrust or statutory require ing petition satisfies same, regardless of whether ba- Cain, 656, 661, n. 533 U.S. Tyler v. ments. supported by claim is new and differ- sic (2001). 150 L.Ed.2d 632 121 S.Ct. Identical legal arguments.... ent authorization al gatekeeper While grounds may proved often be differ- any to file and all claims lowed Petitioner ” allegations.... factual ent prima facie petition upon in a successive one claim satisfies showing Allen, v. (quoting Id. United States 2244(b), § Nevi requirements of 28 U.S.C. 664(9th Cir.1998)). F.3d (9th McDaniel, 104 F.3d Cir. us v. 1996), satisfy the re Petitioner must now 2. New in a Claims Successive 2244(b) § as to quirements of 28 U.S.C. Rigid Application Meet a Must that claim can be consid each claim before under AEDPA Standard ered this Court. Second, if claim not even has in a federal ha- previously presented been Presented in a

1. Claims it must nevertheless be dis petition, beas Application are Prior missed unless it falls within one of two be Dismissed exceptions: narrow (A) the claim First, “presented applicant in a second shows any claim law, relies on a new rule of constitutional un corpus application successive habeas or retroactive to cases on collateral made in a presented 2254 that was der section Court, by Supreme review that was prior application shall be dismissed.” 28 unavailable; previously or 2244(b)(1). only § exception The U.S.C. by Ninth recognized

that has been (B)(1) predicate factual for the claim dismissal for requirement Circuit to the previous- not been could have discovered in “extreme previously presented clams is ly through diligence; the exercise of due the claim ly narrow circumstances” where petition in was held presented previous (ii) claim, underlying the if the facts Woodford, premature. Babbitt v. be proven light and viewed in of the evi- Cir.1999) 745(9th 744, (citing 177 F.3d whole, dence as a would be sufficient to Stewart, v. 118 F.3d

Martinez-Villareal by convincing clear and evi- establish (9th 637, 628, Cir.1997), aff'd, 523 U.S. 630 error, that, for constitutional dence but (1998)). 849 118 S.Ct. 140 L.Ed.2d reasonable factfinder would have no applicant guilty found the the under- newly presented A claim is not lying offense. merely petitioner offers new because 2244(b)(2)(A)(B). § 28 U.S.C. claim support legal factual bases in of a already The Ninth that has been raised. rely on a new rule of Petitioner does held that it would not “consider Circuit law, only possible so his Constitutional support grounds new factual factual newly claim is under the discovered previously pre same claim” that was legal predicate prong. See 28 U.S.C. 2244(b)(2)(B). sented, reasoning as follows:

919 implicit rejection Determinations En- which was of defen B. Court State Heavy claim). joy Deference under a per dant’s Where there are two AEDPA evidence, missible views of the a fact find Determinations, clearly er’s choice between them cannot be Factual Both Implied, Enjoy Zant, Express erroneous. Amadeo v. 486 U.S. Heavy Deference 1771, 100 (1988) a S.Ct. 249 L.Ed.2d Challenges finding to the state court Legal 2. The State Court De- by governed facts are U.S.C. Enjoy terminations Also 2254(e)(1). determinations, § factual As to Heavy Deference by applica- instituted proceeding a “[i]n corpus by a tion for a writ of habeas Because each of Petitioner’s claims have judg- person custody pursuant to the Supreme been raised in the California court, a ment of a State determination of merits, and denied on the this Court court factual issue made State shall apply highly must deferential standard presumed applicant be to be correct. The forth in AEDPA. Lindh v. Mur- set See rebutting the shall have the burden of phy, 521 U.S. S.Ct. presumption of correctness clear (1997). L.Ed.2d 481 convincing evidence.” 28 U.S.C. Code, Title United States section 2254(e)(1). § 2254(a), following scope sets forth the express implied factual deter corpus review for federal habeas claims: by minations the state trial court and Cali thereof, Court, Supreme The a Justice Supreme fornia Court are entitled to def judge, circuit or a district court shall by erence. “Factual determinations state presumed courts are correct absent clear application entertain an for a writ of convincing contrary.” evidence to the corpus person habeas in behalf of a in Cockrell, 322, 340, v. 537 Miller-El U.S. custody to the of a pursuant judgment 1029, (2003); 123 S.Ct. 154 L.Ed.2d 931 28 only ground court on the that he is State 2254(e)(1). § and convinc U.S.C. “Clear in in custody violation of the Constitu- meaning of ing evidence” within the tion or laws or treaties of the United 2254(e) “requires greater proof § than States. preponderance of the evidence” and must 2254(a). pro- § 28 U.S.C. The standard produce abiding “an conviction” that vides: being factual contentions advanced are (d) application An for a of habeas writ “highly probable.” Sophanthavong v. Pal corpus person custody on behalf of a (9th Cir.2004) mateer, 859, 378 F.3d 866 pursuant judgment to the of State omitted). (quotation respect granted court shall not be presumption The of correctness adjudicated claim that on the was fact, applies only express findings of unless proceedings merits in State court applies equally but also to unarticulated adjudication claim— of the necessary findings that are to the state (1) in a con- resulted decision questions of mixed court’s conclusions to, trary involved an or unreasonable Lonberger, fact law. Marshall v. See of, clearly Feder- application established 422, 433, 843, 74 459 U.S. 103 S.Ct. law, (1983) Supreme al as determined (application pre L.Ed.2d 646 States; or sumption credibility to a determination Court United 920 correct.

(2) presumed fact and law are See in a decision that was based resulted 433, Marshall, determination of the at 103 S.Ct. an unreasonable 459 U.S. presented light of the evidence to credibili 843(application presumption facts proceeding. court the State in re ty implicit which was determination claim). Moreover, jection of defendant’s 2254(d). § 28 U.S.C. would undermine anything less deferential relief, Petition To obtain federal habeas courts “avoid attribut the law federal 2254(d)(1) § or satisfy either er must error to the state court.” ing constitutional 2254(d)(2). Taylor, v. 529 § See Williams 848, Thompson, Himes v. 336 F.3d 854 1495, 146 L.Ed.2d U.S. 120 S.Ct. (9th Cir.2003); v. Vis see also (2000). question is The threshold Woodford 389 ciotti, 19, 24, 123 S.Ct. 154 537 U.S. clearly law was estab the rule of whether (2003). 279 L.Ed.2d petitioner’s state court lished at the time final. Id. conviction became “contrary ap- to” and “unreasonable Clearly federal 1495. established S.Ct. in 28 plication” clauses contained U.S.C. law, Supreme Court as determined 2254(d) meanings. § have distinct States “refers to the hold of the United Williams, 529 U.S. S.Ct. dicta, of this ings, opposed as “contrary A to” decision is United States as of the time of the Court’s decisions authority apply if it fails to Supreme Court Id. at relevant state court decision.” if it controlling authority, the correct or 1495; Lockyer v. An see also 120 S.Ct. controlling authority to a case applies the drade, 63, 71, 123 S.Ct. 538 U.S. materially indistinguishable involving facts (2003). Ninth Circuit case L.Ed.2d 144 case, controlling in a but reach- from those may authority pur “persuasive law be 405-06, Id. at es a different result. determining particular whether a poses of A S.Ct. 1495. decision is “unreasonable is an ‘unreasonable state court decision clearly application” of established federal law, and application’ Supreme law when the state court identifies what law is may help also us determine governing legal principle, correct but un- ” v. Duc ‘clearly established.’ Duhaime reasonably applies principle to the (9th Cir.2000). 597, harme, 200 F.3d 600 407, of that case. Id. at 120 S.Ct. facts Only clearly after the established federal Williams, application an of 1495. Under court determine law is identified can the only if federal law is unreasonable it is application state court’s of whether 409, “objectively unreasonable.” Id. at 120 that was that law “resulted in a decision 1495. S.Ct. to, an unreasonable contrary or involved previously clearly Although fed the Ninth Circuit application of’ that established 71-72, error,” at Lockyer, analyzed eral law. See 538 U.S. habeas cases for “clear 123 S.Ct. 1166. Supreme disapproved ap- Court this 75, at proach. Lockyer, 538 U.S. 123 S.Ct. identify the relevant This Court must 212 1166(rejecting Lindsey, Tran v. Van authority Supreme Court United States (9th Cir.2000)). Rather, when a F.3d 1143 in apply and then that law to the record challenge the state petitioner does not court light most favorable to state evidence, he court’s determination approach embodies decision. Such if’ may “only relief he establishes receive unarticulated longstanding principle that court decisions were “con- that the state necessary to the state findings that are to, trary ap- or involved an unreasonable questions mixed of court’s conclusions of

921 law, of, A state court’s decision “based on dearly established federal plication a factual determination will not be over Supreme determined Court as objective Vincent, grounds turned on factual unless Price v. the United States.” See in 1848, ly light unreasonable of the evidence 634, 2,n. 640-41 123 S.Ct. 588 U.S. (2003). presented proceeding.” the state court L.Ed.2d 877 155 Miller, 340, at 1029 537 U.S. 123 S.Ct. question there is a federal When (2003); 2254(d)(2); § v. Wiggins 28 U.S.C. controlhng Supreme Court authori but no Smith, 510, 528, 2527, 539 123 S.Ct. U.S. court’s merits determi ty point, state (2003). 156 L.Ed.2d 471 “contrary to” decision nation is not Even if the state court fails to or cite AEDPA. meaning within acknowledge Supreme United States 12, 17, 124 Esparza, v. 540 U.S. Mitchell authority, may Court a federal court not (2003). 7, L.Ed.2d 263 In the S.Ct. 157 grant habeas relief unless the state court’s controlhng authority, federal absence of reasoning clearly contradict or result es- court’s rea courts should defer to state Supreme tablished States United Court interpretation sonable Constitution. 8, at precedent. Early, 537 U.S. 123 S.Ct. 17-18, 7; Penry 124 v. Id. at S.Ct. John The Ninth has held that where Circuit son, 1910, 150 532 U.S. S.Ct. there is no reasoned state court decision (2001) that a Texas (holding L.Ed.2d 9 on one or more issues raised the federal court’s decision was not unreasonable court must conduct an petition, federal controlhng squarely where there was no independent review of the record to deter- authority). mine whether the state court decision was to, contrary application or an unreasonable application “An unreasonable of, controlling Supreme United States incor of federal law is different from an Lewis, v. precedent. Delgado Williams, application rect of federal law.” 982(9th Cir.2000). F.3d A federal 1495; 120 S.Ct. Clark v. U.S. course, “presume, court must that state 1067(9th Murphy, 331 F.3d Cir. courts ‘know and follow the law’[.]” 2003). may A court federal habeas Thompson, Himes v. 336 F.3d that court simply issue the writ because Cir.2003) (9th (citing Woodford, 537 U.S. independent judgment concludes its De novo review of a 123 S.Ct. wrong. court decision is See Bell the state adjudication appropri- is not state court’s Cone, 685, 698-99, 122 v. 535 U.S. S.Ct. ate. Id. at 854 n. 3. Williams, (2002); 1843, 152 L.Ed.2d 914 411, 120 state The deference accorded to state court 529 U.S. at S.Ct. 1495. The by pre it AEDPA is intended to court decision must be affirmed unless is decisions Bell, “objectively unreasonable.” 535 U.S. vent federal habeas “retrials” and ensures 699, 1843; Woodford, “given 122 that court convictions are ef at S.Ct. 537 U.S. state 24, law.” possible at 357. a state court fect to the extent under 123 S.Ct. Where 1843; Bell, 693, at 122 S.Ct. see finds a constitutional error be harmless 535 U.S. Clark, doubt, AEDPA a reasonable a federal court 331 F.3d at 1067. The beyond may deference standard demands that federal grant not relief unless the state objec court decisions “the bene give court's harmless error decision is courts state Mitchell, Woodford, at tively unreasonable. 540 at fit of the doubt.” 537 U.S. U.S. 24, 123 12, 124 S.Ct. 357. S.Ct.

922 factfinder would have found the un- sonable Habeas Standards II. Alternative underlying offense.” Schlup guilty Herrera applicant der 1119-20(citation F.3d at omit- Cooper, 358 apply not to this if AEDPA does Finally, ted, emphasis original). gateway then the petition, successive gov by Petitioner are presented claims request to previous In Petitioner’s Delo, 298, 513 U.S. 115 by Schlup v. erned petition, the Ninth Circuit file a successive (1995) and the L.Ed.2d 808 S.Ct. governs that AEDPA a successive held by governed are actual innocence claims of filed after the effective date of petition Collins, 390, 113 S.Ct. Herrera v. 506 U.S. Therefore, AEDPA. concludes Court (1993). 853, 122 L.Ed.2d 203 pe applies that AEDPA to this successive tition. Supreme The States United a claim of actual innocence has held that if the Court Schlup applies, But even procedural “to avoid a bar can be raised not concludes that Petitioner has estab- [the of the merits of the consideration evidence, light including of all the lished claims.” petitioner’s] constitutional evidence, likely it more than new that is 326-27, 115 S.Ct. 851. Schlup, 513 U.S. juror not that no reasonable would have claim under To make a successful guilty beyond him a reasonable found that in must show Schlup, petitioner Schlup, if Petitioner meets doubt. Under evidence, including new light of all the actual inno- establishing his burden of likely than evidence, it more not is cence, then the Court is to evaluate the juror have found no reasonable would Mary- alleged Brady violation under v. beyond guilty a reasonable petitioner land, 83 S.Ct. 373 U.S. doubt. (1963) v. L.Ed.2d 215 or under Strickland omitted.) (citation F.3d at 1119 Cooper, 358 104 S.Ct. Washington, U.S. reliable, actual innocence To be a claim of (1984). L.Ed.2d 674 As stated evidence— must based on “new reliable be Schlup, only it is after a Supreme Court exculpatory scientific evi

whether it be showing sufficient of actual innocence accounts, dence, or trustworthy eyewitness permitted to consider the oth- the court is physical evidence—that was critical er constitutional claims on the merits: Schlup, at trial.” 513 U.S. presented claim of innocence does not Schlup’s 324, 115 S.Ct. 851. Instead, provide itself a basis for relief. The Ninth did not decide wheth- Circuit depends critically relief his claim for of actual innocence Schlup er the standard validity Brady his Strickland requires a Schlup standard applies. Schlup’s claims. claim of innocence is evidence, light “in of all the showing that it claim, thus not itself a constitutional but evidence, likely it is more including new through which a ha- gateway instead a juror that no reasonable would than not to have his petitioner pass beas must guilty beyond a rea- petitioner have found claim otherwise barred constitutional doubt,” or whether the more strin- sonable peti- on the merits.... a [I]f considered gent standard under 28 U.S.C. evidence Schlup presents tioner as such 2244(b)(2)(B) requires a applies, § which a court can- strong of innocence so that through “factual claim not discoverable [ ] outcome of not have confidence diligence” that estab- the exercise of due the court is also satisfied the trial unless by convincing evidence lishes “clear that, error, trial free of nonharmless rea- that the but for constitutional no

923 error, petitioner tual claim not discoverable through [ ] constitutional pass through should be allowed diligence” exercise of due that establishes argue the merits of his gateway that, convincing “clear and evidence but underlying claims. error, for constitutional no reasonable fact- 315-16, Schlup, 513 U.S. at 115 S.Ct. 851. applicant finder would have found the exception The actual innocence should “re guilty underlying offense.” 28 “only applied main rare” and be 2244(b). reasons, § U.S.C. For the same extraordinary Schlup, case.” 513 U.S. at the Court also concludes that Petitioner 321, 115 S.Ct. Herrera, requirements has not met the apply

If AEDPA does not to Petitioner’s requires “extraordinarily which high” innocence, claims of actual then Petitioner showing truly persuasive of “a demonstra ” Herrera, meet the test of which re- must Herrera, tion ‘actual innocence.’ 506 quires 417, 113 U.S. at S.Ct. 853. truly persuasive a demonstration of “ac- 2244(b)(3)(B) Title section 28 U.S.C. di ... tual innocence” because of the [and] ap rects that motion the court of “[a]

very disruptive entertaining effect that peals authorizing for an order the district innocence have on claims actual would court to consider a second of successive cases, finality for capital the need application shall be a determined three- that to re- having the enormous burden judge panel of the court of Ac appeals.” try cases based on often stale evidence statute, cording only three-judge to the a States, place would on the the threshold panel application is allowed to review an showing right for such an assumed necessarily extraordinarily However, would be petition. for a successive in this high. case, panel sponte granted the en banc sua application a Petitioner’s to file successive Herrera, 506 U.S. 113 S.Ct. 853. petition authority Thompson under the “contemplates showing This a stronger (9th insufficiency Calderon, than of the evidence to con v. 151 F.3d 922 Cir. guilt.” Carriger 1998). vict” or “doubt about his (9th Stewart,

v. 132 F.3d 476 Cir. 1997). standards, petition these Under III. Procedural Bars Preclude State affirmatively he prove er must is Review innocent. probably Id. Petitioner has not established

Moreover, requires Herrera there as to claim the prejudice cause and open process is “no state avenue such procedurally state court found barred. case, claim.” Id. this the California considering When claims on habeas cor actual Supreme Court denied Petitioner’s (see merits, pus, this Court must first address the innocence claims Sixth Answer, 12-37; State Habeas Pet. at Ex. argument procedur state’s that a claim is 13), Governor of California denied ally Singletary, defaulted. Lambrix v. clemency. application U.S. S.Ct. 137 L.Ed.2d (1997). Procedural defaults are re if upon

But even an evaluation of the Teague solved before issues. Id. This is so merits of Petitioner’s claims of actual inno- if court has denied the even the state also cence, the concludes that Petitioner Mueller, AEDPA, claim on the merits. Bennett v. has not meet his burden under (9th Cir.2003). requires among a “fac- things, which other 322 F.3d 924 Brady Maryland v. from re IV. precluded is

A federal court claim the of a when viewing the merits petition, Peti this successive relief on the basis of court has denied state Brady of v. Ma alleges tioner a violation adequate proce and state independent an 83, 1194, 10 ryland, 373 U.S. 83 S.Ct. Thompson, (1963). v. 501 default. Coleman Brady, dural the 215 Under L.Ed.2d 731-732, 2546, 722, 111 115 evidence fa prosecution’s suppression S.Ct. U.S. White, process accused “violates due (1991); vorable to an v. L.Ed.2d 640 Vansickel material either to (9th Cir.1999). where the evidence is 953, 957 166 F.3d guilt punishment irrespective or to “indepen procedural bar must be state prosecution.” faith good faith or bad question and “ade dent” of the federal 87, compo The three Id. at 83 S.Ct. 1194. support judgment.” Cole quate to Brady of a nents or essential elements man, 729, A at 111 501 U.S. S.Ct. (1) claim are fa prosecutorial misconduct an “ade rule constitutes procedural state (2) vorable evidence is withheld court review if it was quate” bar to federal (3) in prejudice: that results prosecution “firmly regularly followed” established must be favorable The evidence issue applied by the state at the time it was accused, it is excul- to the either because 411, Georgia, v. 498 423- court. Ford U.S. patory, impeaching; or because it is (1991); 424, 850, 112 L.Ed.2d 935 111 S.Ct. suppressed by have been evidence must (9th Stewart, 573, v. 169 F.3d 577 Poland State, willfully either or inadvertent- Cir.1999). procedural A state rule consti ly; prejudice must have ensued.... if it “independent” an bar is not tutes Brady Corresponding to the second dependent with federal law or interwoven (evidence suppressed by the component ruling. a constitutional Ake upon federal State), when petitioner shows “cause” Oklahoma, 68, 75, 105 v. 470 U.S. S.Ct. develop the reason for his failure to (1985); Michigan L.Ed.2d 53 v. proceedings was the facts state-court 1032, 1040-41, 103 S.Ct. Long, 463 U.S. of the relevant evi- suppression State’s (1983); v. 77 L.Ed.2d 1201 La Crosse dence; Brady coincident with the third Cir.2001). (9th Kernan, 244 F.3d prejudice within component (prejudice), preju- compass of the “cause decision Under the Ninth Circuit’s sup- requirement dice” exists when the Bennett, rais 322 F.3d once the state evidence is “material” pressed independent es the existence of Brady purposes.... materiali- [T]he procedural ground as a de adequate state Brady claims is met ty standard for fense, “spe must then raise petitioner could rea- when the favorable evidence allegations factual that demonstrate cific sonably put taken to the whole case be in procedure, inadequacy state light a different as to undermine such authority demonstrating citation to cluding in the verdict. confidence Ben application inconsistent of the rule.” Dretke, 668, 691, 124 Banks v. 540 U.S. nett, 584, 586(quoting Hooks v. 322 F.3d (2004) omitted). (quotations Cir.1999)). S.Ct. (10th Ward, 1206, 1217 184 F.3d Otherwise, material, must establish cause and its Favorable evidence is imposition unconstitutional, prejudice and actual to avoid “if there is suppression is Calderon, that, evi- probability 187 F.3d had the the bar. Rich v. reasonable defense, (9th Cir.1999). dence disclosed to been

925 requires showing have been “This that proceeding result of the would counsel made v. 473 Bagley, different.” United States. errors so serious that counsel was not 667, 682, 3375, L.Ed.2d U.S. 105 S.Ct. 87 functioning guaranteed as the ‘counsel’ (1985). probability Reasonable “is a 481 defendant the Sixth Amendment.” Id. to undermine confi probability sufficient Second, petitioner must show counsel’s in the outcome.” Id. dence performance prejudiced deficient the de prejudice requires fense. Id. The test for Materiality “must be evaluated that the defendant that show there is a context of the entire record.” United that, probability reasonable 97, 112, but for coun Agurs, v. 427 U.S. 96 S.Ct. States (1976). errors, 2392, unprofessional sel’s the outcome 49 L.Ed.2d 342 The mere 694, possibility that undisclosed information would have been different. Id. at 104 defense, might helped might words, have or In petitioner S.Ct. 2052. other trial, the outcome of the is have affected must demonstrate his counsel’s error ren materiality insufficient establish dered the result trial unreliable or the 109-10, at 96 constitutional sense. Id. fundamentally unfair. Lockhart v. Fret addition, in order to be S.Ct. well, 838, 122 506 U.S. 113 S.Ct. meaning material information within the (1993); Strickland, L.Ed.2d 180 466 U.S. Brady, the undisclosed information or evi- 694, 104 at S.Ct. 2052. Review of counsel’s acquired through dence information performance “highly is deferential” and must be admissible. States v. Ken- United “strong is a presumption” there that coun (9th Cir.1989). 1056, nedy, 890 F.2d 1059 adequate sel rendered assistance and exer Petitioner must show how the information professional judgment. cised reasonable would or evidence be both material and Ferreira-Alameda, United States v. 815 Pennsylvania favorable to his defense. v. (9th 1251, Cir.1987); F.2d 1253 see Strick Ritchie, 39, 15, n. 480 U.S. 58 107 S.Ct. land, 690, 466 U.S. 104 S.Ct. 2052. (1987). 989, 40 94 L.Ed.2d prove Petitioner must both elements. The may reject court claim upon finding his Y. Ineffective Assistance of Counsel performance either that counsel’s was rea clearly established United States sonable or that the claimed error was not Supreme governing Court law ineffective Strickland, 700, prejudicial. 466 U.S. of counsel claims is forth in assistance set 104 S.Ct. 2052. Washington, v. 466 Strickland U.S. petition, In this third federal Pe- habeas (1984). 104 L.Ed.2d S.Ct. 80 674 repeats argu- titioner several issues and (9th Estelle, Baylor v. 94 F.3d trial, along ments raised with chal- Cir.1996) (stating that Strickland “has lenges already appeal made on direct clearly long been established federal law prior post-conviction challenges. Peti- Supreme determined respect tioner cannot be heard with Wood, States”); v. United Jones F.3d already adjudicated claims that have been (9th Cir.1997). peti A habeas prior petition in his federal for habeas satisfy requirements tioner must two 2244(b)(1). corpus § relief. 28 U.S.C. demonstrate his assistance of counsel was presents Even if Petitioner a claim that so defective habeas relief is warrant adjudicated by First, previously has not been petitioner ed. must show that Court, this he must demonstrate that the performance counsel’s deficient. Strickland, predicate 466 U.S. at 104 S.Ct. 2052. factual for the claim could not T-shirt, Trial Exhibit and on a planted due previously with discovered

have been would reveal by testing clear further of hairs must also show that and he diligence; representations if that the facts assailant. Based on convincing evidence and and proven, regarding claim are scientific underlying his made Petitioner whole, a evidence as light of the the Ninth Circuit en testing capabilities, viewed have found would reasonable factfinder panel no stated: banc 2244(b)(2). § him 28 U.S.C. guilty. us, states, Cooper In his brief to consider addition, for the Court in order mitochondrial “Through readily available claims, Petitioner must his constitutional in one of the testing of blond hairs found likely not that no more than show it is hands, testing pres- and for the victim’s peti- found juror would have reasonable EDTA on preservative agent ence of the beyond a reasonable doubt. guilty tioner belatedly claimed the State T-shirt[] 115 S.Ct. 851. Schlup, 513 U.S. See blood, ques- Cooper’s contained Mr. claims, must of his Petitioner As to each can be Cooper’s of Mr. innocence tion require- with the compliance demonstrate for all.” answered once and 2244(b). § ments of 28 U.S.C. may position court be in a The district very As soon quickly. resolve this case DISCUSSION filed, it application is should Cooper’s as he is is on death row because two tests be promptly order these brutally slaughter chose to person who Cooper’s performed order to evaluate mother, father, a two children and claim of innocence. home, an sanctity Ryen and leave 1124. Cooper, 358 F.3d at barely clinging to life. The other child Therefore, 9, .2004, February testing has confirmed post-conviction DNA issued an en banc decision Ninth Circuit rejects guilt, and the Court Petitioner’s Petitioner to file a or that allowed second on the merits. After Petitioner’s claims in this corpus petition habeas successive mitochondrial DNA test having conducted Woodford, F.3d 1117 Cooper v. Court. par testing, and EDTA reviewed ing Cir.2004). (9th Specifically, the Ninth Cir- testimony from heard from papers, ties’ may be guilt cuit stated that Petitioner’s witnesses, forty-two and reviewed experts (1) through two scientific tests: resolved exhibits, prior considered numerous testing DNA of hairs found mitochondrial record, oral parties’ listened to the (2) victims, T- testing of the on the DENIES Petition arguments, preservative. EDTA Id. at 1123- shirt for §§ 2254 to 28 U.S.C. petition pursuant er’s including grounds, on all Collins, Delo, Brady v. Schlup v. Herrera Testing DNA Fails II. Mitochondrial Washing v. Maryland, v. and Strickland the Hairs to Establish ton. Ryen are from Hands Jessica Potential Assailants Other Banc Decision I. Circuit’s En Ninth Regarding DNA Test- Mitochondrial mitochondrial The Court conducted ing Testing and EDTA hairs in the hands of testing DNA found to the Ninth Circuit pursuant the victims petition chal- successive remand, held a After the Court order. DNA evidence lenges post-conviction regarding mito- April tutorial on that his blood was guilt alleging testing. post-conviction testing. DNA and EDTA Dr. nation DNA chondrial Melton, Terry (04-CV-656, President and CEO of Mito- Report detailing Dr. Blake’s LLC; Technologies, Dr. Kevin Bal- typing Previous Examination and Current Evalu- lard, Analytical Toxicology of Director 6/04/04, ation of the Hair Evidence dated Services; and Dr. Peter National Medical (“Dr. Doc. No. 161 Report”).) Blake’s DeForest,5 criminalist, participated a as 2001, In post-conviction testing DNA in experts. Steinberger, Dr. Eva hair by highly qualified was examined Programs for New at the Assistant Chief suitability scientists for for nuclear DNA Department partici- of Justice California testing Department at the of Justice DNA (4/2/04 Respondent’s expert. pated as (Dr. Richmond, Laboratory in California. HRT.) 2004, 3-4, the Court held On June 2-18; Report Blake’s at HRT 134- 6/3/04 evidentiary hearing where Dr. Edward 165; 31-91; HRT 2 State Evidentia- 6/4/04 Blake, Dr. Thornton and Mr. John Steven 6 (“SEHRT”) ry Hr’g Reporters’ Tr. 253- Myers regarding previous testified exami- 54.) The selection and documentation of of the hair evidence nuclear nation biological specimens for DNA suitable Dr. testing DNA 2001. John Thornton hair, testing, including by done Peti- was a criminalist who was Petitioner’s ex- Blake, expert, tioner’s Dr. DOJ Laborato- at Dr. pert trial. Edward Blake was Peti- ry Sims, Gary Myers. Director and Mr. expert during post-conviction tioner’s (Dr. 2-18; Report Blake’s at DNA Joint Myers a testing. DNA Steven is Senior ¶ 2.10.) Testing Agreement, Dr. Blake at Department Criminalist the California Myers approximately and Mr. looked at of Justice Bureau of Forensic Services who 1,000 visually microscopically. hairs post-conviction was involved DNA (Dr. 6-7; at HRT Report Blake’s 6/3/04 testing. 140-41; 33-34; 275, HRT 2 SEHRT 6/4/04 280.) Testing DNA All of using A. Post-Conviction the hairs were examined the Hairs stereomicroscope. a Selected hairs were in order to a mounted be viewed under evidentiary hearing, At the Dr. Blake compound microscope, provides which a Myers regarding and Mr. testified work (Dr. higher magnification. Report Blake’s during post-conviction conducted DNA 6-7; 157; at HRT HRT 33- 6/3/04 6/4/04 testing and forensic examination 37; (See only SEHRT There were 135-178; hair HRT evidence. 6/03/04 28-111.) possessing anagen three hairs roots HRT In connection with 6/4/04 were identified Dr. Blake and Mr. hearing, report Dr. Blake a submitted (Dr. detailing previous Myers testing.7 forensic hair exami- for nuclear DNA appeared telephonically anagen 5. Dr. DeForest at the cells ... called roots. Hairs [and] type that have this of root structure contain tutorial. nuclear When hair moderate levels of DNA. evidentiary Reporters’ Transcripts 6. of an type possesses with this of root structure also hearing Judge Kennedy before of the San cells, may root sheath the nuclear DNA levels Diego Superior designated Court in 2003 are naturally quite large. out of be Hairs fall lodged are "SEHRT” and with the Court the skin after the hair root cells die and I, 92-CV-427, Cooper atrophy typically shape tip NOL filed Feb. have the swab; Tr., type Q-tip of root hair roots this Reporter's Vols. 1-3 dated June telegen called These hair structure are roots. 24 and 2003 before Hon. William H. Ken- possess any significant roots do not amount of nedy in Case No. CR-72787. Hair shafts and all hair nuclear DNA.... forcefully "Hairs that are removed from the level of detectable roots contain least some possess (Dr. typically skin ribbon-like or club-like Report at mitochondrial DNA.” Blake's coating and a of root sheath root structures mur- 140-41; during the assailant 7-17; pulled from RT Report at Blake’s 6/3/04 33-37; These RT SEHRT ders: 6/4/04 human hairs collected hairs were two jerked scalp expect- from the are Hairs human hair hand and a Doug Ryen’s right anagen root structures posses ed to (Dr. arm. Hughes’ from Chris collected ma- possess root sheath frequently also 17; see also SEHRT Report Blake’s terial at the hair root end. testing of The results of the DNA were unsuccessful because the there hairs majority of the hairs associated The vast (Dr. Blake’s Re- detected. no DNA was Ryen/Hughes vic- with the of the hands 17; 148,156.) RT port at 6/3/04 broken or cut human hairs tims of either that the focus of Dr. Blake confirmed animal hairs. or to the hair in 2001 was the examination of from “identify, possible, if hairs recovered majority of the hairs asso- Since the vast that Ryen/Hughes victims the hands of the Ryen/ the hands of the ciated with forcefully of hair possessed properties human are either cut or broken Hughes that would be ex- removed from the skin hairs, no evi- hairs or animal there is in a based to be successful PCR pected (10 that these support dence to the assertion analysis genes.” DNA of nuclear 6; Ex. at see Evidentiary Hr’g scalp W from the of an Resp. pulled hairs were 7; HRT 33- Report Dr. Blake’s 6/4/04 assailant or assailants.

37.) 17-18.) (Dr. Report at Blake’s Myers spent days Mr. six Dr. Blake and previous forensic examination From from the examining the hairs removed Myers, by the hairs Dr. Blake and Mr. to find the victims in an effort hands of were possessing anagen hairs roots three (6/3/04 roots. HRT anagen hairs with DNA found and were tested for extraction 157-158.) explained, during Dr. Blake As human DNA was recov- analysis. No hair, of the Dr. this forensic examination (Dr. Blake’s Re- ered from these hairs. Myers looking were Blake and Mr. 17.) port of the victims pulled hairs from the hands Christopher Hughes so and the arm of Testing DNA Re- B. Mitochondrial identify they potentially that could the as- sults fairly obvious reason sailant: “For tutorial, Melton, Terry Dr. Peti- At the are hairs that looking we were for here expert, DNA testi- tioner’s mitochondrial may guy guys. come from the bad or have testing DNA is dif- fied that mitochondrial hairs don’t fall into So cut or broken (4/2/04 testing. DNA 38.) ferent from nuclear (6/4/04 HRT The exami- category.” testing, nuclear DNA HRT With Dr. Blake nation of the hairs anagen high degree to match with a Myers only possible revealed three it is and Mr. (Dr. 17; Report at nucle- sample hairs. Blake’s an unknown specificity 6/3/04 34-37; 2 140-41; HRT HRT sample a reference of nuclear 6/04/04 ar DNA to 281.) SEHRT twins, because, except for This is DNA. the individual. unique DNA is to nuclear detailing pre- report As Dr. Blake’s (4/2/04 contrast, In mitochon- HRT of the and evaluation vious examination hair is inherited DNA found drial there is no evidence explains, hair evidence all maternal maternally and is shared theory that hairs support to (4/2/04 addition, HRT For this rea- No. the Court ordered relatives. testing remaining of the two hairs identi- son, testing DNA is not able mitochondrial post-conviction fied in the 2001 DNA test- conclusively identify the source (one roots, ing having anagen as D-4A ham hairs, exclusionary but rather serves as an right Doug Ryen), from the hand of E-1A tool to rule out certain individuals as (one hair from the arm Hughes) of Chris donor of the hair: possible (one D-4C,9 right hair from the hand (See 04-CV-656, Ryen). Doug Doc. No. DNA inherited [Mitochondrial is] RE Testing, Order Mitochondrial DNA of that siblings the mother. And all 6/4/04.) filed type. mother will have the same August Dr. Melton submit- On type mother will have the same as her report regarding ted a the results of the grandmother mother and her and so (04-CV-656, testing. mitochondrial DNA So, primary forth. difference be- Testing Doc. No. Mitochondrial DNA DNA, tween nuclear and mitochondrial (“Dr. Report Report”).) Melton’s Accord- forensics, applies when it is that it is ing report, the hairs contained unique not a identifier.... It is a mater- Ryen’s Jessica hands were either animal lineage nal identifier.... hairs or hairs from Jessica herself or from (Dr. maternally to her. someone related (4/2/04 19-25.)8 HRT 6-8.) Report Melton’s at Two of the ten DeForest, by hairs selected Dr. Petition- considering post- the extensive After expert, dogs. er’s were from domestic analysis by conviction hair done Petition- (Dr. Report Melton’s at The results expert testimony of Dr. Mel- er’s Ryen, Peggy Ryen, confirmed that Jessica ton, Thornton, Dr. Blake and Dr. Ryen and their maternal rela- and Josh testing. ordered mitochondrial DNA Court tives could not be excluded as the donors expert, authorized Petitioner’s The Court hairs, including tested hairs Dr. De to ten hairs Peter Forest select (Dr. Ryen’s found in Jessica hand. Mel- right that were recovered from Jessica’s 6-8.) at Report ton’s select, control, and left hands and to as a days analysis post-convic- of hair Six animal hair one covered with blood testing plus DNA mitochondrial DNA tion the hair evidence sent from the DOJ DNA conducted to testing of hairs have been (See Laboratory. Order Re Mito- third-par- 6/4/04 claim that a address Petitioner’s 04-CV-656, Testing, ty chondrial DNA Doc. committed the crime.10 This assailant testimony type. with Dr. DNA What the mitochon- 8.Consistent Melton’s tochondrial (6/4/04 however, do, testing verified Dr. Edward Blake HRT may drial is exclude DNA 59), Myers up Mr. Steven testified people sharing the mitochondrial DNA percent population seven of the Caucasian type found in the tested hairs. have the most common mitochondrial DNA acknowledged D-4B was con- 9. It was (6/3/04 sequence. HRT Because mito- testing sumed in nuclear and had no root. DNA is unable to match an un- chondrial Therefore, D-4C, testing the Court allowed of type particu- known mitochondrial DNA to a (6/4/04 telogen degree a with a root structure. acceptable with an hair lar individual certainty, testing positively this is not able to HRT identify Ryen/Hughes assailant of analysis 10. Mitochondrial DNA of one hair contemplated as Circuit murders Ninth total, $2,500. analysis costs In of the four- permitting a or en banc order second succes- $50,000 approximately teen hairs cost which fact, petition. DNA sive In mitochondrial Melton, testing analysis by Dr. includes testing positively identify cannot even wheth- the mitochondrial DNA test- who conducted the victims er hairs are from one of Forest, ing the hairs. maternal share a common mi- and Dr. De who selected since relatives hairs, pulled no Myers and Mr. revealed fully to the concern responded Court has hairs, in the regarding clumps pulled alone by the Ninth Circuit let expressed (Dr. or testing Report of the blond Blake’s DNA hands of the victims. mitochondrial left hand. 140-41; hair in Jessica’s light 17-18; brown HRT HRT 6/3/04 6/4/04 fact, test this Court allowed hands. The from both of Jessica’s hairs petition, to this successive Pursuant testing of two permitted also testing mitochondrial DNA Court ordered Ryen’s right hand and Doug hairs from test- hair evidence. The mitochondrial The Christopher Hughes. one hair from Ryen, Peggy ing results show that Jessica identify another assailant testing failed maternal Ryen, Ryen and Josh and their hairs most that all tested and confirmed excluded as the donors relatives cannot be more of the vic-

likely came from one or hairs, including the hairs of the tested tims. (Dr. Ryen’s hand. Mel- found in Jessica surprising. The not be This should 6-8.) Thus, Petitioner’s Report ton’s bodies, in- adhered to the victims’ hairs merit and is not “clutching” theory has no hands, there was a cluding their because proper basis of an ineffective assistance on the victims and large amount of blood Accordingly, claim. the Court of counsel hair on the debris-ridden large amount of this claim on the merits DENIES Also, each sustained carpet. the victims 2244(b). § under 28 U.S.C. head, causing to the hatchet wounds ground. hair to fall to the clumps of cut the Claim of Court DENIES hair were recov- Both animal and human Ineffective Assistance of Counsel hands of the victims. Just ered from the Regarding Hair Evidence hairs, cut and shed the animal as with This accords deference to the Cal Court to the bloodied vic- human hairs adhered denying decision Supreme ifornia Court the victims came tims’ hands because claim on the merits. 28 U.S.C. Petitioner’s they were carpet when contact with 2254(d). § court’s denial of Pe The state case, floor. In this both dying on the is not con titioner’s claim on the merits thoroughly courts have state and federal by the trary to federal law as enunciated evidence, making reasoned reviewed the in Strick Supreme United States Court of Petitioner’s decisions that the evidence and does not rest on an unreasonable land The Court con- guilt overwhelming. is of the facts within the determination testing DNA has that mitochondrial cludes 2254(d). § As both meaning of 28 U.S.C. other than that someone failed to show Supreme and this the California Court murders. Petitioner committed the found, already expressly Peti Court have “ of Counsel C. Ineffective Assistance extraordinarily vigor tioner ‘received an ” Regarding Evidence Hair I, Cooper 92-CV- ous and able defense.’ 427, 25, (quoting at 8 Aug. 1997 Order ineffective Petitioner claims he received Cal.Rptr. Cooper, 53 Cal.3d 281 counsel’s regarding assistance of counsel 865). trial counsel’s ex 809 P.2d Defense photographic evidence failure to introduce prior background tensive educational Petitioner’s regarding the hair evidence. developed in the litigation experience were satisfy requirements claim cannot does 2244(b). evidentiary hearing before this Court §or The exam- of 28 U.S.C. 2254 I, 92-CV-427, 25, 1997 Order Cooper Aug. in 2001 Dr. Blake ination of the hairs Moreover, and the thrust of at 8. both this Court Petitioner’s attack on his defense found the com- Supreme California counsel’s failure to advocate regarding the guilt bination of evidence of Petitioner’s evidence the hair in the victims’ hands is I, 92-CV-427, overwhelming. Cooper be the same here. The Court therefore DE- Aug. (quoting Cooper, 1997 Order at 8 pursuant NIES this claim to 28 U.S.C. Cal.Rptr. 2244(b). 809 P.2d § Cal.3d 865). Accordingly, Supreme the California claim Petitioner’s is also DENIED be- rejecting decision the merits of Court’s presented cause he could have the legal contrary claim is not to federal and factual previously basis his claim law, nor an unreasonable determination diligence petition. with due in the first facts, since defense counsel was 2244(b). § U.S.C. That hair was recov- deficient, prejudiced nor was Petitioner ered from the victims’ hands awas fact attorney’s pursue his failure to an errone- through- known the defense before and DE- theory. ous This Court therefore (defense (Answer, out the trial. Ex. 103 pursuant NIES this claim to 28 U.S.C. file).) trial Hair evidence was collected 2254(d). § during from the autopsy victims provided for examination to Petitioner’s Satisfy 2. Petitioner Does Not Thornton, expert defense trial Dr. then 2244(b) Requirements §of practicing criminalist and forensic science adjudicated If Petitioner has previously professor. a claim of ineffective counsel assistance of Assuming arguendo that Petitioner Court, pending in this his claim of ineffec- could demonstrate the factual and le- tive of counsel dis- assistance must be gal basis of his claim could not have been 2244(b). § missed. 28 U.S.C. New factual previously diligence, discovered with due grounds support legal of a claim that he required would still be to demonstrate i.e., already presented, has been ineffective claim, underlying the facts if assistance, are not sufficient to evade the proven light and viewed in evi- mandatory requirement dismissal of 28 whole, dence as a would be sufficient to 2244(b). Babbitt, § U.S.C. See 177 F.3d at by convincing establish clear and evidence already 746. Petitioner complained about that, error, but for the constitutional no his defense trial counsel’s in a performance juror him reasonable would have found myriad of claims of ineffective assistance guilty Ryen/Hughes of the murders. 28 of trial corpus counsel his first habeas 2244(b). § U.S.C. Petitioner does not I, 92-CV-427, petition, Cooper Suppl. Pet. guilt meet this standard. The of Petition- 63-147, at all of which were denied on the by overwhelming er was demonstrated I, by Cooper merits this Court. 92-CV- through trial and evidence at reaffirmed 25, 1997 The Aug. Order 7-33. Moreover, DNA post-conviction testing. gravamen of the claim of ineffective assis- testing the mitochondrial DNA failed to same, regard- tance of trial counsel is the theory substantiate his of another assail- Petitioner new presents less of whether Accordingly, ant. the Court his DENIES legal arguments and different or different claim of ineffective assistance of counsel. Babbitt, allegations. factual See 177 F.3d allegations 746. Petitioner made about Testing III. EDTA unreasonably failing trial counsel to advo- (See trial, At a T-shirt regarding cate Petitioner introduced forensic evidence. (Trial 169) I, Cooper Suppl. Pet. at Exhibit found within two miles First, asks that the blood on the Cooper sup- into evidence in the crime scene from belonged presence it to the for the of the claim that t-shirt be tested port of his (Trial 169; 3065; RT Ex. presence real killer. EDTA. The preservative 7587). was never RT This exhibit show that his preservative such a would at trial as incrimi- by prosecution used at the time was not on the t-shirt blood evidence, by solely but the defense. nating placed was rather killings, but result, at trial did not prosecution a As there at some later time. judgment Petitioner’s link the T-shirt to at 1124. Cooper, 358 F.3d of death. conviction and sentence Judges separate concurring opinion, In a subject testing to DNA The T-shirt was fol- and Rawlinson observed as Silverman request. The re- in 2001 at Petitioner’s lows: indicated that testing of the DNA sults says, planted, [Cooper] If the blood was belonged to Petitioner on the T-shirt blood EDTA, a high it will reflect a level of DNA the victims. These tests in the vial preservative agent contained Forensic pursuant to a Joint DNA done highA in which the blood was stored. May Testing Agreement entered on EDTA that the blood level of will show (Joint May dated Agreement DNA directly the vial rather than came from him, proving police that the tam- strong evidence of provide These results with evidence in an effort pered as to the T- guilt. Specifically, Conversely, him. if the blood is frame shirt, report found joint testing DNA EDTA, not contaminated the shirt following: conclusively proves guilt.... Since a shirt found on the a bloodstain on tee guilt quickly can be and defini- Cooper’s of a within two miles of the side road simple tively determined means of Ryen matching Cooper’s home had DNA test, not to have it there is no reason partial profiles matching DNA performed prior to his execution. victims, Doug Peggy two Id. at 1125. matching Cooper’s Ryen. The DNA represented to the Ninth Cir- at random in found on the t-shirt occurs lab could cuit that Dr. Ballard and his frequency of about population that would reveal perform a scientific test Americans, 1 1 in for African 110 million with the blood on the tampering whether Caucasians, and 1 in 12 in 16 million for According to Dr. T-shirt had occurred. Hispanics. million for Western Kevin Ballard’s declaration: Physical DOJ Evidence (Supplemental Services] NMS Medical [National Sept. 2002 at Report Exam dated the myself specifically perform can overwhelming evidence Faced with the EDTA whether the test determine confirming guilt Petitioner’s obtained previ- ... had been blood on the T-shirt testing, agreed-upon post-conviction the ously containing in a tube stored test to the Ninth Circuit Petitioner claimed EDTA. had been the blood on the T-shirt (Petitioner’s Application to the Ninth Cir- repre- planted. Based on the last-minute cuit, 3,10.) No. 42 at Appendix regarding Petitioner sentations made remand, complied this Court with the en banc On testing capabilities,

scientific to test the T-shirt for concluded: Ninth Circuit’s order panel of the Ninth Circuit portions EDTA stained of the T-shirt. levels of to determine This elevated Now, tampering occurred. over proposed by whether method was Dr. Ballard and remand, year process has one after LeBeau, by Mr. Marc Chief of the Chemis- “quick,” promised. not as Petitioner been try FBI in Laboratory Quanti- Unit of the Nevertheless, supported the tests have not co, (04-CV-656, Virginia. Doc. No. theory tampering. of evidence ¶ 3; Ballard Deck Doc. No. Ex. by Petitioner’s chosen ex- performed Tests ¶¶ 7-10.) LeBeau Decl. Dr. Ballard Ballard, pert, Dr. failed to find elevated agreed always it helpful “while is if it subject in levels of EDTA stain. possible is to measure the amount of These results confirm that Petitioner’s blood,13 actually necessary it is because merit, tampering theory supple- lacks ways there are to determine whether or already overwhelming evidence ment the findings meaningful, not EDTA are specifi- in the of the guilt of Petitioner’s murders cally through appropriate un- use of Ryen family Hughes. Christopher stained specimens control from the same (04-CV-656, evidence item.” Doc. No. Development A. of the EDTA Test- ¶ 3.) Ballard Deck Because blood does not ing Protocol EDTA,14 naturally contain the EDTA 2, 2004, April the Court held a tutori- On levels in the background stain presented parties al which ad- material If comparable. should be testing. par- EDTA Dr. Ballard dressed EDTA in greatly found the stain exceeded in ticipated the tutorial for Petitioner and the amount of the EDTA found in the Steinberger participated Dr. Eva material, background Petitioner and Dr. Respondent. experts tutorial for Both tes- may Ballard advanced that it a support tified that the known concentration in one case, theory planting. this there purple-topped microliter of blood from a appeared adequate to be an area for con- (See nanograms.12 tube11 was 1300 4/2/04 T-shirt, testing trol so that a control 54,11.22-25; 113,1. HRT comparison method of of relative levels of on the Based recommendations theoretically EDTA could be done consis- parties, adopted the Court a “control” tent the Ninth Circuit order to con- testing method of which the amount of testing. duct EDTA EDTA in a detected stain would be com- The on the judgment Court reserved pared to the amounts of EDTA found of the test results under Dau- admissibility various control swatches from other non- liter, 11. alleged theory tampering larly, a a microliter is one millionth of a or Tr., involving purple-topped (Tutorial blood from tube. one thousandth of a milliliter. (04-CV-656, 8.) Following Doc. No. 97 at 55,11. 11-24.) April murders, arrest for the Petitioner’s blood was purple-topped drawn into a tube for the San ''eyeball” Dr. Ballard had offered to (Id.) County Bernardino Sheriff's Crime Lab. (4/2/04 subject in a volume of blood stain. purple-topped only This tube contains EDTA reasons, HRT Bal- For obvious Dr. (Id.) preservative. as San Bernardino “eyeball” lard’s measurement of blood vol- County crime Sheriff’s lab records do not acceptable ume Court. was not to the (Id.) receipt any samples. reflect the of other naturally occurring 14. a EDTA is not mole- nanogram gram, 12.A is one billionth of a a synthetic microgram cule. It is a chemical that was gram, one millionth a a is of and (4/2/04 54.) milligram gram. patented is one thousandth of a Simi- in 1935. HRT Inc., 4, hearing August At Pharm., August 2004. the on 509 U.S. Dow v. Merrell bert 2786, 2004, par- the 13, the ordered that 579, 125 L.Ed.2d Court S.Ct. (1993), briefing hearing a the EDTA regarding and and confer and ordered ties meet admissibility EDTA evi- to the back to the Court on protocol report address and (See 04-CV-656, Nos. 95 & Doc. dence. 24, The Court held addition- August 2004. that maintained vigorously Respondent revise EDTA al status conferences to the Daubert. ran afoul of any testing EDTA August testing parties with the on protocol par- briefing was submitted After 27, 25, 26, September 3 and 2004 and and 2004, ties, 17, the Court denied on June 7, testing proto- EDTA finalize the motion re- Respondent’s prejudice without testing procedures. EDTA col and discuss EDTA evi- inadmissibility of the garding experts consulted with for Petitioner rule right to later and reserved dence development protocol. of the For exam- testing admissibility of the EDTA on the 26, August on ple, at a status conference (04-CV-656, Daubert. evidence under 2004, a provided parties with Court Doc. No. testing order and copy proposed of its developed was protocol The EDTA just it go through could “[w]e offered that a three- the Court parties and over ... get your and comments right now Court, By invitation period. month (8/26/04 209,11. it.” incorporate HRT [and] protocol on proposed Petitioner filed 17-18.) and asked for Petitioner declined 2004,15 4, Respondent filed its June day proposed an to review additional 29, Respondent 2004. opposition on June he could consult Drs. De order so that with testing proposed that Petitioner’s objected make that Forest Ballard “to sure to contain blood appear areas that “any (8/26/04HRT they any see issues[.]” don’t and, if tested previously been have 1-3.) time, At that also 11. issue any previ- stains possible, the remainder to the buffer solution appropriate arose as (04- vastly ously was overbroad. tested” or testing, phosphate to use methanol CV-656, The No. 106 at Court Doc. (“PBS”). any Before deci- buffered saline testing was not expansive agreed such solu- regarding sion was made buffer theory. own under Petitioner’s warranted tion, requested counsel Petitioner’s that all theory Petitioner’s was Because Dr. granted permission consult planted, containing his blood were stains (8/26/04 207,11. On Ballard. HRT his known blood one of testing telephonic con- August DNA another post-conviction test- stains from the disprove oppor- Petitioner’s ing parties confirm or which the had should ference in order, guilt. proposed on the tunity to comment explained counsel that PBS to submit The Court ordered Petitioner appropriate rather methanol was the than protocol proposed detailed revised more buffer, with his on his consultations based filed testing, for EDTA which Petitioner actually De ex- experts: Forest] “[Dr. was then July Respondent 2004. on issue about the methanol pressed concern Re- response, which ordered to submit like, gave long and he me a discus- and the July 2004. Petitioner spondent filed on chemistry it, enough it and was Respondent’s response sion about reply filed a addition, the Court authorized thirty thereafter. authorized over hours $12,063 prior to DeForest. to consult with Dr. Ballard for Dr. twenty hours additional June 15-18.) (8/27/04 2, week, 11. Dr. De HRT Forest informed the Court for me.” recommendation, the Court Based on this via fax that he did not to wish continue appropriate the buffer adopted PBS as working on this case based on the court- protocol. for EDTA solution the protocol. ordered Dr. De Forest stated (sic) agree that he would “not do replete examples The record is with sampling according protocol” to this represented Petitioner’s counsel to where that “unless the freedom and [he] ha[d] consulting that he was with his the Court flexibility to proto design sampling protocol of the EDTA the experts on the details (See, 7, HRT ll. e.g., conjunction col. 12-19 in a represent- with criminalist 8/27/04 (“I’d ... De on have to defer to Forest the ing prosecution, not wish to [he] d[id] Ballard.”); ... Dr. HRT that and (04-CV-656, 5/12/04 Ltr. continue.” from Dr. Pe- 45,1. 25; 202,11. 7-11; HRT 8/26/04 9/3/04 3, ter R. Sept. De Forest to Court dated HRT at 2004.) 2004 filed under seal on Nov. Following dialogue this extensive with Therefore, 7, 2004, September on the 27, 2004, parties, Aug. the on the Court concerning held a status conference Court testing detailing issued an EDTA order expert the selection of another and labora procedure testing the for EDTA to be tory part to conduct the extraction original on the In the conducted T-shirt.16 conference, testing. During that the order, EDTA criminal- testing Petitioner’s permitted .the to parties suggest Court ist, Forest, designated Dr. De to Peter was choosing alternative of their but labs stat the area of stain appropriate select 6G agreement, ed that of an “[i]n absence testing appropriate select the con- to (sic), lab, reputable I will choose Selmark perform and to trol areas around 6G (9/7/04 6,ll.12- just prep.” do the HRT (See 04-CV-656, EDTA Test- extraction. 14.) time; Respondent At that stated “we 2004.) ing August filed Order (sic). objections have no to Selmark We previous DNA Court selected 6G because well-qualified it to and re consider be testing had indicated that 6G contained (Id. spected lab.” at Petitioner also sole, major Petitioner’s blood as the or “very agreed highly quali Cellmark is testing nuclear DNA donor and further (Id. “very high reputation.” fied” awith potentially could be avoided. The Court at 1. Dr. Lewis Maddox of Cell- any testing should resolve recognized designated mark was to conduct the ex theory tampering, which as- Petitioner’s traction, Gary Dr. Ballard and Dr. with serts that all blood from Petitioner found necessarily planted. Suizdak, on T-shirt is Professor and Senior Associate Spectrometry Director of the Mass Lab working parties After for three Institute, to do Scripps sepa Research develop testing months to the EDTA or- (Id. testing. Sep EDTA rate On der, testing scheduled the Court 7, 2004, the tember issued begin September 2004. On the eve- Testing addressing amended EDTA Order Friday ning September experts replacing Dr. De testing begin following change before DeForest, recognized protocol during period as “unusu- 16. At no time this three-month suggest pre- did Petitioner the inclusion of ally July detailed” in his letter dated sumptive testing part 04-CV-656, blood as of the EDTA (See De Forest Ltr. dated testing protocol, even for the control areas. 7/20/04.) fact, time, expert at the Dr. completed, was After the extraction the ex- to conduct Forest with Cellmark shipped containing samples vials Peti- traction, retaining Dr. Ballard as and Dr. to conduct Dr. Ballard and Suizdak to EDTA for the test- expert chosen tioner’s The test re- testing. EDTA double-blind ing. on Octo- were submitted to the Court sults issued an order ber 2004. The Court the EDTA Test Administration of B. pro- EDTA results and regarding the test Maddox, 13, 2004, Dr. Drs. Ballard reports Cellmark’s vided the September On On October parties. and to the Respondent informed Suizdak Maddox and 29, 2004, Respondent filed in Petitioner consumed that area 6G had been Court EDTA analyses of the test respective their was not suitable for testing and prior 5, 2004, Respon- November results. On testing requested the Court’s EDTA analy- response filed a to Petitioner’s dent Dr. Mad- The Court ordered guidance.17 and Petitioner of the EDTA test results sis dox, with Mr. Steven in consultation analysis Respondent’s to response filed a stain Myers,18 appropriate to select on November the EDTA test results testing EDTA in prepare it for area and to 2004. EDTA with the Amended Test- accordance (See 7, 2004. September filed

ing Order 15, 2004, the held a November On 04-CV-656, post- Prior Doc. No. testing results hearing concerning EDTA by Petition- testing DNA done conviction parties agreed of the T-shirt. Respondent showed expert er’s to determine testing required DNA was with and 6K “were consistent cut-out from areas 6J whether the main stain fabric majority Cooper as a clear having testing Kevin EDTA contained Motion for con- (Resp’t Opp. Respondent Petitioner and contributor.” blood.20 ¶ 14.) protocol Ex. A Testing, currently proposed Re EDTA filed a Order Maddox, Therefore, testing in on November 2004 and Dr. consultation DNA on November parties responses area between filed Myers Mr. selected an both (Id.) 2004. On November and 6K.19 stains 6J having expert post-conviction experts Petitioner’s DNA as also 17. Petitioner's major donor. as the that area 6G had been consumed knew faith, good prior testing. both sides mis- logical a choice. Because Peti- 19. This was available. takenly thought that 6G was still plant- only claim is that his blood tioner's ed, relevantly theory be most ex- this would expert declined fund a third 18. The Court by testing contain plored an area known to following Dr. DeForest's on the short notice previ- Dr. Ballard has Petitioner's blood. As participate. This additional decision not testified, ously "Once EDTA is extracted from approved part of the expenditure was not as longer sample, sample can be used no Court, budget required to be submitted to testing.” Pompey, No. S-1594- for DNA See Capital Committee and the the Ninth Circuit slip op. at 11. already had Judicial Council. Petitioner “very highly quali- agreed to Cellmark as a did inform this Court or 20. Dr. Ballard “very respected” substitute previously well fied” what he had tes- the Ninth Circuit 15), (9/7/05 testing Pompey 1. and Dr. Maddox of cannot HRT DNA tified to —that following participated performed sample More- EDTA Cellmark selection. be S-1594-89, over, op. Pompey, slip analysis. Maddox and No. the stain selected Dr. Myers previously been identified Mr. had Not The EDTA Test Results Do C. hearing about telephonic held a Theory Support After discussion protocols. DNA proposed Tampering hearing telephonic parties, with the Summary of the EDTA to November was continued Test Results further con- parties to allow order 13, 2004, per- Cellmark September On experts. On No- respective their sult with on the T- procedures formed extraction proposed on the based vember Sep- in accordance with Court’s shirt Protocol for filed a the Court protocols, 7, 2004 order. The extracts were tember Main Stain Fabric Testing of the DNA from a stained prepared PBS buffer Myers, Re- and Control. Steven Cut-Out from five control area of the T-shirt and Taylor, Peti- and Marc expert, spondent’s appear areas of the T-shirt that did the DNA test- expert, performed tioner’s (04-CV-656, Doc. No. be stained. ing. pre- A T-shirt was Report Control with the Court’s or- pared compliance testing, of that Peti- From the results (Id.) T-shirt, that Control ex- der. From as a contributor cannot be excluded tioner human using a blood prepared tracts were subject DNA extracted from EDTA, a human blood containing stain Ryen, Ryen, Jessica Peggy cut-out21 while EDTA, and an area that was stain without Ryen, Hughes and Chris Ryen, Doug Josh (Id.) A human blood. not stained with possible contribu- are each eliminated as reagent blank control that con- PBS buffer (04-CV- profile. interpreted tor of the prepared. no EDTA was also tained Ex- Physical Evidence Doc. No. total, The ex- there were ten extracts. Report Report of Monitor- divided, amination specimens coded tracts were 12/23/04.) and sent to the to conceal their contents testing filed ing of DNA

experts. were as follows:

Dr. Ballard’s results Report filed profile Physical Examination subject partial Evidence stain revealed 21. 12/23/04.) interpretable results at four STR loci 04-CV-656, (See No. amelogenin. Doc. (04-CV-656, 22, Doc. No. Dr. Ballard’s was without the benefit of Dr. Ballard’s Test Results at testing, method for EDTA as Dr. Ballard requested testing EDTA method- his Dr. Suizdak also conducted EDTA test- 27, ing specimens. on the ten Dr. ology Suizdak be sealed.24 On October Suizdak, 203; 23, Although 24. problem Dr. an Associate Profes- HRT at 11. One Spectro- sor Senior Director of the Mass many encountered in this case was while labs metry Scripps Lab at the Research Institute Scripps possess like the Research Institute (04-CV-656, 204), (cid:127) qualified Doc. No. was in test, equipment for the there are no other spectrometry, mass he had never done EDTA regularly perform type scientists that this testing analysis agreed participate testing. (8/27/04 goal publication. based on the subject that the stain testing vealed the opposite: his EDTA completed he had after (1) to the than measurements of EDTA lower contains level and submitted (2) report Court, T-shirt, retracted his Dr. Suizdak most controls (04-CV- contamination. EDTA based on than the level of EDTA dramatically lower Gary Ltr. from Dr. Doc. No. tampering involving scenario expected under on Octo- filed seal Suizdak Court purple-topped from a tube. blood 2004). sig- had Dr. Suizdak found ber Ballard, approximately to Dr. According levels, of EDTA nanograms, nificant present of EDTA were nanograms reagent blank control sam- buffer PBS subject This amount was stain. blood con- EDTA the known zero ple where samples for all of the the second lowest no reagent buffer contains trol. PBS controls, T-shirt. For the taken the car- properly If the test had been EDTA. average amount of EDTA found was out, reagent blank the PBS buffer ried range a from 16 to nanograms, 173 found to sample should have been control subject The EDTA in the nanograms. Accord- nanograms of EDTA. contain zero average for all five blood stain below is Respondent’s Dr. ing to both Suizdak on the T-shirt. This similari- control areas Ph.D., Lee, Terry presence D. expert of EDTA found in the ty the level between indicates sample in the control of EDTA and the level found in the background like- samples were most that Suizdak’s Dr. subject support does not Petitioner’s stain in by present EDTA ly contaminated As theory planted. that the blood was Analysis testing. (Resp’t prior lab to his to the Ninth Cir- represented Results filed Oct. of Test EDTA cuit, ... will planted ¶ blood was it “[i]f “once explained, As Dr. Lee Lee Deck Cooper, of EDTA.” contaminated, high reflect a level way no there is sample a is flip result.” 1124. But the side of an accurate F.3d at go and obtain back (Id.) Because, con- coin, in of valid by Judges the absence Silverman as observed rely on specimens, concurrence, the Court cannot trol that “if their is Rawlinson in results, it will focus its anal- Dr. Suizdak’s EDTA, by is not contaminated the blood chosen of Petitioner’s ysis on the results conclusively proves [Cooper’s] the shirt expert, Ballard. Dr. Peti- place Ballard’s results guilt.” Dr. that second scenar- squarely tioner within Analysis Testing EDTA Results subject stain is The level in io. EDTA expert post-conviction Petitioner’s DNA elevated, but is instead lower than 6J and 6K the area between identified result, control areas. As a of most of the majority contrib- Petitioner as the to have Petitioner’s the- tampering the test refutes (“sub- stains. This stain area utor those ory. stain”) Ballard, by Dr. ject was tested subject dra- from the stain The results five control areas around along with from the matically from the results differ testing subject stain. The conducted T-shirt, was “plant- on which blood Control Ballard, incon- Dr. is expert, Petitioner’s On the purple-topped a tube. ed” from tamper- theory Petitioner’s sistent with T-shirt, purple- from a blood Control correct, theory ing. If containing preser- EDTA as topped tube of EDTA spiked would be levels there “planted” in a stain similar vative was on the shirt relative subject stain sample, In that subject stain. size to the EDTA found in back- levels nanograms found testing re- Dr. Ballard material. Dr. Ballard’s ground EDTA, “planted” placed blood er’s blood had indeed been expected. as unnaturally, T-shirt reflects an EDTA T-shirt on the control there should be level great as as the level of of EDTA similar to—not ten times dwarfed level —that (110 subject “planted” stain found in the EDTA detected blood on the Con- (cid:127) contends, If, ng). as Petitioner Petition- trol T-shirt.

Pr. BaHard’s EDTA Test Remits

(in rianograms) T-shirt, The testing pro- controls built into this Control as well the area as stained cess confirm Dr. Ballard’s results. The EDTA, with blood without had minuscule reagent PBS buffer blank control contains levels of 7 nanograms, EDTA—6 and re- EDTA, no and Dr. Ballard found none. spectively. specimen created from (Resp’t Analysis EDTA of Test Results EDTA blood stain with had 1100 nano- filed Oct. Lee Decl^ The spe- grams, which represents recovery 84% cimens from the unstained area of the testing EDTA that has in that admits of EDTA expected amount (Id.) for admission in only controls confirm been offered two sample. These in the of EDTA T-shirt Simpson, the levels v. J. People cases: Orenthal accurately measured. Jersey Pompey, New v. Josh State No. 1997). In (N.J.Super. April S-1594-89 data, concludes the Court the test From ex Pompey, the EDTA test results were subject stain of EDTA in level scathing after criticism EDTA cluded the court nanograms. Comparing the is 110 that for the subject credibility and scientific stain of Dr. Ballard’s level of concludes the Court specimens, control methodology: Ballard skewed “[Dr.] tampering. no reliable evidence there is data, sig obscured the presentation of his EDTA Similarly, compares one when findings changed his nificance subject high to the level stain level in tampering hypothesis suit defendant’s “planted” blood preserved present rendering “his ultimate theory[,]” conclu T-shirt, ng, tampering the Control at 29. In slip op. Id. sions worthless.” short, probable. less even becomes case, neither side raised the O.J. Simpson subject stain is of EDTA ng strategic pur challenge for a scientific tampering. to show significant admissibility under the poses, its although unnecessary given Pe- testing is Further Kelly/Frye stan more lenient state-court re- from these inability to show titioner’s Lee, Henry See C. question. dard was tampering theory. support for his sults the Evidence, Tirnady, Blood Ph.D. & Frank finds Petitioner’s Accordingly, the Court Way Revolutionizing DNA is We How merit. to be without theory tampering (2()03)[Blood Evi Crimes 279-80 Solve Resp’t’s Ex. Daubert dence (Suppl. ] Testing of the Falls Short D. EDTA 2005.). 18, Brief, April filed Doc. 375 No. Reliability Set for Standards of and measurement While extraction Rules of Daubert and the Federal theoretically may be sample EDTA a Evidence EDTA in the ubiquity of accomplished, of levels Although the absence elevated any meaningful in prevents environment Petitioner’s support of EDTA does of an terpretation significance “ele of tampering, the Court theory of evidence EDTA within a forensic level of vated” testing that EDTA additionally concludes shortcoming is underscored sample. This reliability of to be sufficient indicia lacks EDTA acceptance of foren by the lack of Dow Daubert v. under Merrell admissible community. testing in the scientific sic 579, 589, Pharmaceuticals, Inc., 509 U.S. no that there has been concedes (1993). 2786, L.Ed.2d 125 469 113 S.Ct. subject on the publication review or peer as an testing presented EDTA When tampering testing prove EDTA of on the Ninth Circuit option to the en banc (04-CV-656, community. Doc. scientific execution, promoted as a it was eve of ¶ 8.) Lacking any 51, Decl. No. Ballard easily basic, that could be rehable test testing that EDTA is evidence to show cul- to establish Petitioner’s administered determining of whether reliable means “once for all.” in the murders pability sample planted, has been blood repre- at 1124. Cooper, 358 F.3d These EDTA evidence concludes that of simplicity regarding sentations Daubert, at 509 test. U.S. fails the Daubert testing in the forensic context EDTA 590, 113 2786. S.Ct. misleading.

942 Pharms., Inc., (9th 1311, and the Federal

1. Daubert Rules of 43 F.3d 1316 Admissibility Cir.1995) (“Daubert II”) (“[T]he Evidence Control party Testimony Expert presenting expert show that the must expert’s findings are based on sound sci- In Daubert v. Merrell Dow Pharmaceu ence, require objective, and this will some ticals, Inc., 579, 589, 509 U.S. 113 S.Ct. independent validation expert’s (1993), origi L.Ed.2d 469 a case 125 methodology.”). district, the nating from this United States Supreme Court held Federal Rule of Daubert, prong As to the first rele primary Evidence 702 commands the focus vance means that the evidence will assist evaluating admissibility courts the trier of fact to understand or deter testimony. provides: Rule 702 expert “[i]f Daubert, mine a fact in issue. at U.S. scientific, technical, specialized or other 591-92, 113 S.Ct. 2786. The evidence will knowledge assist trier fact to logically must advance a material aspect of understand the evidence or to determine a II, party’s case. Daubert at 43 F.3d issue,” expert “may testify fact in there “Encompassed the determination to.” Fed.R.Evid. 702. “Expert testimony expert testimony of whether is relevant is is pursuant admissible to Rule 702 if it is helpful jury, whether it is to the which is Elsayed both relevant and reliable.” the ‘central concern’ of Rule 702.” El- University, Mukhtar v. State California Mukhtar, sayed F.3d 1063 n. 7 1063(9th Hayward, 299 F.3d Cir. (citation omitted). “Daubert adds [also] 2002) Daubert, (citing U.S. gatekeeping inquiry that the must be ‘tied 2786). S.Ct. ” particular the facts’ of a ‘case.’ Kum trial “gatek Co., court acts as a Carmichael, ho Tire Ltd. v. 526 U.S. eeper” expert testimony to exclude 119 S.Ct. 143 L.Ed.2d 238 relevancy reliability does not meet the (1999) Daubert, (quoting 509 U.S. at requirements. Elsayed threshold Mukh 2786). 113 S.Ct. tar, 299 F.3d at 1063. “A trial court not The proposed expert testimony must only in determining has broad latitude satisfy hurdle, reliability, a second before reliable, an expert’s testimony whether is it can be admitted. “The trial court must deciding but also in how to determine the ‘gatekeeper’ ‘junk act as a [also] to exclude 1064(cita testimony’s reliability.” at Id. science’ that not does meet Rule 702’s omitted); tions Hangarter see also v. reliability by making prelimi standards Co., Provident & Accident Ins. 373 Life nary expert’s determination that the testi (9th Cir.2004) (“[F]ar 998, F.3d 1017 Mukhtar, mony Elsayed is reliable.” 299 requiring judges trial to mechanically ap F.3d at 1063. “Rule 702 demands that ply the Daubert ... factors Kumho Tire scientific, expert testimony relate to tech heavily emphasizes judges that are entitled nical specialized knowledge, or other which to broad discharging discretion when their does not specula include unsubstantiated function.”) gatekeeping (quoting United subjective tion and beliefs.” Diviero v. (9th 1160, Hankey, States v. 203 F.3d 1168 Co., Uniroyal Goodrich 114 F.3d Tire Cir.2000)). proponent “It is the of the (9th Cir.1997) Daubert, (citing 509 U.S. expert proving who has the burden of ad 2786). 590, 113 at S.Ct. missibility.” v. Lust Merrell Dow (9th Pharms., Inc., provides following 89 F.3d Daubert non-ex- Cir. 1996); see Daubert v. Merrell guide Dow clusive list of factors to the assess- ultimate likelihood of reliability tamper- of scientific evi- issue—the ment of the (See, 12-16.) (1) theory a scientific or HRT 11. ing. e.g., dence: whether 4/22/05 (and been) tested; has grossly can be This the level of technique understates scru- (2) theory technique Daubert, or has tiny required by whether compels which review subjected peer publica- been and beyond the Court to whether expert look (3) tion; potential or rate of the known testimony merely can “assist” the trier of and error and the existence maintenance fact, expert and confirm that uses a controlling technique’s op- of standards scientifically method. rehable valid It (4) eration; technique is whether reliability, that into inquiry, is second that Daubert, at generally accepted. 509 U.S. dispositive in case. Petitioner’s pro- is this Tire, 2786; 593-94, see Kumho 113 S.Ct. unquestion- posed testing EDTA evidence 1167(“[Daubert] at 119 S.Ct. U.S. ably set by falls short of standards made that its list of factors was clear reliability. Daubert for not definitive. In- helpful, meant to be Only Exception, a. With One No deed, necessarily not all those factors do has Court Admitted Testi- Either in apply every instance which the even mony EDTA of Dr. Ballard or his Test testimony is chal- reliability of scientific Results lenged.”) This Court is not alone its dubious analysis relevance Court’s testing. date, To view EDTA forensic reliability expert testimony is “vital the sole case in EDTA test which results25 to ensure accurate unbiased decision- People been is v. have admitted Orenthal Elsayed trier of fact.” making by the (4/22/05 17-19.) Simpson.26 II. James Mukhtar, goal at 1063. The is to 299 F.3d There, participate Dr. Ballard did di- expert employs “make that an ... certain (4/2/04 rectly testing. in the EDTA HRT in the the same level of intellec courtroom only 92 11. In the case where Dr. practice tual that characterizes i’igor offered, Ballard’s results testing New expert (quot relevant field.” Id. Jersey Pompey, Jersey v. the New Josh Tire, 152, 119 ing 526 U.S. S.Ct. Kumho rejected Superior soundly both the 1167.). reliability lacks either If evidence credibility reliability of Dr. Ballard and the relevance, or it must be excluded. testing ruling of EDTA EDTA Pompey, evidence not admissible. Testing Ballard’s EDTA Does Dr. No. S-1594-89. Satisfy the Not Criteria Relia- bility Forth in Daubert Set case, the Simpson In the O.J. FBI at- tempted to a test that could differ- create argued repeatedly has preserved from fresh blood ana- entiate under is only inquiry this Daubert Court’s content, its witness lyzing EDTA but was EDTA testing Dr. Ballard’s will whether at trial.27 by in called the defense Blood resolving the trier of fact the “assist” report ing. the the 25. The Court has reviewed of The court notes that Petitioner concedes OIG, entity Citric investigatory that no court has admitted Oxalic or with- non-scientific (See Justice, testing Acid into evidence. Pet’r’s Ex Department the of and has con- Testing Budget Request Parte Further for provides cluded that it no such endorsement 7, 2005.) filed Jan. under seal reliability of the of Dr. Ballard and scientific testing. EDTA points to the the also Office of ("OIG”) Inspector report "vali- General as longer testing. 27.The FBI conducts EDTA no validity of the forensic EDTA test- dation” of 944

Evidence, In at 278-79. contrast to this the court “with the impression that Ballard case, objection there was no raised to the omitted the information simultaneously EDTA admissibility although of the test maintain, magnify disguise import had been concerned that it prosecution allegedly significant of his findings of ' was inadmissible under the state-court S-1594-89, Pompey, EDTA.”30 No. slip Kelly/Frye standard. Id. at 279-80.28 No op. Pompey 14. The court Dr. accused methodology review of the scientific of “selectively Ballard of adher[ing] to a sci testing par- EDTA was conducted entific method” and that agen he “had an or the Court in the O.J. case: “[T]he ties da to effectuate support outcomes that testing protocol ... was never called into defendant’s tampering theory.” Pompey, question. simply It was a matter of inter- S-1594-89, 21, 19. slip op. No. Id. 29 pretation.” Id. at 280. results of “[T]he n For example, Pompey, one of the permitted the tests both sides to claim a stains in which Dr. Ballard found an “ele- victory.” measure of Id. vated” EDTA solely level consisted of the only In the other case where the admis- blood, victim’s which had never been pre- sibility EDTA of test results has been purple-topped served Pompey, tube. considered, Jersey Pompey, New v. Dr. S-1594-89, slip op. Similarly, No. at 7. Dr. Ballard testing conducted the and claimed Ballard was criticized for testing two “forensically to have found significant” together, stains neither of which had been amounts of EDTA in several blood stains. alleged linked to the perpetrator, pro- However, Pompey strongly court re- nouncing aggregated EDTA number failing “provide! buked Dr. for ] Ballard forensically as significant. Pompey, a simple, scientific context within which to No. compare findings” S-1594-89, measure and leaving slip op. at 9-10. Dr. Ballard standard, Kelly/Frye litigation, 28. The state-court they developed 17 or whether have 24, 30, Cal.Rptr. opinions expressly Cal.3d 130 549 P.2d their purposes for the ” States, (1976); Frye testifying.’ v. United advisory 293 F. Fed.R.Evid. 702 com- (D.C.Cir.1923), rigorous (amended 2000) is less than (quoting mittee’s notes Dau- Pharm., Inc., Kelly/Frye, proponent Daubert. Under "the bert v. Merrell Dow 43 F.3d (9th Cir.1995)). evidence derived a new light scientific meth- In of this odology satisfy prongs, by genesis testing, must three show- EDTA forensic the Court first, ing, reliability that the weighs heavily new tech- concludes this factor also nique gained general acceptance against has Petitioner. second, community, relevant scientific expert testifying qualified to that Pompey effect is 30.The court was troubled Dr. so, and, third, explain do that correct scientific Ballard’s failure to the units for his case, procedures particular were used in the case." various calculations. In this Dr. Ballard People Roybal, provided v. 19 Cal.4th certain standard "concentrations” (1998). Cal.Rptr.2d 966 P.2d 521 for EDTA in blood at the tutorial. results, report of his an "EDTA concentra- testing engen- 29. That heading appears forensic EDTA tion" without further solely explanation. Only dered and noticing impor- cultivated within the context after litigation reliability disparity discounts the presented tant in the units at the technology Advisory (ng/L) employed under Daubert. The tutorial and the units in Dr. specify (ng/mL) Notes to Federal Rule of Evidence Ballard's results was the Court able may that a court also consider "whether ex- to discern that the "EDTA concentration” ref- perts testify ‘proposing are to about matters erenced in his denoted the results concentra- fluid, growing naturally directly and out of their tion of EDTA in the buffer not the they independent research have conducted of EDTA concentration of in blood. rate, heart reliably person’s measure a can aggregated numbers the not normalize did However, breathing. Pom multiple pressure, stains. and for the blood to account S-1594-89, op. at 9-10. slip to No. is inadmissible show pey, polygraph a test See, e.g., veracity. United person’s analytical methods Calling Dr. Ballard’s Ramirez-Robles, 1234, 386 F.3d v. States unreliable,” Pompey and “haphazard 1247(9th Cir.2004) (affirming district court conclusions: following stated court citing its testimony, polygraph exclusion (gas chro- sum, science he used valid In nature”); States United “highly ob- influential to spectrometry) matography/ mass Benavidez-Benavidez, unscientifically 217 F.3d product, glibly a v. tain Cir.2000) sources other (9th EDTA from (affirming district court’s dismissed tubes, and a took purple-topped than exculpatory potentially decision to exclude that is a conclusion leap to gargantuan results); v. Cor- United States polygraph science, in the rec- facts unsupported Cir.1997) (9th doba, 225, 227-28 104 F.3d sense. or even common ord nature” problematic “inherent (noting the polygraphs). his presentation of Ballard skewed the “in- equally an testing presents EDTA his data, significance of obscured the Cordoba, 104 problematic herent nature.” hypotheses his changed findings testing, polygraph at 227-28. Like F.3d theory. Bal- tampering defendant’s suit testing of EDTA cannot be the error rate con- his did not demonstrate lard widespread presence of The determined. on a reliable predicated clusions can never environment be EDTA in the Rather, equiv- his constant foundation. EDTA as the source rea- ruled out his method of ocations discredited addition, In specimen. rendered ultimate and thus detected soning expo- history specimen’s conclusions worthless. of each since the unknown, is EDTA sure environmental S-1594-89, 29. slip op. No. Pompey, against no established standards there are sharp disagreement Pompey court’s As compared. can a a test result be which methodology con- Dr. Ballard’s with reliably result, never factfinder can own strengthen this Court’s clusions EDTA in presence of from the conclude admissibility of EDTA about the doubts There are tampering occurred. stain that diligent this case. The Court’s testing in testing alleged “sci- that bind through industry this standards to wade no efforts many any- elicited If protocol. of EDTA test ence” has to a certain scientist expressed by the as concerns those pronounced same is more thing, problem this Pompey. court field, Dr. Ballard testing where the EDTA only individual almost the to be appears automatically ad- test scientific is A test.31 type of performs this test who example, polygraph For missible. (04- testing.” perform proposed EDTA Dr. Initially, declined to fund the Court CV-656, Order filed No. Court (04-CV-656, Doc. Nos. expert. Doc. as an Ballard 6/10/04.) only provid- response, name In filed Court's Order 6/10/04 Vickery at NMS was Michael 6/17/04.) ed Petitioner declining Dr. as to fund Ballard works, with a com- a scientist where Ballard requested that expert, the Court (04-CV-656, Doc. college degree. munity independent ex- provide "an Aug. 2004 at Court’s Order filed No. laboratory Dr. not affiliated with pert and qualified that is or law enforcement Ballard that The Court concludes the and measure- is of limited to general interest the reliably ment of EDTA cannot be used population. to persuaded Court is not hand, decide the ultimate issue at that explanations these allow the Court to probability tampering. Under the Advi- overlook the fact that Dr. Ballard’s meth- sory Committee notes to the odology undergone Federal has no scientific scruti- Evidence, may Rules of a court weigh ny. Dr. this Ballard’s of EDTA testing use is expert new; disconnect—“whether has un- not EDTA testing was utilized in the justifiably extrapolated from an accepted Simpson ago. O.J. trial decade It defies premise to an unfounded conclusion”— our experience modern to term science against admissibility. years Fed.R.Evid. 702 ad- from ten ago as “new.” The Court (amended visory 2000) that, committee’s telling trols, to EDTA in ascertain whether the reliable prevent variables several benign accurately a stain resulted from present of in that number terpretation (See 04-CV-656, with that sam environmental sources. tampering answer whether ¶ 11.) 3, 23, Phillips No. Ex. ubiquitous in Doc. Decl. EDTA is has occurred. ple Petitioner, 51, (04-CV-656, According may EDTA also Doc. No. the environment. ¶ 3e.) from of the simple “migrated”33 chemi have one area Decl. It is a Ballard another, muddling background material to applications. numerous compound with cal further the EDTA prevent interpretation of products EDTA is used in food (See 04-CV-656, 51, Bal- laundry as levels. Doc. No. rancidity; agents such cleaning 4(“Can testing you EDTA tell and lard Decl. detergent, dish and bathroom and course cleaners; got care how the EDTA there? Of personal tile and kitchen not.”).) lotions, short, a cosmetics, EDTA not bear hand does such as products This is deodorant, up signature that denotes its source. soap in concentrations L). however, (or 200,000 uncertainty, convenient. This ng/# CE# Pom to 20% (04— 4, S-1594-89, 29; inter- slip op. precludes the reliable consistent No. pey, results, CV-656, 23, 3, EDTA test as is re- Phillips pretation Ex. Decl. of Doc. No. Decl-¶ ¶ 3e; under 9; 51, quired for admission Daubert. Doc. No. Ballard 4/2/04 10-14.) 54, By comparison, ll. HRT theory presented Under Petitioner preservative used EDTA is as blood Circuit, the of a to the Ninth absence in a concentration purple-topped tubes disproved tamper- EDTA spiked level of L). (04-CV- (or 1,300 ng/# of .13% CE# theory now es- ing. Under a ¶ 5.) 3, 23, Phillips Decl. Doc. No. Ex. EDTA pouses, a or constant level of low Pompey court likened abun tam- possibility does not foreclose the of “to of EDTA in our environment dance technology pering. where results With saying swimming that we are like fish no easily manipulated, can so there are be No. Pompey, ocean of EDTA.” S-1594- an definite reliable conclusions. More- op. at 4-5. slip over, may testing undermine EDTA testing. ability to further DNA presence pre- perform The common of EDTA known, previously of stan- Dr. Ballard has testified cludes the establishment sample, extracted from a against which a test once EDTA is dard levels EDTA longer no be for DNA reliably sample be can used compared. measurement could op. testing.34 Pompey, slip No. S-1594-89 commonly EDTA is found in the Since (see 04-CV-656, environment, 11; also Doc. No. scientifically is no valid there ¶ 8.) method, Decl. at testing Phillips con- Ex. through even dak, accomplished background expected. cannot be Dif expert spectro- in mass material an Institute, T-shirt could different metry to arrive at ac- ferent areas of a reflect Scripps from 4-13.) (4/2/04 ll. levels EDTA. HRT results. curate According theory, variant to Petitioner’s those (4/2/04 "migrate” could also to differ readily is in water. levels EDTA 33. EDTA soluble Thus, is no ent the T-shirt. there 54: ll. areas of HRT certainty which came about EDTA source, clarify and where that has since testing inter- which EDTA 34. Additional will pres "migrated.” widespread subject in the Because pretation of the EDTA level environment, lev prod- ence of EDTA presence Given the of EDTA in EDTA stain. lotion, deodorant, reliably interpreted. is laundry There els cannot be ucts like hand simply unacceptable risk of error. detergent, a level of EDTA in the constant

The concludes that EDTA testing E. The Court’s Conclusions as to Reliability Testing of EDTA Do satisfy does not Daubert standards. Be- Finding Not Affect Its Previous many cause there are so variables that That Dr. Ballard’s Results Dis- potentially EDTA skew the test adminis- prove Theory Petitioner’s of Tam- interpretation tration and the of the re- pering sults, a any factfinder is unable to draw The Court’s serious concerns about the reliable conclusions that assist its resolu- reliability of EDTA testing do not negate tion of whether tampering occurred. The the Court’s conclusion that Dr. Ballard’s Advisory Committee notes to the Federal test support results do not Petitioner’s the- Rules of Evidence instruct the Court to ory tampering. case, of In Petitioner’s consider expert “whether the has ade- subject level of EDTA found in the stain is quately accounted obvious alternate ex- (110 so ng) low that it cannot be consid- planations.” advisory Fed.R.Evid. 702 significant ered to show tampering.35 (amended 2000). committee’s notes This Here, where the amount of EDTA de- here, factor is relevant simply where it is controls, tected in the on average, exceeds impossible expert “adequately for an to subject stain, the amount found in the myriad account” for the “obvious alternate theory tampering of is without explanations” for the detection of elevated support. As Petitioner represented to the EDTA sample. Circuit, levels within a forensic Id. Ninth “If the blood planted, was ... it will reflect a high level of EDTA.” Contrary EDTA testing to how por- Cooper, 358 only F.3d at 1125. With trayed Circuit, to the Ninth -it is far from small amount of EDTA found in the sub- Cooper, “definitive.” 358 F.3d at 1125. ject compared stain to the control speci- Instead, its admission here would require “planted” mens and the blood on the Con- “glibly the Court unscientifically T-shirt, trol the EDTA test results are not consistent with evidence of tampering. dismiss EDTA from sources other than the tubes, purple-topped gargan- t[ake] F. The Request Court Denies The leap tuan to a unsupport- conclusion that is Subject Testing A-41 to Further science, record, ed facts in the or even The grave Court’s reservations about Pompey, S-2594-89, common sense.” No. reliability testing EDTA are more slip. op. at 21. The Court declines to do so pronounced A-41, with Exhibit blood as Petitioner’s EDTA testing does not found on the wall of the victims’ home.36 meet Daubert standards. The ruling Court’s Daubert bars Petition- request A-41,

er’s testing for EDTA but case, even were that not the the Court concludes that A-41 is not suitable for 35. Were subject high the results for the stain whether the elevated level of EDTA resulted areas, relative to tampering the control benign Court would or some factor. have concerns under Daubert due wide- spread presence background as a EDTA request 36. Petitioner’s to test A-41 was not may positive. variable result in a false petition, included in its successive filed on scenario, (04-CV-656, the Court April could not evaluate Doc. No. containing the blood inside the tin testing powder the control method or using EDTA testing. paint chip: other method A-41A, Mr. you Bernstein: With de- supports totality of record that as the blood powder, plus scribed conclusion that A-41 is suitable Court’s open inside the tin there was a little testing. further scientific for Myers Dr. Blake and Steven testi- tube a hole at the bottom and a expert, with there blood fied that is no visible remain- paint inside it? chip A-4. ing paint chips comprising on the Myers: Mr. Correct. the for the

Additionally, used nucle- blood you Mr. Bernstein: And combined the testing pursuant DNA the performed ar chip powder? the with Agreement DNA was found Testing Joint Myers: Mr. all of be- powder, Not the at the bottom of the as a dried substance cause with in it that tube the hole expert A-41. Petitioner’s holding container I took a actually stereomicro- —and 3, the at June Dr. Edward Blake testified graph pow- this—had some of the of 2004, evidentiary regarding A-41: hearing der to the of the adhering outside up A-41 you open Dr. Blake: ... the tube. So I swabbed inside of the it, tin, you for all look at intents paint chip, tin and I took the com- no purposes, there’s blood there. making my bined into DNA ex- those However, look at it you when sample. might But traction whatever a little bit different microscope, stereo adhering have to the been outside (sic). very fine story powder is a There put that the tube back tube when was blood that remains on inside of tin, into it still exists. And was the tin. that’s what collected you Mr. Bernstein: So extracted analysis. for PCR37 chip powder together? and the (See [04-CV-656, at Doc. No. 116 Petr’s 7] Myers: chip powder Mr. The 12, July P & in Supp. Mem. of A. that I swabbed from the inside of (quoting 2004 Mot. for Reconsideration ex- said, tin; but, pow- Ias there’s some HRT).) cerpts 6/4/04 may present. der still be testimony is Dr. Blake’s corrob- credible (See 04-CV-656, No. filed Doc. NOL testimony Mr. at an Myers’ orated evi- 298-99.) February Califor dentiary hearing Judge William H. before Supreme nia has also noted Court Kennedy Superior California “[o]nly a amount of re minute the blood A-41 regarding at the June tests.” Cooper, mained after these post-conviction time of the 2001 nuclear Cal.Rptr. 809 P.2d Cal.3d testing. Myers DNA testified that Mr. “minute has amount” of blood nuclear 865. This when he tested A-41 for DNA he already subjected to for chip and been extraction remaining paint used the some DNA, (if any) testing sample powder of blood the amount of EDTA 37. When for a small size present original sample. through polymerase Given this chain can be overcome PCR, limitation, ("PCR”). sparse Using even if rem- minuscule critical reaction fine, powder remaining A- replicated nants of amounts of DNA can be and the blood tested, impossible it would be for sample that the 41 could be size increased so amount extrapolate testing. from those re- DNA PCR is the factfinder available is sufficient drop original sults to whether the application in its to DNA and cannot determine limited planted. regenerate replicate or from a minute amount may DNA testing, sample agreed which alter the authorities to have certain DNA original such that EDTA level could testing performed in 2001. Petitioner had (4/2/04 accurately not be measured. HRT nationally the assistance of two recognized DNA experts, Dr. Edward Blake and Christopher addition, parties Plourd. The entered Myers’ Dr. Blake’s and Mr. into a Joint Forensic testimony support Testing Agree- credible DNA conclusion that A-41 specified is not able to be tested for ment that the items of evidence EDTA using tested, the control method. Both they to be shipped how were to be Dr. Ballard and Mr. LeBeau describe (See and the method of DNA testing. control method as requiring control areas Agreement Joint DNA May dated around the blood sample to determine if 2001.) significant there is a difference between Pursuant Agreement, the Joint DNA the of EDTA in amounts the stain com- the evidence to be shipped tested was pared with immediately surrounding areas the DOJ DNA Laboratory Berkeley in the stain. post-conviction The record from two Diego Superi- locations: the San demonstrates that the state of A-41 does or Court and the San County Bernardino result, not provide such controls. aAs the (92-CV- Sheriffs Identification Division. Court concludes that A-41 is not able to be Supplemental Third NOL filed Jan. scientifically reliably tested for the 33, Judge Ex. No. Kennedy Or- presence Indeed, of EDTA. totality the der May dated The items the record before this supports Court the shipped custody from the Diego of the San conclusion that A-41 is not suitable for Court, Superior Clerk, Evidence were: a addition, further scientific testing. giv- cigarette hand-rolled butt recovered from concerns, en the Court’s Daubert the Ryen the station in wagon Long Beach that EDTA testing concludes of A- (Trial 584A) (Laboratory Exhibit item no. unlikely 41 is to be of interpretative value 12); (Trial 42); a hatchet Exhibit V— and is unwarranted destructive testing of major portion of a T-shirt found near the the evidence. (Trial 169) Canyon Corral Bar Exhibit IV. Actual Innocence (Laboratory CC); Item and a button found (Trial in the hideout house bedroom Ex- In the claim first peti- successive 97). (Id.) hibit remaining The items to be tion, alleges that his federal con- Petitioner tested shipped by the San Bernardi- stitutional rights have been denied because County no Sheriffs Identification Division. he is innocent of all but the escape charge. Those items were: a ciga- manufactured However, post-conviction DNA testing V-17), rette (Laboratory butt item no. guilt. confirmed Petitioner’s Petitioner’s Ryen found in the wagon Long station in blood was found at the crime scene and on Beach; the cutout cigarette portion butts from the Ryen found inside the same sta- (Trial 169), wagon tion T-shirt after the car was Exhibit which remained recovered in Long Beach. custody of the San Bernardino County Sheriffs Identification Division fol-

A. DNA Evidence Establishes Peti- lowing trial; Petitioner’s hair recovered tioner’s Guilt victims; from the hands of the the remains (the Subsequent to the passage drop of California of bloodstain A-41 of blood found Penal Code section the California hallway Ryen outside master Report concludes Supplemental The hair and bedroom); the reference strong evidence testing provides the DNA and the vic- samples blood the DNA is the donor of May that Petitioner (Joint dated Agreement DNA tims. found drop from: the blood extracted 10, 2001 at bed- Ryen master hallway outside Profi- STR provided for Agreement The (A-41), the hand-rolled saliva from room performed testing DNA be Plus ler found cigarette manufactured butts items of specified Berkeley on DOJ wagon, Ryen the abandoned station inside STR Profi- stages: “blind” in two evidence found on the T-shirt and blood smears performed to be testing DNA Plus ler Canyon (Supplemen- Corral Bar. near the evi- scene pieces of crime specified Report Physical Evidence Exam tal DOJ Plus DNA dence, followed STR Profiler DNA Sept. dated from Peti- exemplars on the known testing profiles the DNA is consistent with profile (Id. The the victims. tioner of evi- each of those items obtained from scene the crime results from test “blind” (Id.) that do not profiles DNA dence. compared with then be evidence would with the are all consistent match Petitioner reference obtained from known results testing The did profiles. victims’ DNA victims. and the from Petitioner samples profiles. DNA reveal unidentified 11-12.) (Id. testing is a DNA at STR (Id.) gen- that is testing method DNA forensic result ob- Plus DNA The STR Profiler scienti- within the relevant erally accepted A-41, found the bloodstain testing of bio- tained forensic community for fic Ryen the master (Id. 6.) hallway wall outside the at logical specimens. bedroom, to match determined has been Phys- in the summarized The results are profile. (Supplemental Petitioner’s DNA Report dated Examination ical Evidence Report dat- Exam Physical Evidence DOJ Re- 7, 2002, Supplemental in the July 24, probability at The Sept. ed 2002 (DOJ 24, 2002. September dated port 1 in approximately is of a random match dated Report Exam Physical Evidence Americans, in 270 1 billion for African 310 2002; Physical 2, DOJ Supplemental July Caucasians, billion and 1 in 340 billion 24, Sept. Report Exam dated Evidence (Id.) The eviden- Hispanics. for Western 2002.) done testing was The DNA that this is twofold. significance of result tiary evidence of probative the most provides length First, at trial Petitioner testified at July In his murderer. identity of the Ryen “approaching the and he denied ever DNA ex- 24, Petitioner’s report, 2001 own 802, 281 53 Cal.3d at Cooper, house.” Blake, that the T. Dr. stated pert, Edward Second, 90, P.2d 865. Cal.Rptr. 809 in this biological evidence “most relevant inside blood presence Petitioner’s blood and within is contained case Petitioner was Ryen home confirms above.” evidence described cigarette butt house, in the Ryen middle inside (92-CV-427, NOL Supplemental Third crime scene. 24, 23, 2004, Blake Let- Ex. Dr. filed Jan. also DNA 4.) Plus The Profiler 24, Dr. Blake STR 2001 at July ter dated was found DNA on showed Petitioner’s experts one of the defense had been Ryen found trial, butts cigarettes at on two prior team defense Petitioner’s estimates probability The wagon. DNA station post-conviction during trial butt, item cigarette for the manufactured testing procedure. 952

V-17, 1 in profiles matching was 19 billion and for the hand Petitioner were ob- butt, DOJ-5, cigarette tained, rolled item 1 in were found on Trial Exhibit 169 (Id. 110 million. at CC), The STR Profiler (Laboratory Item portion Plus DNA results from cigarette both T-shirt custody which remained in the butts that were Ryen recovered from the Diego the San Superior Court Evidence wagon Long station Beach par also has Clerk, since the time of Petitioner’s trial in significance ticular when considered with prior post-conviction 1984 and 1985 to the the other evidence introduced at trial. (92-CV-427, testing. DNA NOL filed The DNA results from cigarette butts 20, 2004, 6, Jan. Ex. Judge Kennedy’s Ryen establish that Petitioner took the July order dated 2003 wagon escape station to make his after post-convic- state court conducted a committing the murders. There was a evidentiary tion hearing in ad- massive manhunt for Petitioner after he dress, items, among other Chino, escaped from and there was evi claim tampering. of evidence The Honor- shortly prior dence at trial that to commit able Kennedy William H. concluded that ting the murders Petitioner had made tele there was no merit to Petitioner’s claim of phone calls from the hideout house in an tampering. (92-CV-427, evidence NOL attempt unsuccessful to get help so he filed Jan. Ex. Judge Kennedy’s could escape from the Chino Hills. Coo July order dated 2003 at per, Cal.Rptr. Cal.3d The T-shirt was found the side of a P.2d The DNA results obtained from road which Ryen connected the home with cigarette the two fortify butts the conclu freeway system that eventually leads to sion stated Supreme California Beach, Long Ryen where the station wag- Petitioner “had an obvious mo on was found abandoned. The Profi- STR stealing Ryen tive both for the get car—to ler Plus DNA results from this T-shirt transportation away from the area—-and presence establish the of Petitioner’s and killing family for the facilitate the —to Doug Ryen’s victim blood on the same gain theft and time perfect escape.” to his clothing. article of pro- The DNA results 90, Id. 281 Cal.Rptr. 809 P.2d vide additional evidence establishing Peti- guilt. tioner’s Similarly, the STR Profiler Plus DNA sum, In this Court concludes that the results obtained from the T-shirt found DNA test results obtained from the evi- roadway leading the from Ryen the house presented dence at trial establish Petition- to freeway the nearest link Petitioner to (See guilt. Supplemental er’s Physi- DOJ the crime. Blood on the portion cutout 24, cal Evidence Exam Report dated (DOJ Sept. CC-1B) the T-shirt item matches 3.) 2002 at Doug Ryen’s (Supplemental blood. DOJ Physical Evidence Exam Report dated Challenge B. Petitioner’s the 24, Sept. addition, 2002 at several DNA Evidence is Merit Without smears/spatters blood during found the course of the testing attempts STR Profiler Plus to undermine the post-conviction match Petitioner’s profile. testing DNA DNA (Supple- results Physical mental DOJ claiming Evidence Exam Re- Gregonis Criminalist Dan 24, port Sept. dated might 2002 at These have tampered contaminated or with blood smears/spatters, However, from which DNA the evidence. unsupported his in this evidence or contaminated test DNA the consistent ignores assertion 23, (92-CV-427, filed Jan. NOL the from case.” obtained which were results Kennedy dated Judge Order Ex. butt found cigarette hand-rolled Long 2003 at recovery July after its Ryen vehicle V-12) and (DOJ-5, item lab crime Beach Judge transcripts reviewing After on the T-shirt smears/spatters blood from hearing, his find- evidentiary Kennedy’s roadway linking (DOJ-6) found near conclusions, parties’ submis- ings and freeway. the nearest home to Ryen evidence, the Court relevant and all sions from these profiles obtained DNA challenge of merit to Petitioner’s no finds DOJ-6) (DOJ-5 the cor- match items More- the DNA evidence. veracity of profile full DNA portion responding by this Court over, testing ordered EDTA Pe- major donor from obtained A-41— planted blood show Petitioner’s fails items All profile. these DNA titioner’s the T-shirt. Diego custody the San were the Court DENIES Accordingly, from 1984 Clerk Exhibit Superior Court is innocence. Petitioner of actual claim direct- they shipped when until establishing his burden of to meet unable Laboratory DNA Berkeley the DOJ ly to that, but convincing evidence by clear contact no Gregonis has had analysis. for error, fact- no reasonable constitutional the hand- time of trial with either since applicant have found the would finder (DOJ-5, lab crime butt cigarette rolled 28 U.S.C. underlying guilty of the offense. V-12) T-shirt on portion or the item 2244(b)(2). the burden if he § Even met matching Petition- smears the blood which 2244(b)(2), Petitioner’s § of 28 U.S.C. (Trial Ex. profile DNA were obtained er’s pursuant on the is denied merits claim con- 169). DNA test results Consistent Alternatively, Petition- § 2254. 28 U.S.C. been ob- guilt have firming Petitioner’s of all that in light failed to show er no con- Gregonis had tained evidence evidence, it is evidence, new including he has as to which tact with reasonable not that no likely more than time of Petition- no contact since had guilty found Petitioner would have juror items, remained which trial. The have er’s Schlup, 513 doubt. beyond a reasonable Superior custody Diego of the San in the Further, 327-28, 115 S.Ct. at U.S. Clerk, as an inde- operate Evidence Court has not concludes that Petitioner Court the DNA results ob- on the pendent control Herrera, stringent burden met the items that were from the tained “extraordinarily high” an requires which Department. custody of the Sheriffs truly demonstra- persuasive “a showing of and testified Gregonis others Criminalist ” As detailed innocence.’ of ‘actual tion evidentiary hearing post-conviction at the the and below, fails his burden Petitioner the Califor- Kennedy of Judge before held under 28 claims DENIES these Court 2003.(92- 28, on June Superior Court nia alternatively, under 2244(b)(2), and U.S.C. filed CV-427, NOL Supplemental Third Herrera, on the and Schlup and under 20, 23, Mot. and Deck Exs. Jan. 2254(d). § to 28 U.S.C. pursuant merits Test, 99-107, 97, 110- Gregonis at of Dan all result, that a the Court concludes 131-33.) As 122-23, 128-29, Judge Ken- prop- are petition claims in this successive hearing conclusion of nedy found at the AEDPA, either erly DENIED under showing not made Petitioner “has things, a “fac- among other requires tampered which personnel law enforcement door, tual claim through not discoverable Ryen home, [ ] effect to the diligence” exercise of due that establishes days. several He admitted that indeed that, “clear and convincing evidence but deny he could not it. He was next door error, for constitutional no fact- reasonable at until p.m. night least 8:30 of the finder would have found applicant murder, fairly short period of time offense,” guilty underlying or under before the crimes occurred. Schlup, requires which showing that it I am convinced that the hatchet in evi- evidence, light “in of all the including new dence was one of the weapons murder evidence, likely it is more than not that no and that it came from the hideout house juror reasonable would have found peti- where the spent defendant a lot of time. guilty beyond tioner a reasonable doubt.” I am convinced that the defendant stole Ryens car; thought I that that was Rulings Findings C. Prior Court and adequately proved by the Overwhelming Document Evi- evidence found therein, dence of particularly tobacco, Guilt same tobacco that was also found at the Rulings 1. Trial Findings Court home was the same that comes from the Garner, The trial judge, Richard made prison. state independent determination of Petition- (Id. at guilt (92-CV-427, er’s at sentencing. Third Supplemental NOL filed Jan. Judge Garner further discussed the evi- Ex. Transcripts Judge Garner’s linking Ryen dence house to the hide-

rulings sentencing, May 1985 at out hid, house where Petitioner had includ- 8144-50.) Judge Garner stated on the rec- (1) ing Petitioner’s blood found in the ord: (2) Ryen house, evidence that established The Court has examined and reviewed after the murders the killer returned to all of the evidence that presented the hideout house where stayed, jury, fact, the trier of the took a shower and brought blood into that making determination, this the Court house, (3) Petitioner’s manner of flight has also examined all of the exhibits country out of the pieces as additional admitted into evidence and studied the evidence that established guilt. daily transcripts on phases. both (Id. law, from all of the evidence admit- ted at guilt phase, the Court is satis- Supreme 2. California beyond doubt, fied a reasonable all rea- Rulings Findings sonable defendant, doubt that the Kevin The California Supreme Court ad- Cooper, is the Ryen one who entered the dressed the issue of guilt home and committed the various mur- length after his conviction: ders, guilty and that he is thus beyond a doubt, guilt evidence of extremely [T]he reasonable was of Counts Two Six_ (P.Ex. through strong. Many p. No. items of circumstantial pointed evidence Now, guilt. to defendant’s some of particular points the more quite Some alone compelling; were oth- persuading me of the guilt defendant’s combination, showed, are the ers less so. following: proof The the evi- apart trial, from his own dence guilt statements at established defendant’s over- that he inwas the hideout whelmingly. home next way to on his used defendant direction fact of defendant’s the First, there was to wear Mexico; happened he and near- the house hiding out at and escape of like those tennis shoes prison time issue the precisely scene at the crime est defendant’s defendant, have happened to house left the Defendant the of crime. have hair like The to type, happened of the murders. blood night very the defendant’s, cigarettes from the to roll happened be seen could Ryen house tele- issue prison defendant’s distinctive Since with the same Lease house. vain, proved sought had help tobacco, for Defendant appeals and so forth. phonic get to a means of these needed each desperately he or minimize to discredit Ryen sta- area, the a means evidence, volume out of the the sheer of but items hatchet The provide. could wagon tion is over- consistency of the evidence and weapons murder one that was whelming. house, near Lease within the came from 795-800, Cal. Cooper, 53 Cal.3d Ryen which the through

the window P.2d 865. Rptr. this The sheath visible. house was items specific the analysis of some of An the floor of on the found hatchet was Supreme the California of evidence in. Items slept defendant very room is mentioned opinion their forth in set mur- remaining the have been that could below: the missing from weapons der Coo- escape from C.I.M. After his [1.] Lease house. Home, the closest the Lease per hid in circumstances, there these to In addition for sever- Ryen’s residence house the comparison print strong the shoe was mur- immediately prior to the days al com- evidence, and tobacco cigarette the ders. evidence, de- match between the parison clearly visible home was Ryen The [2.] drop type and blood fendant’s items Various the Lease home. from was not house that Ryen blood defen- connected evidence circumstantial victim, prison the bloodstained the massacre. dant with floor, Lease house on the issue button inmate at CIM had been Defendant (not rope defendant’s the bloodstained David name of April 29 under since blood) a victim’s blood, consistent trans- he was Trautman. On June de- of the bedroom the closet found in security portion minimum ferred to a Lease used, the blood fendant afternoon, June The next prison. elsewhere, the hair shower house on foot. escaped he other evidence and the comparisons, evidence, finger- including Undisputed opinion. this earlier in summarized de- escape, that after prints, showed suppose utterly unreasonable It is house nearby in a refuge fendant took coincidence, hypothetical some Larry brothers Lease owned this lo- night this chose real killer (hereafter the Lang Kermit Roger Lease kill; entered that he cale to house). slept in closet He Lease to re- left just after defendant house garage. nearest the bedroom leaving weapons, murder trieve the neighbor closest Lease house defen- bedroom sheath hatchet away. yards house, about Ryen used; returned that he dant fire- the Lease house The window shower; drove that he Lease house Ryen house. a view of place provided same wagon in the Ryen station Bilbia, Lease, Kathleen an employee of he was getting cigarette. Shortly af- living had been in the Lease house in ended, ter the first conversation defen- May, and she had used the bedroom dant again. called her A brief second (hereafter defendant slept later conversation ensued. bedroom). Bilbia She moved out of the parties stipulated that if Diane May. house during By May most of witness, Williams were called as a she belongings her had been removed. On testify would that in June she received May 30 and June Bilbia vacuumed two telephone calls from defendant at portions house, and cleaned of the in- Pittsburgh her number. Defendant told cluding the she bathroom had used her that he had been pris- released from (hereafter bathroom). the Bilbia on because of a new law that had been Cooper [3.] ended his final telephone passed, and that he needed money. She call from the Lease house approximately said she could not get any. He said he Ryen one hour before family would call back. Defendant called Chris Hughes returned home from a again Williams day, the next and asked barbeque. Telephone records showed if she had gotten any money. She re- that two telephone calls were made from plied that she had not. On June the Lease house to the Angeles Los area Williams received a collect call from de- telephone number of Yolanda Jackson— Tijuana, fendant in Mexico. lasting one one hundred ten minutes On June beginning a.m., a.m., June 3 at around 10 or 11 Virgi- 12:17 lasting one four Lang minutes nia beginning at visited the Lease briefly house 2:26 a.m. the same morning. get Two calls a sweater. She nothing noticed were also made from that house to the out ordinary. of the Pittsburgh, Pennsylvania telephone A green button, [4.] bloodstained iden- number of Diane lasting Williams-—one tical to the buttons found on CIM in- three minutes beginning on June 3 at jackets mate was found the Bilbia a.m., 11:46 and one lasting thirty-four bedroom where Cooper slept. Blood minutes beginning on June at 7:53 from the button could have come from p.m. only This final call was an hour or one of the victims or from Cooper. so before Ryens Hughes Chris murders, After the a bloodstained khaki left the Blade house for their unsuspect- green button found on the rug was ed rendezvous with death. the Bilbia bedroom. It was identical in Yolanda Jackson testified that she visit- appearance to jackets buttons on field ed defendant on May 30 at CIM. Some- CIM, inmates wore at including one de- midnight time after on June she re- fendant wearing was seen shortly before a telephone ceived call from defendant. escape. The blood on the button She believed the call lasted about 30 to could have come from defendant or one 45 minutes. Defendant said he had of the victims. “walked out” prison. He asked A her to help rope him in what bloodstained Jackson was found in the believed “joking was a Bilbia similar, manner.” bedroom closet. It She refused. identical, Defendant asked her where but not length he should to a of blood- go. She said she did not rope know. At one stained found on the driveway of point conversation, Ryen defendant said residence. hatchet were hairs on the Human [8.] possible the revealed Luminol

[5.] Doug and Jessi- of of the with those consistent in the shower blood of presence was in the the rug the The blood on hatchet Ryen. and on ca Bilbia bedroom Ryen. Bilbia bedroom. to the that of Josh hallway leading with consistent the sill on was found footprint Cooper’s covered the blade that The sheath [9.] this shower. on in “Bilbia” found the hatchet was of the the from sink hair removed Human [6.] stayed. Cooper where bedroom Lease of the the Bilbia bathroom trap in 5, a local of June During the afternoon Jessica with consistent house was in some a hatchet discovered citizen the from Hair removed hair. Ryen’s of a on the side to a fence next weeds was consistent in bathroom shower out of Ryen led from the home road that Ryen’s hair. Doug with the fencepost The above area. the Bernardino from the San A criminalist indicat- indentation had a small hatchet laboratory crime County sheriffs it. sharp had struck something ing that the Lease areas of sprayed various bloodstains; covered hatchet was The luminol, to used substance house by dried blood covered its head was not visible of presence blood the detect the hairs were of human hairs. Some A reaction eye. positive to the naked Doug and Jessi- of with those consistent “glow” ranging of an even consisting the on of the blood Ryen. Some ca feet above feet to five two from about from have head come hatchet could the on shower obtained the floor was Root, the au- performed Dr. who Josh. Defen- Bilbia bathroom. walls the could that the hatchet topsies, concluded on the sill this footprint left his dant chopping inflicted wounds. the have positive four There were also shower. rug on the the luminol reactions as miss- identified the hatchet Witnesses the Bilbia bed- leading to hallway the kill- house after the Lease ing from impres- to be foot appeared room that by the in a sheath kept been ing. It had reactions positive were Other sions. recalled Bilbia fireplace. house Lease closet bedroom obtained was she fireplace when seeing byit not did The reactions bathroom sink. 7, the June On cleaning the house. blood, but were presence prove the was missing hatchet sheath be blood.” it could “an indication bedroom. in the Bilbia the floor on found hair found matted Investigators vacat- when Bilbia been there It had appeared trap that sink bathroom room. ed the Other hair long time. have been there pick, an ice Buck knives [10.] microscopic exami- A was not matted. inflicted some could have which char- revealed of the latter nation of one victims, missing injuries on head hair. to Jessica’s acteristics similar hid. Cooper where Lease house from the bathroom hair A removed missing knives fitting strap one A similar characteristics had shower Cooper used. in the bedroom found was hair. Ryen’s head Doug ice more and one or knives buck Some from Lease hatchet taken [7.] Lease missing from the also picks were found Cooper hid house where have inflicted These could house. leading away from road the side fitting one strap injuries. A remaining Ryen home. of missing the buck knives was found on retail, shoes are not sold only but to the floor the Bilbia bedroom closet. states government. and the federal Three separate [11.] ProKed Tennis Baird, William manager of the San impressions, Shoe consistent with the County Bernardino sheriffs crime labo- pattern size and given shoes to ratory, compared the print shoe impres- Cooper at CIM were found in the follow- Ryen sions from the and Lease houses ing locations: other, each to type of shoes issued

1) in game defendant, room at the Lease and to other shoes. He

house, concluded that prints the three shoe “all possessed a similar pattern, tread which 2) spa on the Ryen cover outside the would indicate a type similar (which shoe was master bedroom was the used in each They case.” “are murders); consis- scene of the another, tent with one and ... could 3) blood on the bed sheet in have been caused the same shoe.” Ryen master bedroom. pattern The was similar to the “Dude” Investigators significant found three CIM, tennis shoes used at probably size print impressions shoe partial sole —a possibly but size 9. Baird searched impression spa on a cover outside the area stores for shoes with similar sole Ryen bedroom, master partial bloody a patterns, but could find none. The de- shoe print on a sheet on Ryen bed- fendant testified that his shoe size was waterbed, room nearly and a complete between nine and ten. Baird believed print impression shoe game room that the shoes that made the three im- of the Lease house. All three appeared pressions were nearly but new not brand to come from tennis shoes. new. Taylor, James an inmate at CIM who Ryen The family [12.] station wagon played on prison the same basketball taken after was the murders. Blood- defendant, team as issued equipment to stains located inside wagon the station other inmates. He testified that he is- had the type same blood as some of the sued defendant pair Flyer a of P.F. ten- victims. The station wagon that was nis days shoes. Three or four before missing Ryen house was found defendant was transferred to minimum on a church parking lot in Long Beach. 1) security (i.e., before June defendant One witness put flyer testified he on exchanged these shoes for pair the car on Sunday morning, June “Dude” Pro Ked Taylor tennis shoes. morning after the killing Ryen did not remember what size shoes were family. Another saw the car on June 7. issued to defendant. The Stride Rite Later, reported vehicle was to the Corporation sells Pro Ked tennis shoes police, who examined it for evidence. to the state for use institutions such as CIM. All “Dude” The car bloodstains, tennis shoes contain contained various the same pattern. including sole one general which could have come merchandise manager victims, from one or Stride Rite more of the but not testified that pattern this is not found on defendant. Several hairs were recov- any other shoe that the company manu- ered from the vehicle. Two criminalists nor, (which factures knowledge microscopically compared the hairs with extensive), other shoe. The defendant’s hair. One believed that one in the tobacco found that the doubt” Black a from came probably hairs of the was Role-Rite. Ryen car enough sim- “there was and that person, Mr. from hairs ... the between ilarity the two on saliva of the Examination I felt hair that unknown and Cooper the car Ryen the was butts from cigarette with consistent was hair the unknown the with inconclusive, consistent but was The second Cooper.” from coming Mr. by a non- having been smoked cigarettes was consistent found it also criminalist com- Some as defendant. such secretor it believed hair. Both defendant’s with miss- apparently were cigarettes mercial fin- Unlike hair. pubic likely was most Viceroy A house. the Lease ing match an absolute comparison, gerprint in the Bilbia found butt was cigarette hairs. comparing when possible is not not did smoke. Bilbia bedroom. “Role-Rite” issued prison Loose [13.] beer with Olympia Gold of six-pack A the closet in both was found tobacco refrig- in the found missing was one can house in Lease the bedroom the Bilbia One blood- Ryen house. the erator of floor on the slept and Cooper where edge the hanging over was can stained it wagon when station Ryen the board Olym- can of nearly empty A a shelf. Long in Beach. was recovered to appearance similar in beer pia Gold the issued inmate who the Taylor, James was refrigerator Ryen the those in defendant shoes to tennis Pro Ked training arena horse plowed a found in he saw defendant that CIM, testified and Ryen the midway between about roll- using cigarettes hand-rolled smoke houses. Lease is- tobacco “Role-Rite” and ing paper arrested weeks was Cooper [14.] When is tobacco This to free inmates. sued of several in possession still he was later in retail, institutions only to but sold home. the from Lease items taken such as CIM. California and met Owen white inside a found defendant On June Loose tobacco Ensenada, Ryen Mexico. closet, Handy in and the Angelica Bilbia box Angel Jack- Defendant, using the name addition, cigarette butts— two car. Handy offered work. cigarette son, for asked one of hand-rolled —were stay place and a The tobacco some food Ryen car. defendant found boat, Ilia their as Role- help paint was identified if he would box the white working After agreed. Craig Ogino examined Defendant Tika. Rite. Criminalist days, two defendant for two microscopically boat visually Francisco. for San sail Handys set loose tobacco samples cigarette. stops, then eventual- rolled They hand made several from the tobacco Bar- Bay near Santa with each to Pelican ly consistent went sample was Each or five four Ogi- they stayed for bara, tobacco. where Role-Rite and with other defen- oth- Guard arrested various Coast days. them compared with no also off he dove from a after location he obtained that samples dant at er tobacco dinghy, Tika, sam- to a tobacco The other the Illa swam store. tobacco he was While row shore. all different. started ples possessed defendant Handys, with manager Aubrey Evelyn, coming from as items identified several Role-Rite manufactures company house. the Lease “no had he tobacco, also testified drop A of blood collected in the EAP type testified, [15.] B RB. Gregonis or Ryen hallway at home could not however, that when he tested drop have come from of the victims. blood, it appeared have the same many analyzed When of the serum pro- EAP type as defendant’s blood. Brian enzyme types tein and of that drop of Wraxall, expert, another described the Cooper’s profile. blood matched types difference B between and RB as all exception, With one of the blood sam- “fairly subtle.” ples Ryen obtained from the house could Gregonis Before learned of his error have come from one or more of the regarding defendant’s EAP type, he and exception victims. The is a single drop Blake, Dr. Edward an expert employed of the hallway blood found on wall oppo- defense, tested the drop further. site the master bedroom door. Because of the limited amount of the Daniel a Gregonis, criminalist with the remaining sample, they performed tests County San Bernardino sheriffs crime they had believed the best chance laboratory, drop examined this of blood of excluding a possible defendant as do- process a scientific called electropho- They nor. did not retest for EAP. The resis. Human blood contains various additional to tests tended include enzymes defen- proteins. and serum types dant as enzymes possible Only of from a donor. vary person person. a minute Electrophoresis technique is a used amount of the blood remained after distinguish enzyme types, between so as Later, these Gregonis tests. after person exclude or include a as a possi- learned of regarding his error defen- ble donor sample. of a blood After elec- dant’s EAP he type, tried to test trophoretic testing, Gregonis concluded remaining for EAP. sample Dr. Blake drop that the could have come from was again present. This final test com- any of the victims. pletely sample consumed the and was upon Based results obtained for several inconclusive. enzymes, Gregonis also concluded that Electrophoretic testing also established drop was consistent with defendant’s the blood on rope found in the Bilbia blood. Results certain other en- bedroom closet could have come from zymes were inconclusive. Because of one of the victims but not defendant. characteristics, various the blood had to person have come from Black such as Cooper, 795-800, 53 Cal.3d at 281 Cal. enzymes defendant. of the One tested Rptr. 809 P.2d 865. is commonly “EAP.” Gregonis called ini- In the petition, latest the California Su- tially EAP believed the of the drop of preme Court denied Petitioner’s claims on blood type was B. When he typed later the merits procedurally barred, and as blood, Gregonis defendant’s own also be- finding that previous with the “[a]s five lieved it type was EAP B. Gregonis petitions for writ of habeas corpus that subsequently learned that defendant’s petitioner has filed in this court RB, challeng- type EAP type. was rare Gre- ing the judgment, petition gonis this casts had never before seen an RB no type. petitioner’s guilt He doubt on reexamined the or the photograph validity of original testing drop blood, judgment.” Cooper, In re but Case No. it was as to inconclusive whether it agrees. was S122389. This Court Do Not Allegations Petitioner’s D. Findings and Conclu- Court 3. Federal Establishing Burden Meet Guilt Petitioner’s Confirmed sions Innocence Actual Constitu- Rejected Petitioner’s Claims tional the Court petition, In this successive and re- forty-two witnesses en heard reviewed previously This thor- After exhibits. numerous parties viewed proceedings, court tire trial and sub- the evidence considering con subsequently oughly briefings, extensive denies the Court parties, this After evidentiary hearing. missions ducted claims. review, concluded this Court thorough expe by an (1) represented Canyon Bar Corral (2) Peti attorney, trial and able rienced is constitution his innocence appeal contends trial and Petitioner tioner’s (3) convicted of others conducted, Petitioner the actions by ally “corroborated” (4) Ryen/ guilt, of the overwhelming evidence involved” “likely were who 60.) aggravating (Pet-¶ weighed the Petitioner properly jury the murders. Hughes that concluding white evidence mitigating persons the on same focuses —three the death justified night the Bar Canyon murders Corral four brutal the males at 25, 92-CV-427, I, Aug. to direct Cooper tried he penalty. the murders —that of Thereafter, the Ninth (Id.) 1. The at Court Order 1997 at trial. toward suspicion this affirmed Appeals of in- bar Court Corral Canyon Circuit that the concludes Petition that concluded and likewise evidence Court undermine not does formation evi “overwhelming convicted er was guilt. Petitioner’s of at 1114— 255 F.3d Cooper, guilt.” of dence bar wit- Canyon Corral None 25, 1997 92-CV-427, Aug. I, 15; Cooper evi- physical refute able nesses are United 49-50, The 104-05. 1-3, at Order or the scene at the crime collected dence Petitioner’s denied Court Supreme States linking Peti- evidence DNA post-conviction this regarding of certiorari for wit petition from the The blood crime. to the tioner petition first habeas his denial Court’s at around A-41, scene, recovered crime this affirmance Circuit’s Ninth and the from 6, came 1983 on June a.m. 12:25 Cooper, petition. of his first denial Court’s 4424), (93 individual, RT American African L.Ed.2d 2392, 141 963, 118 S.Ct. 524 U.S. confirmed tests DNA post-conviction 861, 123 S.Ct. U.S. (1998); 537 Cooper, 757 (1 in 310 blood it was Petitioner’s that (2002). 238, 154 L.Ed.2d Physical (See DOJ billion). Supplemental 24, Sept. dated Report Exam Evidence Post-Conviction State 4. witnesses the bar None at Hearing Evidentiary American African an inebriated describe conducted court the state Significantly, such, the evi- As blood. with individual hearing evidentiary post-conviction undermine not bar does from dence con- court state 23-25, June guilt. Petitioner’s any made “has not that Petitioner cluded night of on the that alleges personnel enforcement law showing pa- acting strangely three the murders evi- any contaminated or tampered to leave asked in blood were trons covered (92-CV-427, NOL case.” in this dence 97.) tri- (Pet.K At Bar. Canyon Corral Kennedy 6, 2004, Judge 23, Ex. Jan. filed away suspicion to cast al, tried the defense 2, at July dated Order murders, 3, by calling Friday, from Petitioner bartender Ed June before Lelko to that three men entered testify night one too soon to be relevant. He night bar that and later left without inci- specifically seeing young recalls three being being dent after for refused service wearing extremely bloody white males T- too drunk. Lelko did not notice blood (8/25/04 shirts. HRT If Ward Mr. is fact, people on the men. none of the credible, testimony his refutes Petitioner’s Canyon bar known be at Corral on theory Randy and is consistent with Mans- night of the murders noticed blood. testimony field’s it was unusual (Answer, 1; Answer, Ex. at Ex. at for patrons to come into the bar with blood Answer, 1; Answer, 2; Ex. Ex. slaughterhouses on their from clothes 1; Answer, sup- Ex. area. port allegation comes people twenty years allege who over after the fact Evidentiary Hearing Testimony a. patrons to have been in the bar: Lance Employees Bar and Patrons Who Mellon-Wolfe, Mary Stark Christine Slo- Interviewed After the Were Murders naker, A1 Randy Mansfield and Ward. at Trial Testified and/or In order to address the raised by issues Edward Lelko testified he the bar- was petition, Petitioner’s successive the Court Canyon at tender the Bar on Corral the evidentiary held an people where several (6/25/04 5.) night of the murders. HRT night peo- the bar that testified. These Lelko stated that he three saw men wear- ple previously given police had interviews (6/25/04 18.) jeans. ing HRT Levi Lelko day following the the murders testi- and/or confirmed that one of the men wear- was fied at trial. These included the bartender (6/25/04 light ing a colored T-shirt. HRT Lelko,38 manager Shirley Edward the bar 84.) The men were not wearing coveralls. Killian, waitresses, Virginia two Mansfield (6/25/04 18.) HRT call Lelko did not the Royals, pa- and Kathleen and several bar police and did a in police not see officer the Land, trons, including Lester Linda Paulk (6/25/04 19-21.) night. bar that HRT Lelko, Killian, and Pamela Smith. Mans- field, Land, Royals, Paulk and Smith con- Shirley Killian was of manager the the firm their earlier statements and testimo- Canyon Corral Bar in and June 1983 re- ny that in there were no men the bar that (6/29/04 the called three men at the bar. night with blood on their clothes or faces 106-09.) HRT working She was not on that police and the did not come to the bar the of night the murders but was at the night. that (6/29/04 106.) bar. HRT She not did see any clothing blood on the men’s or their testimony The Court also heard (6/29/04 111.) persons. HRT One of the Stark, Mellon-Wolfe, Mary Lance and wearing men was a light colored T-shirt Rodney Deputy Ray Christine Slonaker. (6/29/04 jeans. and blue HRT 140- Hoops patrol evening who was on the of 41.) (6/29/04 police. did call the She not the request murders also At the testified. 109.) Petitioner, HRT Killian the went outside when the Court heard from Alfred Sr., Eugene Ward, men who testified that he three left and she saw one into a get Canyon night was at the Corral Bar on the and pickup get another one into a smaller Riverside, hearing gery lung The Court held the cancer and unable to travel. (See 04-CV-656, 100.) major facing California as Mr. Lelko was sur- Doc. No. Kath- with along Bar Canyon Corral 108.) Royals Kathleen (6/29/04 HRT car. 82.) On (6/29/04 June HRT Royal. in June leen bar a waitress was that one police reported 148.) she served She 1988.(6/29/04 HRT 153.) cot- short-sleeved “white (6/29/04 HRT men wore drinks. men three undershirt).” (6/29/04 (not and men clean-cut as shirt them ton described She with anyone 91.) two of see or one did not She jeans they wore HRT recalled 158.) (6/29/04 (6/29/04 it. HRT on had blood that T-shirt. clothing awore them seeing on their 83.) blood not does recall notice not She did HRT She (6/29/04 night HRT that the bar persons. inside or their officer clothing uniformed not was police, any problems 153.) call the aware did not not She was and she 83.) did police (6/29/04 calling the HRT anyone evening. aware that bar eve- the bar any officers see not man, maintenance Land Lester 154.) (6/29/04HRT ning. at the bartender and sometimes bouncer at the bar patron awas Paulk at the bar Linda Bar and was Canyon Corral en- men clean-looking three (6/29/04 testified HRT murders. of the night murders. night on the bar tered did men but three remembered Mr. Land per- military they were like They looked like. they looked what remember not 187.) all They (6/28/04 HRT sonnel. anyone 6.) notice not (6/29/04 He did HRT haircuts. short had T-shirts wore not and did clothing their on blood with T- a white wore One (6/28/04 HRT in- officer law enforcement seeing a recall stat- Paulk (6/28/04 Ms. HRT shirt. (6/29/04HRT bar. side the any of on blood notice not did ed she Wilson Detective interview Land’s anyone see did She men. three police in a was documented June 187.) (6/28/04HRT coveralls. Hearing, Notebook Evid. (Resp’t report. bar at the patron awas Smith Pamela AAAA.) there were that He stated 11, Ex. (6/28/04 the murders. night of the on 9:00 around arrived that men three white the men at 202.) three noticed She HRT had guy One 20’s. in their They were p.m. 203-04.) three The (6/28/04 HRT bar. a and wore hair colored light very short and wearing T-shirt 20’s in their were men short had male shirt, second the plaid a 205.) man had (6/28/04 One HRT jeans. plaid colored light wearing a black hair Ms. Smith making logo a with T-shirt had shoulder male third and the shirt (6/28/04 bands. heavy metal liked he think that stated He colored hair. dark length she 204-05.) that stated Smith Ms. HRT time a short returned the bar they left the on or stain any blood notice did Evid. (Resp’t intoxicated. pretty later 209.) (6/28/04 HRT clothing. men’s three AAAA.) 11, Ex. Hearing, Notebook bar. at the officer police a not see did She men in three of the version credible 209.) hearing The about (6/28/04 After HRT those Smith, comes Bar Canyon Ms. Corral murders, Paulk the Ms. the the time re- at the Department interviewed were the who Sheriffs contacted (6/28/04 and bartender the bar. waitresses men The at two three crimes. garding mur- of the night working were who HRT stopped who the bar manager of ders, the Larry is married Mansfield Virginia at patrons as three well night, as that by Shir- in law of daughter and the Mansfield by interviewed were night, that the bar bar. of the manager Killian, ley the murders. in time close authorities at 81.) a waitress was She (6/29/04 HRT (6/05/04 17; 187, 196, HRT HRT men saw three come into bar that 6/28/04 126.) 6, 226; 3, 89, HRT Ed Lel- night who making inappropriate were 6/29/04 com- ko, the bartender was interviewed within ments sitting to some women at the bar. (102 days three of the murders. RT 6526- (7/23/04 30.) HRT; Hr’g, Pet’r Evid. Ex. 6529.) Shirley manager, bar’s Kil- matter, As an initial Stark was known to lian, 5, 6, on was interviewed June the defense trial so that information (106 7649.) RT may not be the basis of an actual inno- Schlup, cence claim. See 513 U.S. at

Lelko was called as a witness 851; Thompson, 115 S.Ct. suspicion U.S. defense cast the three trial, Canyon strangers Bar for 118 S.Ct. 1489. At Corral was trial, Ryen/Hughes murders. At provided he information from the San Bernar- that 9:00 p.m. (“SBSD”) testified around three Cau- dino Sheriffs Department casian men entered the bar who were not “subjects” Stark claimed to have seen short, “regulars.” Each man mili- had Canyon Corral Bar night on the haircut, tary-style and all were wearing murders and that he talked to them and light-colored Levis; T-shirts and none (See 04-CV-656, their saw vehicle. NOL (102 6538.) wore RT coveralls. Stark, Slip Blue Re Lance Doc. No. The men spent about 15 to 20 minutes in 202). leaving. the bar before The three men Court, During testimony before this p.m. returned around 11:30 One no- was initially Stark claimed to have seen two ticeably inebriated. The waitress refused murders, night white men on they them service and left the bar without (7/23/04 who visibly intoxicated. (102 6531.) incident. RT Lelko noticed 28.) Later, HRT stated that Stark he saw (102 no blood on their RT T-shirts. (7/23/04 three men leave the bar. HRT dirty The men appeared looking and trial, At Killian was as a called rebuttal (7/23/04 not clean cut. HRT One of prosecution. witness She saw three military style the men had a short haircut young close-cut, men style military light unkept, and was wear- They haircuts. light wore colored T- ing pair jean of blue “Farmer John” bib shirts. She did not see blood or stains (7/23/04 overalls top with the half down. (106 7645.) on clothing. their RT 97.) 23-24, 85, HRT Stark testified that The men were “cut-off’ from further the man in the “Farmer John” bib overalls They upset drinks. did seem not and left light also had a T-shirt on with what ap- (106 7647.) the p.m. bar around 11:30 RT peared grease stains, or be some mud and he had a on right tattoo his shoulder. Evidentiary Hearing Testimony b. of (7/23/04 23-24.) HRT Stark, Mary Mellon-Wolfe, Lance Slonaker, Randy Christine Mans- Stark further testified that after he field, and A1Ward talking heard the men they about how fight were thought maybe bar he that The Court also descrip- heard from the the substance on one man’s shirt he tions supposedly of the men at the bar that thought grease was or night may mud have been provided Petitioner’s witnesses. blood, Lance but he was not sure about the evidentiary Stark testified at the sub- (7/23/04HRT.) (7/23/04 64.) hearing. stance. HRT He claims he was At the at night time, the the of bar the murders and the incident did not stick out in his over was all It arms. his on It was not it was thought he and mind Stark’s his all over was his—it on of the It was face. he learned after even significant, (7/23/04 his and shoes. feet on day. his next on It was the shirt. in Chino murders 25.) he (6/28/04 that fact, stated HRT Stark everywhere.” It HRT was beyond this incident re- thought about men were that the had testified then She twenty nearly until happened (6/28/04 it day the the bar. left service fused investigator a defense when years later Slo- 26-27.) Mellon-Wolfe Both HRT 2004. to mid early him and visited came men the where incident describe naker twenty the of (7/28/04 Because HRT began bar at the them approached Can- at the incident the gap between year a low friend, had on who their hitting on recall, effort Bar and Stark’s yon Corral 23-24; (6/28/04 HRT 6/28/04 cut blouse. hap- incident if the sure even is not he 120-21.) HRT on June murders of the night the pened 95-96.) He states testimony (7/23/04 HRT the presented also these that date on some he knows bar Mansfield, that of the the son Randy Lee of Bar Canyon Corral to the came three men (8/25/04 HRT Shirley Killian. manager that correlate personally cannot he but prac- bar at the he worked He said (7/23/04 murders. of the night to the date time at the of back night tically every 95-96.) HRT 93.) Mr. (8/25/04 HRT murders. Mel- Mary hearing, evidentiary At men couple that testified Mansfield on the of blood spots described lon-Wolfe on with blood smocks wearing butcher and a T-shirt the men’s one front day some the bar into came them lip. upper on his of blood amount small murders, that but time around 164-65.) said 123-24, Wolfe (6/28/04 HRT in the bar the men place could not he white, off tan or “light awas shirt his 86-87.) (8/25/04 HRT murders. day of the he had that jeans” and [ ] shirt white men these that testified Mansfield Mr. men, who two other than hair longer ap- hair with dark Hispanic were (6/28/04 HRT hair.” “really short had slaugh- local of the one to work peared wear- 121-23.) other men One 84-85.) The (8/25/04 HRT terhouses. down “zipped were that coveralls ing tan day and during bar into the came men waist. down over” and thrown smocks, kind wearing butcher were 121-22.) were The three (6/28/04 HRT were there Since back. tie behind arriving and shortly after service refused area, Mr. slaughterhouses several (6/28/04 HRT incident. without they left conclusion logical made Mansfield from work coming simply men these de- contrast, declaration Slonaker’s them. they blood had why that is and hair in blond with men white two scribes any- 94.) think He did not (8/25/04 HRT 21.) One (6/28/04 HRT 20’s. their learned after he even of these men thing jeans and T-shirt colored light a wearing 84-85.) (8/25/04 HRT murders. the wearing coveralls man was other the and when sure is not Moreover, Mr. Mansfield 21-22.) They (6/28/04 HRT buckles. that recall men, he does but he saw these (Traverse, blood.” covered “all were and them he when saw alarmed not he was testimony, she 2.) her During 212 Ex. (8/25/04HRT law enforcement. not call did dirty T- or a white man in described 97-98.) him. over “[a]ll with blood jeans shirt 966

The observations the employees and white males wearing extremely bloody T- patrons at the night bar the of the mur (8/25/04 shirts. 46.) HRT Mr. Ward testi- ders all confirm the trial testimony of Lel- fied that this was his only visit to the Killian, ko and and contradict the accounts Canyon (8/25/04 Corral Bar. 45.) HRT Stark, Mellon-Wolfe, and Slonaker. Mr. Ward worked at the El Toro Marine The sworn declarations of a number of Corps Air Station and that he would drive employees and patrons who were also at Canyon Corral Bar every week- the bar night contradict the informa night on way his home. didHe not work tion belatedly by Stark, recounted Mellon- on Saturday, so he was not in the bar on (See Wolfe, Answer, Slonaker. Exs. 18 the night (8/25/04 of the murders. HRT (Lelko Decl.); (Killian Decl.); 22 42.) As a family man, he never stopped at (Mansfield Decl.); 24 (Royals Decl.); 26 (8/25/04 the bar. 45.) HRT (Paulk Decl.); (Smith Decl.); (Land On Friday night, June Decl.).) Mr. The three belated and inconsis Ward testified that he was tent driving accounts on home which Petitioner relies from just work are simply midnight, before not as he credible evidence, did let alone every weeknight, clear and when he convincing came evidence across would couple rebut whose car presumption had broken correctness at down on tached to Canyon Carbon state courts’ Road implied approximately eight express factual miles See findings. from the Canyon 28 U.S.C. Corral Bar. 2254(e). § (8/25/04 HRT Mr. gave Ward couple a ride to the bar they invited Petitioner requested an evidentiary him in for a drink to thank him for hearing helping with A1Ward and learned prior to (8/25/04 them. 44.) HRT As he testimony that was walk- he would not corrobo- ing in bar, Mr. rate Ward testified Petitioner’s theory that he because he would saw three men testify coming that he was there on around the Friday night, back of day too bar early to that had be relevant. unmarked T- shirts (8/25/04 claims that covered blood. 46.) erroneously HRT ordered A1Ward to Mr. testify. Ward However, testified that he was approxi- request mately for evidentiary ten hearing feet requests from the men and they the testimony of A1Ward and A1 covered all over Warren. in blood. It was on (04-CV-656, 13.) Doc. No. 121 at the front of The their shirts and all over their request specified that A1 (8/25/04 Warren was arms and skin. 64.) HRT there the night (04-CV- of the murders. men also were all wearing similar khaki 13.) Doc. No. Since Ed Lelko pants and similar (8/25/04 shoes. HRT was the bartender on night 66.) Two of the men had blond hair and murders, he confirmed A1 that Warren was the third man sandy had brown hair. not bartending the night of the murders. (8/25/04 48.) HRT Two of the men had (6/25/04 HRT A1 Warren had a stroke shorter hair while the third man with (4/22/05 and is deceased. HRT blond hair had longer hair tucked into the Ward, Mr. an African back of (8/25/04 American individ- T-shirt. HRT ual, testified that he was at Mr. Canyon the Ward and the couple picked he up Corral Bar on the night proceeded before the mur- into the bar and Mr. Ward had ders, Friday, June and that he one beer and left shortly after midnight. specifically recalls seeing (8/25/04 three young 45-46.) HRT In total, Mr. Ward patrons shortly twenty employees at bar and interviewed he was the that testified 45.) (8/25/04 the HRT after the murders who also testified at minutes. evidentiary hearing, trial. At the these about the expressed doubt parties Both night testified on the of credible witnesses 45.) (4/22/05 Mr. HRT credibility of Ward. murders, patrons no bar the there were However, testimony may Mr. ex- Ward’s police blood on them and the with Stark, Mellon-Wolfe, and why Slo- plain Canyon at the Corral Bar. seeing men blood on naker recall specifical- Yet Mr. at the bar. Ward them the argues prosecution bloody the ly the men at bar seeing recalls a police evidence that officer was withheld for it to Friday, day early a too be Canyon the night called the Corral bar employ- that all of the bar relevant. Given disagrees, the The Court of murders. contempora- interviewed patrons ees evidentiary hearings do not the extensive neously testified after the murders and/or support claim. Court, at this recall no trial and before example, For admitted Mellon-Wolfe of bloody night at the bar on the the men a seeing no of that she had recollection murders, the concludes that the tes- Court bar, the and be- uniformed officer inside timony the from the trial have of witnesses confusing the night lieved she was of greater weight compared to the additional night with another at the bar murders twenty over witnesses whose recollections when a uniformed officer came into years are not reliable. later as bar, officer speaking and she saw the c. Detective Wilson (6/28/04 manager the woman of the bar. 173,175.) HRT Timothy Detective Wilson San testified Department Sheriffs Bernardino testimony and declaration Slonaker’s nothing three men covered about similarly changed. In her declara- have up in his blood had come interviews tion, came she stated uniformed officer any suspicious being investigation into men ¶ 11.) (Traverse, into the bar. Ex. 212 murders, night Satur- at the bar the however, that no testimony, her she stated (8/26/04 78.) HRT La- day, June police officer came into the bar uniformed ter, hearsay he heard information. Det. now claims night of the murders. She not sure where he heard this Wilson is way up to leave bar got that as she information, may have it been door, open out the she looked back hearsay as the sources such number saw a uniformed front door of the bar and on the newspaper or “word streets.” wearing pants bar tan officer outside the (8/26/04 HRT The information did not shirt, tan not the uniform of and a or investigation from his interviews come (6/28/04 73-75, HRT officers. Sheriffs (8/26/04 HRT with witnesses. Brady Regarding 2. No Violation did testified that he Randy Mansfield

Canyon Bar Corral (8/25/04 HRT not call law enforcement. 97-98.) slaughterhouses there were Since reviewing all of After the evidence vicinity, was not in the local Mansfield witnesses, hearing con- from the couple wearing seeing of men alarmed the more credible version cludes that (8/25/04 HRT smocks with blood. Bar butcher Canyon the events Corral Lelko, bar from the bar Bartender Edward of the murders comes night Killian, Beltz, Shirley waitresses, officer, two manager Paul a SBSD testified that Royals, and Virginia Mansfield Kathleen he in the parking Canyon was lot of the and patrons, including several bar Lester got Corral Bar when he the call to the Land, Linda Paulk and Pamela Smith did Ryen on home June 5th at approximately not see men with blood on them or see the 12:48.(8/25/04 8.) got HRT He the call the (6/25/04 police 17; at the HRT bar. morning of June 5th when the bodies were 128-24, 209; HRT 6/28/04 6/29/04 discovered. Beltz Canyon was not at the 10, 83, 19, 88, 111, 153-54; HRT see also Corral Bar lot parking night on the of the Answer, 1; Answer, 1; at Ex. 18 Ex. 22 at murders. Answer, 2; Answer, 1; Ex. 24 at Ex. at Also, the law enforcement officer tan Answer, Ex. pants Slonaker claimed to have seen out- The seven witnesses who were the that night side bar on the of the murders night bar that all that confirmed there was does not match the uniform of the San no police reason to call to the the and bar Bernardino Sheriffs deputy. Their uni- that none placed an officer in the bar that forms green consisted of pants. forest (6/25/04 19, 21; night. HRT HRT 6/28/04 (6/29/04 59; HRT Resp. see also Eviden- 10, 209; 109, HRT In 6/29/04 tiary Hr’g (picture Ex. TTTT of uniformed addition, Respondent produced also the Officer); San Bernardino Sheriffs 8/13/04 dispatch log from Sheriffs Department the (testimony HRT San Bernardino Sher- murders, for the night the and there Dispatch iffs Supervisor Debra Holman no call for assistance from the bar. that Ex. TTTT is the uniform worn the (Resp’t. Evidentiary Hearing Notebook San Bernardino Sheriffs with green 12, MMMM; Ex. also see HRT 6/29/04 pants).) 53-54 (Dep. Rodney Hoops testimony)). After conducting an extensive evi- Rodney Deputy Hoops, the deputy sher- dentiary hearing, the Court concludes that iff patrolling the area included the bar no Brady there was violation based on the p.m. 3:00 to 11:00 on p.m. June report absence form in response to the 1983, credibly testified that he not go did Canyon night Corral Bar the of the mur to Canyon Corral night Bar that evidence, including ders. The that he did not hear broadcast over own disputes witnesses Petitioner’s claim relating radio to the or bar its immedi- (6/29/04 uniformed officer came bar vicinity. ate HRT No night addition, of the murders. other law agency enforcement would re- employees duty on spond patrons bar unless a mutual aid re- made, bar quest was were aware of what request transpired and the would come from Department question, the Sheriffs the three men in the defense (6/29/04 be dispatch reflected on the log. had the benefit of that information before 47.)39 HRT trial and elicited testimony during trial of testified, testimony Dep. Hoops The Court also heard nothing from Det. as if there was check, deputy report Wilson that when he awas at the west from the bar then there station, regularly (Id.) end nothing he would log. check would be noted on the (8/26/04 Thus, HRT.) Canyon Corral Bar. This is even there night if were a bar check the murders, Dep. Hoops testimony consistent with that he there no incidents to men, regularly report, bloody would check on bar when nothing he such as since is (6/29/04 patrol. was on logs. HRT But reflected on

969 (Answer, daily 4-6, (Resp’t logs from June night. at bar that the events the 35.) Therefore, allega- MMMM-PPPP), Evidentiary Hr’g Ex. Exs. present Brady not a claim. tions do viable subject were to a duces tecum subpoena filed the those documents defense and Dispatch Daily Logs and 3. directly by were to the defense released at Information Available Department. the Bernardino Sheriffs San the Defense Trial to (8/13/04 183.) HRT 8, 1983, January- August On to the points Petitioner June 16, 1984, counsel Petitioner’s defense daily County of logs the San Bernardino Negus subpoena a duces tecum David filed Sheriff, incident detail which lists the of complete for materials that included “the description the Ryen/Hughes murders of records, daily tape record logs, dispatch suspect the as Buick station wag- vehicle ings dispatch of or communications made (See “occupied by young on three males.” 31, 1983, by July 1983 to the June 9; Evidentiary Ex. at Resp’t Hr’g, NNNN any deputy of the con Sheriffs or SBSO Evidentiary Resp’t Hr’g, Ex. see also investigation and cerning the search for (handwritten page RRRR Holman hav- suspects occurring [the at deaths vehicle); ing suspect on information the Ryen attempt the escape home] and to (tele- Evidentiary Hr’g, Ex. Resp’t SSSS Trautman, apprehend David aka: Kevin type dispatches regarding suspect ve- (I Cooper, from CIM on June 1983.” hicle).) The an evidentiary Court held 75-76.) Negus’ CT stated in declaration 13, 2004, to hearing August on address the records, logs, dispatch “The request: daily log, dispatchers where Nan- Sheriffs recordings include actions of offi tape cy and Debra Holman testified. Simendich not may cers which be memorialized (8/13/04 78.) HRT Both Simendich and reports. actions are relevant to the duty day were Holman murders evidence, other integrity physical sus (8/13/04 discovered, June crime, pects flight.” to the and the issue 10-11, HRT Neither Simendich (I CT any independent nor Holman had recollec- 2, 1983, September On after the state’s may suspect tion vehicle or who trial counsel David compliance, defense infor- conveyed vehicle/occupant have Negus daily stated to the court that the dispatch to that was entered mation logs been had received: daily logs broadcast on the into the I to the court that with can indicate (8/13/04 101.) This HRT teletype. to the four items the amended respect Douglas information and Paula new as 75-76], I that with subpoena CT [see Leonard, couple report, that made the daily respect [complete logs, to Item information trial at the testified this records, tape recordings of dis- dispatch (102 request of the RT 6586- defense. patch or made from communications 31, 1983], July all items June except tapes requested that were testimony from The Court also heard have been received. Beltz, Paul Deputy dispatched who was (IV RT the murder the crimes were scene when and was the Sheriff who ad- discovered Kochis,

Also, prosecut- John one dispatch suspect about the vehicle trial, vised ing attorneys tes- (8/25/04 young and the “three males.” the San Bernardino Sheriffs tified HRT.) Deputy credibly Beltz testified that duced into by evidence at trial Petitioner he not could the recall source of the sus- in an suspicion effort to direct at the three pect vehicle and the description the patrons bar Canyon at the Bar, Corral it (8/25/04 24-25.) young three males. HRT does not constitute evidence of actual inno- He may stated that it have been informa- cence. See Schlup, 324, 513 U.S. at 115 tion that he heard on the Sheriff radio or 851; S.Ct. Thompson, 559, 523 at U.S. 118 from Howey, Robert the neighbor of the S.Ct. 1489. Ryen family that made the initial call to Petitioner attempts also to connect the the Sheriffs to report the murders. .T-shirt on the side of by the road the bar (8/25/04 24-25.) HRT Furrow, to Lee but Petitioner’s DNA was Petitioner was aware of daily logs the at on the T-shirt with the blood of the vic- trial they because provided were to him tims, linking (See Petitioner to the crime. during discovery via a subpoena duces te- Supplemental Physical DOJ Evidence cum. Additionally, the defense elicited the Exam 2002.) Report 24, dated Sept. The testimony from Douglas and Paula Leon stories told Ms. Roper, deceased, now (102 6599.) ard at trial. RT The do not establish that Petitioner is innocent. daily therefore, logs, cannot be a basis for (Answer, 51.) Ex. Ms. Roper’s allegations an actual innocence claim. See Schlup, lack credibility. She was on drugs and 851; at U.S. 115 S.Ct. Thompson, hallucinating the night she claims she saw 559, 118 at U.S. S.Ct. 1489. Furrow, and Furrow at a rock concert night the of the (Answer, murders. (Trial 169) 4. T-shirt Exhibit 1; 1.) Exs. 45 at 54 at Petitioner alleges his innocence is shown Petitioner points also out that no one by the T-shirt discovered less than one identified the T-shirt as having come from half mile40 Ryen from the home near the Ryen home, the and the owners of the Canyon (Pet. 19.) Corral Bar. More- hideout house did not recognize the T- over, there is nothing inconsistent with (Pet. 20.) shirt. Since all of the occu- guilt the being T-shirt left pants of Ryen the home except eight- for on the side bar, of the road the inas- year-old dead, Josh were the failure to much as Petitioner stole the Ryens’ station identify the T-shirt coming as from the wagon and would have past driven the Ryen certainly home does exclude the Canyon Corral Bar way on his to Long possibility Also, that it did. the owners of Beach where he abandoned the station the hideout house made it clear wagon. (Answer, that items Ex. Petitioner of clothing kept at the could house have the tossed out T-shirt various (87 uses around the ranch. Ryen window the RT wagon, just station as he (89 tossed the hatchet out the admitted tak- window. 3519; ing RT clothing (97 RT cigarettes hideout house. from inside RT the vehicle Given presence contained Petition- of both er’s DNA. (Supplemental Physical DOJ Petitioner’s blood and blood, the victims’ Report Evidence Exam Sept. dated and that the T-shirt was on the side 2002.) Also, since T-shirt was intro- road leading from Ryen house to the fact, In Ryen distance between the (Answer, 17; home is 1.75 miles. Ex. An- Canyon home driving Corral swer, Bar 16(map).) Ex. along only paved leaving road Ryen master bedroom Ryen the sheet entirely possible Petitioner freeway, it is initially Duffy testified Deputy because following the murders. T-shirt used impressions any not see shoe claims was that he did event, what Petitioner bedroom, to a later testified serve as basis but trial, and cannot the master known at impres- See an innocence. such photographing of actual seeing a and claim 851; 324, 21.) 115 S.Ct. (Pet. at to this Duffy testified Schlup, 513 U.S. at sion. 559, 3506.) 1489. 3505, 118 S.Ct. (89 at 3457-58, 523 U.S. Thompson, trial. RT at rejected also was insinuation Petitioner’s in claim innocence Petitioner’s put To trial, Dr. at Thornton. by expert his own newly discovered primary the perspective, (“no con- (105 quarrel particular RT it is that to T-shirt the pertaining evidence of’ preservation collection and (An- cerning the blood. Petitioner’s with is stained blood).) may Petitioner in 88.) print that the shoe claim swer, Petitioner’s Ex. of actual innocence showing make a ignores T-shirt not on the planted blood was at the time of as evi- never used what was known was based on that the T-shirt Moreover, jury. the San See to the him. against presented trial and dence 851; ex- made County Superior 115 S.Ct. Diego at Schlup, U.S. post-conviction a findings recent 118 S.Ct. press Thompson, 523 U.S. at rejecting Petitioner’s evidentiary hearing prosecution the claims that Petitioner (Answer, claims, 9Ex. tampering evidence criminal- concerning information withheld present to clear 10), Petitioner fails undermining use Baird’s heroin ist William the pre- to rebut evidence convincing patterns tread that the conclusion his to attaches of correctness sumption patterns the tread shoeprints the matched 2254(e). § Not- findings. 28 U.S.C. those Peti- tennis shoes. of the Pro-Keds Dude testing preservative withstanding, EDTA concerning criminalist Wil- tioner’s claim any Court fails show by this ordered adjudicated previously liam Baird relating to tampering evidence 92-CV-427, I, Aug. Court, Cooper this on the T-shirt. found blood Therefore, claim at 69-71. 1997 Order 28 U.S.C. is See Baird barred. regarding Evidence 5. Shoe trial, Dewey 2244(b)(1). Additionally, at § shoe- three discovered Investigators manager Newberry, general merchandise ar- prosecution that the print impressions Rite, photographs the viewed of Stride a murders: Petitioner gued linked Ryen from impressions the three shoe out- spa a cover impression on sole partial house and concluded the hideout home and (88 bedroom, RT master Ryen side were from impressions shoe that the sheet on a bed 3363), bloody print shoe (86 RT shoes. Dude tennis Pro-Keds 3506-07), (89 bedroom, RT master 2642.) hideout impression shoe-print (87 appeared three evidentiary RT All house. an set The Court shoes, specifically tennis to come from claim address Petitioner’s hearing (88 RT shoes. Dude tennis Pro-Keds at CIM Chino used the tennis shoes 4764; 3364-65; RT94 gen to the available tennis shoes common retail any number of through public eral the shoe- seeks to undermine as Sears. such stores department at trial. Petition- presented print evidence 21-22.) (Pet. heard The Court insinuating problem there is a begins by er Smith, a for- Carroll; Lt. Donald Midge recovered from bloody print shoe Midge inquiry mer at CIM under Car- informal into whether investigator CIM roll; Luck, Don P. a former executive and special manufactured tennis shoes. (6/2/04 manager Corpora- sales for the Stride Rite a telephonic HRT in- tion, company that manufactured the terview Detective Pacifico in Ms. shoes; Dude Pro-Keds tennis Sandra explained Carroll what alerted her to con- Coke, investigator the defense that ob- inquiry newspaper duct an was a article Midge tained the declarations from Car- describing she read the tennis shoes as roll; Taylor; James and Detective Derek (Answer, prison 64 at made. Ex. Ms. Pacifico of San Bernardino Sheriffs personal- Carroll indicated that she did Department. ly investigation conduct an but rather she special “asked her staff to look into this Testimony a. of Former Warden (6/2/04 shoe back get to me.” HRT Midge Carroll 102.) people may These have included the alleges prosecution that Panner, manager, CIM business Hal asso- provide failed to information to the defense Bales, ciate warden Bob or her executive CIM, from Midge the former warden of (6/2/04 Regina assistant Stevens. HRT Carroll, that the prison-issued Pro-Keds 103.) Robert Bales was Associate Dude tennis shoes that matched the shoe CIM, charge Warden at of the minimum prints from the were crime scene “common facility at the time of escape. general public tennis shoes available to the Mr. personally Bales states he was never through Sears Roebuck and other asked to on any regard- check information such Cooper, retail stores.” 358 F.3d at ing inmate shoes nor he recall any does material Brady The finds no conversations with Carroll Ms. about Midge violation. known Carroll was to the shoes, and no regarding records shoes defense at the time of trial. There are exchanged were between Mr. Bales and phone messages from her to defense coun- 1.) (Answer, Ms. Carroll. 78 at Ex. testimony sel and about her securing Notebooks.) 154.) re- Carroll, The has without Court (6/2/04 Ms. HRT Vault investigation, consisting notebooks eight own direct conducting her viewed given concerning Peti- 2,484 information on incorrect of documents pages relied relying security was at changes Ms. Carroll by escape, her staff. tioner’s her assumptions articles, when to the CIM, her own incorrect letters newspaper enforce to inform law envelope, allegedly including copy called a she warden She sent, tennis shoes.41 memoranda, the CIM notes receipts ment about of mail (1) CIM erroneously date, concluded that: noting time had calls phone regarding ten Dude the Pro-Keds purchase contacted, not and phone messages did person manufacturer, directly from any- shoes concerning nis many other documents was (2) of shoes (NOL brand particular filed Petitioner. related to thing in southern Notebooks.) at retailers readily available Contrary 4/15/05, CIM Vault sup Evidence as Sears. such California telephone con- records of testimony, to her be reli must (See a claim of innocence porting made and were retained. versations Schlup, U.S. Notebooks.) See evidence. able 4/15/05, CIM Vault filed NOL 851; 523 U.S. Thompson, 115 S.Ct. call Yet, phone or notation a memo 559, 118 1489. S.Ct. the SBSD investigator with to a lead made documented, with an interview but is not CIM, escape

Following Petitioner’s a witness investigator with defense keeping meticulously began Carroll Ms. from CIM about by called the defense Petitioner. regarding records detailed (See NOL filed is well documented. 141.) shoes (6/2/04 kept everything, She HRT Vault, at 1409- 4/15/05, 142.) Notebook (6/2/04 CIM Ms. HRT including memos. information thought the Ms. Carroll that, es- after Petitioner’s testified Carroll that the tennis investigator her belief investiga- told the that Petitioner's At general Rite merchan- Stride (6/2/04 major shoes to retailers. HRT dise manager division, for the Pro Keds 223.) Mr. Luck testified that he knew of Dewey Newberry, testified that CIM had a major all the sales of Keds during the Rite, contract with Stride and had shipped 1980’s that he personally was responsi- the Pro-Keds Dude shoes to CIM in 1982 Sears, ble for the Penney’s, J.C. mili- (86 2613, 2619.) and 1983. RT He ex- (6/2/04 tary exchange 224, accounts. HRT plained that kept Stride Rite records of 229-32.) He testified that posi- he is placed by the orders its including clients tive that there were no sales of the Pro- color, quantity, the and size of particular Keds Dude tennis shoes to Sears or (86 shoe that is sold to a client. RT 2619- other large retail companies or chain 20.) Newberry’s To knowledge, the Pro- stores in the western United States. Keds Dude shoe was anywhere not sold in (6/02/04 239-40.) 231-32, HRT At the California, or elsewhere in the United hearing, Mr. Luck testified that he has (86 States on a retail basis. RT reviewed the trial testimony of Newberry 2624.) Newberry specifically was asked if and the records admitted into evidence at shipped any Stride Rite of the Dude model trial, and confirms that such testimony and tennis shoes to Penney, J.C. Montgomery records are consistent Ward, Fedco, with his recollection Target, or and he indicated (86 2621.) regarding the they did sales of not. RT at Pro-Keds Dude ten- He was (6/02/04 224; Answer, asked if it nis shoes. would be a fair HRT statement that Ex. 1.) only place 66 at the shoes Mr. Luck would have ar- stated that Mr. New- rived in berry California is at type thorough some was a person state with regards facility, agreed and he (6/02/04 that would to reviewing be the and checking files. (86 2622.) 233.) case. RT He authenticated the HRT Rather, the Dude tennis shoes Dude tennis shoe information Pro-Keds shoe, the low-end shoe of a in the company’s a “bid” were available wholesale was institutions, brand, such addition, Newberry sold particular catalogue. testified (6/2/04 226-27.) HRT prisons Luck, as like CIM. that Don who worked national that the Luck also stated he knows Mr. department accounts for sales would be public not available to Dude shoe was knowledgeable most the contracts about (6/2/04 major HRT through any retailer. of California for the Pro- the State 232.) (86 2640-41.) RT Keds Dude tennis shoes. regarding presence Information could not rule out Mr. Luck in Dude Pro-Keds tennis shoes whole- knowledge sales to small personal own presented catalogue sale was at trial and the Pro-Keds Dude shoe stores because shoe to investigate. was included the wholesale to defense counsel shoe available catalogue sales would and because such placed Mr. also into perspective Luck brought have his desk or been crossed of the Pro-Keds Dude tennis number 241.) (6/2/04 HRT But to his attention. Rite manufactured Stride in 1982 shoes testimony, confirmed in his as Mr. Luck comparison to other retailers of canvas who re- Newberry person was the Mr. (6/2/04 HRT basketball shoes. 254- corporate Rite records viewed the Stride He estimated Stride Rite sold on his search of and testified at trial based 80,000 of the Dude approximately tennis there no retail sales the records that 247) shoes, (6/2/04 HRT competi- while its tennis shoes. Pro-Keds Dude thirty selling tor Converse million (6/2/04 230, 233, Luck HRT Mr. did Champion pairs eighty of the Oxford dispute the not comment nor contents million shoes pairs loose-lined tennis Newberry’s corporate records or Mr. 1982.(6/2/04 HRT testimony he not review those because did warden erroneous- Although former Newberry pre- time Mr. records at the Dude ly the Pro-Keds tennis believed testify in Petitioner’s state court pared locally public to the shoes were available (6/2/04 HRT So trial. while Sears, as cred- though major retailers such Luck rule sales to small Mr. cannot out testimony employees ible Stride Rite personal knowledge, shoe stores from trial, Luck, at Newberry, at and Mr. Mr. nothing testimony cast doubt in his that evidentiary hearing, the establish Newberry’s testimony or Mr. the upon were not sold Pro-Keds Dude tennis shoes admitted into evidence corporation records (6/2/04 233, any comparable retail store 242, to Sears or HRT at trial. Moreover, 251.) the coast. CIM Luck stated that Stride Rite West Mr. very complete Corporation and there records establish kept records Stride Rite of made to smaller purchase would be records sales contract with that CIM had 242.) (6/2/04 232, HRT retailers. Corporation, the manufacturer Stride Rite shoes, the Dude tennis for of Pro-Keds trial, The Court notes at Petitioner relevant time Dude tennis shoes at the the were in the was aware that Dude shoes addition, kept Rite accu- period. In Stride (86 RT catalogue. Pro-Keds wholesale all and the con- rate of its sales records 2638.) the Newberry testified that Dude Pro- at trial showed that provided tracts catalogues past shoes were Keds Dude tennis shoes sold years escaped fifteen before Petitioner 2638.) (86 primarily to It is not in California but sold from CIM. RT new retailers 1,890 including state institutions the sale of Pro-Keds Petitioner never re- pairs (85 2546.) of Pro-Keds Dude tennis shoes 2511, turned. Taylor RT Mr. CIM Petitioner was where incarcerated. signed eleventh-hour declaration penned by a defense investigator, who de-

c.Testimony of Lieutenant stroyed her notes of the interview. Donald Smith (6/02/04 11-12.) HRT The declaration evidentiary At the hearing, the Court only stated the shoes he ever gave Peti- Smith, also heard from Lieutenant Donald tioner Flyers, were P.F. not Pro-Keds. in charge Investigative officer Ser- Cooper, 358 F.3d (6/2/04 211.) vices for CIM. HRT At the hearing, he verified his statements and Preliminary Hearing Testimony I. testimony pre-trial motions and the On November prelimi- at the trial, copies that he obtained pur- nary hearing, Taylor testified pros- for the chase contracts between CIM and the ecution that he was Reception housed at Corporation, Keds provided those to (4 (6/02/04 4.) 3, Center prosecution. 212; Taylor West CIM. PRT HRT see (Trial 108-109; PRT responsible 85 RT 2487 for checking Exs. in and out all 17); 69.) Answer, (4 Ex. Lt. Smith also activity testi- inmate recreational equipment. evidentiary 6.) fied at the hearing that he has PRT gym came into the no being recollection of asked to investi- (4 facility West in May R.C. of 1983. gate prison the source of the tennis shoes. 4.) PRT Before Petitioner was transferred (6/2/04 212.) HRT Lt. Smith also testified from the medium-security facility at CIM prisoners frequently played basketball to a minimum-security facility, Taylor Mr. they organized and that their own teams. issued Petitioner a pair of state-issued ten- (6/2/04 HRT (4 5.) nis shoes. PRT The shoes were (4 black Taylor Pro-Keds. PRT Mr. d.Testimony of Detective Pacifico got pair never of Pro-Keds tennis In order to any' determine if records (4 shoes back from Petitioner. PRT exist at the San Bernardino Sheriffs De- partment regarding alleged phone call Testimony ii. Trial from Ms. regarding Carroll the CIM ten- trial, At Taylor again Mr. testified for shoes, nis Detective Derrick Pacifico testi- (85 prosecution. RT May fied at evidentiary hearing on June Taylor Mr. worked as a recreational 2004. Detective Pacifico testified that he at instructor facility R.C. West at through looked all of the files at the San (85 2500-01.) CIM. RT He handed out Bernardino Sheriffs Office and that he equipment, including tennis shoes. could not find indication of a contact (6/3/04 46-47.) they Pro-Keds, shoes from Ms. stocked included Carroll. HRT P.F. Flyers, and assorted Converse tennis e.Testimony Taylor of Inmate James (85 2501-02.) shoes. RT Taylor Mr. iden- (Trial tified the Pro-Keds tennis shoes challenge Petitioner’s next effort to Ex. 38) (Trial 51) and the shoe-print evidence tennis-shoe box Ex. alleged rests on the Taylor’s recantation of inmate as the Pro-Keds James trial that were available (Pet. 21.) testimony. at Taylor Mr. testi- checkout to gym May inmates 1983.(85 2503.) fied at trial that gave he Petitioner a pair RT he him for Pro-Keds when he traded by the name and knew Petitioner Taylor Mr. 2570.) 2504.) (85 (85 At RT right RT size. got Trautman. David of pair a first, Petitioner Taylor Mr. issued Testimony Evidentiary Hearing iii. days before Three or four Flyers. P.F. security, Mr. left for minimum Petitioner Taylor Mr. testified On June Pro- pair a of black Taylor gave Petitioner Taylor began Mr. evidentiary hearing. an 2547.) (85 Taylor Mr. RT Keds. identify that in 1983 he could by explaining sometime the shoes gave Petitioner Flyer P.F. basket- the difference between May after the tenth month of shoes. and Pro-Keds basketball ball shoes (85 2546.) gave He Petitioner RT month. 3.) (6/02/04 correctly iden- HRT He also Flyers and then the Pro-Keds the P.F. a Pro-Keds Dude of both pictures tified 2546.) (85 Taylor RT Mr. day. the same (6/02/04 Flyer tennis shoe. and a P.F. (85 the shoes. recall the size of could not CC, 5, 6; Evidentiary Hr’g Ex. Resp. HRT 2552.) Pro- got He never RT (P.F. Flyer) photos and photo (85 RT back from Petitioner. Keds shoes 3(Pro-Keds).) He further identified 2511.) canvas being shoe as a black Dude tennis cross-examination, Taylor was Mr. On the back the words Pro-Keds on shoe with giving Peti- why he did not mention asked (6/02/04 4; Evi- Resp. HRT the shoe. he testi- Flyers P.F. when pair tioner a (P.F. CC, Flyer) photo Ex. dentiary Hr’g Tay- Mr. hearing. preliminary at the fied (Pro-Keds)). 2 and 3 photos shoe in that “it wasn’t the explained lor Flyer that the P.F. is explained He 2545.) (85 Taylor tes- RT Mr. question.” the Pro- shoe and that everyday tennis of tennis gym had four brands tified the shoe that he Dude is a better-made Keds Pro-Keds, Converse, Nike, shoes: players. give to basketball would a Taylor not have Flyers. Mr. did P.F. 3-6.) (6/02/04 is consistent HRT This shoes, always room with the key to the testimony prisoners Lt. Smith’s a correctional into the room with went teams. unofficial basketball organize would 2551.) (85 RT The shoes present. officer (6/02/04 gave He Petitioner HRT not in a Taylor gave to Petitioner Mr. 43.) (6/02/04 HRT pair of Pro-Keds. know the Taylor did not and Mr. box hearing at the Taylor could not recall Mr. 2552.) (85 RT condition of shoe. pair Petitioner a given he had whether a state- making recall Taylor Mr. did not them for exchanging Flyers prior P.F. Investigator Hernandez ment to CIM (6/02/04 Dude tennis shoes. Pro-Keds Pro- gotten some Petitioner had somehow trial verify did He HRT (85 recording tape RT A Keds. truthful, however, and stated testimony as Taylor’s jury to the of Mr. played given had was sure he that he Investigator Hernan- with CIM interview shoes. Dude tennis of Pro-Keds pair interview, Taylor Mr. said In the dez. (6/02/04HRT Brogan pair had a of brown that Petitioner investigator interview with During the shoes, shoes. and no tennis issue prison that Coke, many times Taylor stated Mr. 2569.) (85 him pair gave first he RT Dude tennis Pro-Keds gave he Petitioner Flyers, and then some- pair of P.F. was 12.) (6/02/04 He told investi- HRT shoes. of Pro- up pair came with a Petitioner how truth told the that he had 2570.) gator Coke (85 Taylor then RT Mr. Keds. nothing that there was shoes, already at trial and pairs two gave he Petitioner said (6/02/04 12.) expound upon. Id. at Mr. gave fleeted that he Petitioner the Pro- Taylor that explained by he was confused Keds Dude tennis shoes. He also correct- his investigator conversation with Coke. ly pictures identified of the Pro-Keds (6/02/04 61.) 13, 26, 60, HRT He explained Dude tennis type shoes as the of shoes gave the Pro-Keds tennis shoes he Therefore, that he gave to Petitioner. Petitioner and that he identified the Court concludes therefore that there was (6/02/04 pictures at the hearing hearing, by no recantation Taylor Mr. and that CC, Resp’t’s Ex. photos nos. and 3 of the pah* Petitioner had a of Pro-Keds Dude Pro-Keds) were sometimes called “Pro escaped tennis shoes when he from CIM. (Id, Flyer Keds” or “P.F. Pro Keds.” at f. Correctional Officer Mason’s Taylor explained Mr. the declara- Testimony at Trial tion did not attempting reflect what he was Sydney Correctional Officer Mason tes- convey, gave that he pair Petitioner a tified at trial that issuing he recalled Pro- (6/02/04 Pro-Keds that were not returned. Keds Dude shoes either size 9 or 10 to 67-69.) Taylor unequivocal was at the an inmate who resembled Petitioner.42 hearing that gave he Petitioner Pro-Keds: (104 7176-78.) RT Officer Mason said he Taylor, Ms. Wilkens: sitting Mr. here did not know whether the shoes were new today, you do have doubt whatso- or used they but assumed were new be- you ever that the brand pro- of shoes (104 they cause a box with a lid. vided to Cooper prior Kevin to his RT escape from CIM that were not re- (sic) you

turned to testimony were Pro Ked ten- Based on the at the evidentia- nis shoes? ry hearing and review of the trial and Taylor: preliminary hearing Mr. I they transcripts, have no doubt that (sic), were Pro-Ked and these are the has failed to demonstrate a showing of models—middle and bottom on— actual innocence. The Ninth Circuit was page you whatever want to call that. concerned that particular type of shoe Ms. Wilkens: So Exhibit CC that’s in was not even available at CIM and thus you

front of now. Petitioner could not responsible have been Taylor. Mr. Yes. for making the evidence prints shoe in his prison-issued Cooper, shoes. See (6/02/04 358 F.3d at 1122. This is not the case as the con- Taylor’s Mr. testimony credible at the showing tracts purchase the CIM evidentiary hearing corroborates his trial Pro-Keds Dude shoes were admitted into testimony that gave he Petitioner a pair of evidence at the trial. Former Warden shoes, Pro-Keds Dude tennis which Mr. Carroll was mistaken about the source of Taylor correctly identified sight, and the shoes issued at CIM and their avail- that Petitioner never returned those shoes. ability in retail corporate stores. The Taylor Mr. rec- simply confused ords admitted Coke, interview with into evidence at trial con- investigator who de- stroyed her firm notes of the the sales of interview. He the shoes were to the believed that Center, his recent Training declaration re- Naval Forestry U.S. Ser- 42. The prisoner defense interviewed pair another er had a of Pro-Keds Dude tennis shoes. (Answer, before trial who also confirmed that Petition- Ex. freely to freely available to the defense juvenile and correc- vice, and numerous (Trial hospitals. discuss issue. and state tional facilities 69-75.) Answer, tri- 84-88; Exs. At Exs. executives, Rite According to Stride Pro-Keds Dude al, that the it was known were sold Pro-Keds Dude tennis shoes prison limited to were not tennis shoes pur- institutions. The primarily to state Pro- know that the inmates. It was also purchased that CIM chasing records show were featured Dude tennis shoes Keds at shoes from Stride Rite the Dude tennis (86 RT catalogue. Pro-Keds’ wholesale testimony period. time The the relevant 2638.) no evidence that retail There is Luck demon- Newberry Mr. and Mr. tennis shoes the Pro-Keds Dude sales of shoes that Pro-Keds Dude tennis strate made in California. were not retail California. Car- sold addition, to was known In Ms. Carroll hearsay not material roll’s unreliable is trial. There are at the time of the defense not violate inculpatory evidence does coun- messages from her to defense phone evidence, totality Brady. Under testimony securing her and notes about sel concludes that there was no the Court 81.) (Answer, A Ex. in the defense file. (Answer, Brady violation. Ex. material references in the CIM vault notebook note defense investi- made to Petitioner’s a call had sold retail to if the shoe been Even (NOL filed on December gator coast, it would not a few stores on the East 4/15/05, Vault, Notebook 6 CIM of the shoe- change inculpatory nature fact, conducted an inter- In Mr. Forbush argued, Defense print evidence. counsel Sydney regarding Mason at CIM

view of records in corporate consistent with December tennis shoes on evidence, the Pro-Keds were 1984.(NOL 4/15/05, Vault, CIM Note- filed were avail- just prisoners, available but 1409.) Moreover, in November book 6 Forestry Navy, Depart- able to the Ingels Paul investigator defense ment, people kinds of different and all by telephone and Ms. Carroll contacted (Answer, Ex. prisoners. besides about the tennis told him her belief she that the Accordingly, it was never assumed (8/13/04 HRT In December shoes. limited to the shoes was distribution of investigator permitted Ms. Carroll inmates; mattered was prison what going with her spend a week Ingels linked to Petitioner. the shoes were over two- papers. her This was through CIM, which escaped from years her eleventh-hour and-a-half before tennis the Pro-Keds Dude clearly had to the Ninth presented declaration inmates, by the established for its as (Carroll’s shoe (6/2/04 HRT 125 testi- Circuit. Moreover, Taylor Mr. contracts. purchase (Ingels’ testimo- mony); HRT 133 8/13/04 Petitioner a credibly gave that he testified to the defense. available ny).) She was and that trial, Dude shoes addition, pair of the Pro-Keds at the time of she was had that the defense This shows only newspaper article in the CIM shoe issue. concerning prison investigate the shoe issue shoes CIM to vault notebooks access to 12, 1984.(See officials, December is an article dated in- cooperation from CIM and had Vault, 1738-A.) 8 at A few Carroll, CIM Notebook cluding Midge who was available later, defense days on December during the time when she had defense conducting investigator was at CIM Forbush prison shoes. read about the regarding the an interview of Officer Mason prior returned them to his connecting Petitioner never dence Petitioner to the mur- facts, escape from These combined CIM. Before pres- ders. Petitioner admitted his consistency with the between the shoe house, ence at already the hideout he knew print where from the hideout house Peti- fingerprint that jar his was on a sleeping tioner was with both the shoe kitchen, closet, his semen inwas print Ryen outside master bedroom phone girlfriends he had made calls to old sliding glass and the on the door one sheet shortly from the hideout house before the bed, Ryens’ from the are what made the testimony massacre. Petitioner’s trial can- shoe-print incriminating. evidence support showing not serve to of actual innocence,

Finally, prosecution newly both because it is not statements discovered, in opening closing argument 2244(b), § about the 28 U.S.C. and be- availability of the Pro-Keds Dude tennis it cause does not rebut clear and con- shoes prejudicial. were not material or vincing express evidence the factual find- Donnelly DeChristoforo, See v. 416 U.S. ings of the Supreme California Court 94 S.Ct. 40 L.Ed.2d 431 which presumption are entitled to a (1974). prosecutor The based his com- 2254(e). § correctness. See 28 U.S.C. testimony ments on the at trial. Based on testimony Taylor of Mr. and Officer Ma- Ryen’s 7. Josh statements son, in receipt Petitioner was of the Pro- Petitioner next Ryen contends Josh Keds Dude tennis shoes at CIM and the gave a description of the assailants that shoeprints from these were found shoes (Pet. him, 23), exonerates at but this evi- Ryen inside the hideout house and home. (95 already dence was admitted at trial. addition, myriad there was of evi- 4971-73.) 4932-70; RT jury The already connecting dence Petitioner to the mur- rejected Petitioner’s claim of innocence Therefore, ders. even if there were a based on the speculation eight-year- of an misstatement, prosecutor’s statement child, shortly old made after he was brutal-

was not material such that the results of attacked, ly Hispanic the three males proceeding would have been different. who came to looking his home for work Brady, See at U.S. 83 S.Ct. 1194. family before the barbeque left for the Additionally, Supreme the California responsible the murders his denied Brady Petitioner’s claim on the (95 4932-70; night. home later that RT 13.) (Answer, Accordingly, merits. Ex. 4971-73.) post-conviction testing of the Court concludes Petitioner has failed physical at evidence the crime confirms Brady show a material regard- violation guilt. A-41, Evidence exhibit ing the Pro-Keds Dude tennis shoes. from the blood crime scene discovered Credibility 6. Petitioner’s Lack of victims, shortly discovery after the of the is consistent with blood from an African argues Petitioner that his inno Hispanic American and inconsistent with a cence is evident because he had no motive (93 or White individual. RT (Pet. More- Ryens to kill Hughes. and Chris made, over, post-conviction testing DNA con- previously this firms that A-41 argument jury trial, is Petitioner’s blood. jury {See to the and the (106 rejected Supplemental Physical testimony. RT DOJ Evidence says nothing Report Sept. Petitioner’s admission of facts Exam dated Con- credibility considering about his exploitation speculation evi- tinued ceased, and had a mo abusing drugs horrific was through a had been victim who for a Furrow since he left disparaging a reliable basis tive for is not experience Schlup, murders, See actual innocence. and had finding night of the of the her 851; Thompson, at 115 S.Ct. 513 U.S. child relationship with her begun a sexual 559, 118 1489. at S.Ct. (Answer, 523 U.S. friend, Glasgow. Debbie hood Decl.).) (Furrow Significantly, Ex. 37 Multiple 8. assailants night the of the had an alibi for Furrow at argument revives his Petitioner also a that He seen at concert murders. of the nature and number trial that Helen Park with Debbie night Glen his wounds, confirms and victims weapons, strat poor It have Glasgow. would been (Pet. evi- at The forensic innocence. they traveled from egy to claim There is Petitioner. only inculpates dence Hills, mur Helen to concert in Glen Chino evi- with the forensic nothing inconsistent Ryens Hughes, dered the Chris result, Petition- guilt. As a dence and his (See Answer, returned home to Mentone. multiple-assail- to attempts revive er’s (Furrow 39(Darnell Decl.); (map); 37 (106 7800-04), trial, RT argument ant Decl.); Decl.); (Curry (Schepling inno- of actual constitute evidence do not Decl.).) event, Roper’s In statements 324, 115 at Schlup, 513 U.S. cence. See do not constitute reliable about Furrow at 851; 523 U.S. Thompson, S.Ct. inno support could an actual evidence that 1489. S.Ct. Schlup, 513 U.S. at cence claim. See 851; at Thompson, 523 U.S. 115 S.Ct. Lee Furrow 118 S.Ct. 1489. jurors were de- contends the finding reasonable of a basis for prived Ineffective Assistance of Counsel a. failed to prosecution doubt because Regard to Lee Furrow with about jury information with provide Petitioner’s claim The also denies Court coveralls, Mr. blood on the presence of counsel con- ineffective assistance destruction background, and the Furrow’s should have cerning trial counsel whether (Pet. at Petitioner is coveralls. of the to Lee Furrow. tried to link the coveralls prosecution confusing the burden (Pet. 61-64.) to the This defers in estab- his burden on habeas trial with deny- decision Supreme Court’s California of actual innocence. lishing a claim pursu- claim on the merits ing Petitioner’s the coveralls jury was aware 2254(d). § Petitioner’s ant 28 U.S.C. (102 hardly It is destroyed. RT satisfy require- claim also does did not that defense counsel surprising 2244(b). § ments of 28 U.S.C. testimony Roper. of Diana present readily appar- credibility issues were Her Ineffective Assistance I. Claim of 53.) Moreover, (Answer, Ex. ent. Regard Lee Furrow Counsel With has confirmed testing DNA post-conviction Merits Denied on the is Supplemental DOJ guilt. {See dated Report Exam Physical Evidence that defense not show Petitioner does Sept. fell below performance trial counsel’s by failing pres- standard constitutional and cov Mr. Furrow The stories about Furrow to allegedly linking ent evidence T-shirts, eralls, originate and hatchet at trial. or other evidence the coveralls now de Roper, Diana Roper. Diana Satisfy fact, evi- ii. Petitioner Does Not presented defense trial counsel Requirements of cover- pair of 28 dence of the destruction 2244(b) Ryens/Hughes § linked to the allegedly alls U.S.C. enforcement wit- through law murders adju previously If Petitioner has (102 6545-55), nesses, thereby allowing RT a claim ineffective assistance of dicated the destruction of the exploit counsel to Court, pending counsel in this his claim of encountering the credi- coveralls without of counsel must be ineffective assistance counsel bility that defense problems knew 2244(b). § New fac dismissed. 28 U.S.C. testimony presenting arise with would claim grounds support legal tual in of a testimony of Ka- Roper. from Diana already presented are not has been sister, Curry, Roper’s would ree Kellison mandatory sufficient to evade the dismiss credibility problems encounter similar 2244(b). § requirement al of 28 U.S.C. attempting in to connect the the defense Babbitt, 177 at 746. See F.3d Ryen/Hughes to the murders coveralls already his complained Petitioner about (Answer, Ex. 37 at through Furrow. performance trial in a defense counsel’s Moreover, overwhelming evi- given the myriad of claims of ineffective assistance jury, guilt dence of Petitioner’s before the corpus of trial counsel in his first habeas any prejudice. has not shown Petitioner I, 63-147, petition, Cooper Supp’l Pet. at Supreme As both the California Court all of which were denied on the merits already expressly have con and this Court I, 92-CV-427, 25, Cooper Aug. this Court. “ cluded, an extraordi Petitioner ‘received gravamen 1997 Order at 7-33. The of the ” narily vigorous and able defense.’ Coo claim of ineffective assistance of trial coun- I, 92-CV-427, 25,1997 at per Aug. Order 8 same, regardless is the sel whether 824, 53 at 281 Cal. (quoting Cooper, Cal.3d presents legal Petitioner new and different 865). 90, trial Rptr. 809 P.2d Defense arguments allegations. or different factual background educational counsel’s extensive Babbitt, 177 at 746. Petitioner See F.3d experience were devel prior litigation allegations made trial fail- about counsel’s evidentiary hearing before this oped counsel, to failure to ure utilize second I, Cooper Cooper I. 92- See adequate investigation, conduct an and to CV427, 25, 1997 Aug. Order at 8. in particular ways respect advocate Moreover, and the Cali this Court both I, Supp’l Pet. at Cooper evidence. See Supreme fornia Court found the evidence 121-41. The thrust of Petitioner’s attack overwhelming. guilt of Petitioner’s to be present on defense failure to his counsel’s I, 92-CV-427, Aug. 1997 Order Cooper connecting evidence Mr. Furrow to the 53 at 281 (quoting Cooper, Cal.3d is his claims of coveralls the same as other 865). Accordingly, Cal.Rptr. P.2d ineffective assistance of counsel raised in decision Supreme the California Court’s Thus, petition. his first DE- this Court rejecting of Petitioner’s claim is the merits pursuant NIES the claim to 28 U.S.C. law, nor an unrea contrary not to federal 2244(b)(1). § facts, of the since sonable determination Also, presented Petitioner could have deficient, defense counsel nor was legal and factual of his claim basis attorney’s prejudiced previously diligence. with due 28 U.S.C. strategic decisions. This Court therefore 2244(b). § The connection between Lee pursuant claim to 28 U.S.C. DENIES this 2254(d). Roper § Furrow and Diana has been known 851; (Answer, Thompson, 523 U.S. Ex. S.Ct. of trial. since the time have post-conviction claim could 1489. The diligence this 118 S.Ct. With due first federal in Petitioner’s presented testing guilt been confirms Petitioner’s DNA diligence Beyond the due petition. habeas allegations regard and refutes Petitioner’s required be Petitioner would showing, A-41 is from an African ing Koon. Item underlying his that the facts demonstrate (93 American, 4424); RT Koon is white. claim, light proven if viewed cigarette found Petitioner’s DNA is whole, would be sufficient evidence as (See wagon. Ryen station butts convincing evidence by clear and establish Physical DOJ Evidence Supplemental error, no that, the constitutional but for 2002.) Sept. dated Peti Report Exam him have found juror would reasonable Doug Ryen’s blood are tioner’s blood and See Ryen/Hughes murders. guilty of the near the crime scene. on the T-shirt found 2244(b). § Petitioner does not 28 U.S.C. Physical Evidence DOJ Supplemental {See guilt Petitioner’s requirement. meet this Sept. dated Report Exam overwhelming evi- by was demonstrated testing and EDTA mitochondrial DNA trial, has been reaffirmed dence at post-con testing have not undermined testing. DNA Pe- through post-conviction confirming Pe testing DNA results viction by clear and does not establish titioner con guilt. previously The Court titioner’s juror that no would convincing evidence adjudicated claims Petitioner’s sidered if in- presented have convicted account, Wisely’s patient mental regarding at trial. concerning Lee Furrow formation ruling affirmed Court I, petition. Cooper 92- denied a successive Anthony Wisely’s Mental Patient CV-427, 25, 1997 Order. This Court Aug. Alleged Report of the Kenneth allegations in further evaluated the has Koon “Confession” evidence, light of all the and DENIES multiple Petitioner contends the merits. claims on patient, of a mental hearsay statements his inno- Anthony Wisely, demonstrates Ineffective Assistance of Counsel a. unreliability jury’s and the cence Denied on Kenneth Koon is Re (Pet. 28.) The statements that verdict. the Merits con- to Kenneth Koon Petitioner attributes hearsay by mental multiple related any sist Similarly, denies claims the Court Wisely. Petitioner at- patient Anthony as of counsel claim ineffective assistance Information attributed to tie the tempts Supreme regard- Court did the California Diana patient to Koon the mental Mr. (Pet. 58-61.) This Court Koon. ing Mr. Roper after Furrow left Roper. Koon met claim on the to the denial of the defers her, her. Koon later married and Koon Supreme Court by the California merits Ryen/ has denied involvement 2254(d) § and also pursuant to 28 U.S.C. (Fur- (Answer, Exs. 37 Hughes murders. 2244(b). (Answer, Ex. § under 28 U.S.C. 54(Koon Decl.); Decl.); (Curry row court’s denial of Petitioner’s The state Decl.).) contrary to merits is not claim on the by the as enunciated United federal law a mental Considerably more than v. Court in Strickland Supreme States a confes version of patient’s secondhand 668, 687-88, 104 466 U.S. Washington, to demonstrate required Koon is sion (1984),and does 2052, L.Ed.2d 674 Schlup, 513 U.S. at S.Ct. innocence. See actual 865). Moreover, both this and the determina- not rest with an unreasonable meaning of 28 the com Supreme of the facts within the California Court found tion 2254(d). guilt § U.S.C. bination of evidence of Petitioner’s I, 92-CV-427, overwhelming. Cooper be trial, Roper, At the link Fur- between Aug. (quoting Cooper, 1997 Order at 8 row, and Koon was noted an in-cham- Cal.Rptr. 53 Cal.3d at 809 P.2d conference with counsel when defense bers 865). was not deficient Defense counsel about provided report counsel was prejudiced and Petitioner was not as the (97 Wisely and Koon. RT patient, mental testing has confirmed post-conviction DNA given Counsel was time to re- guilt. Accordingly, the Cali information to determine view the new Supreme rejecting fornia decision Court’s (97 proceed. RT The main how to claim not the merits of Petitioner’s is con and Furrow is connection between Koon law, trary to federal nor an unreasonable Roper. Roper Diana met Koon about Therefore, determination of the facts. after left her which was a week Furrow murders, pursuant Court DENIES this claim to 28 week after the and she later 2254(d). (Answer, § married Koon. Ex. 54 at U.S.C. Defense trial counsel cannot be Satisfy b. Petitioner Does Not strategic for a decision not to call faulted Requirement of 28 During at trial. the time of the Roper 2244(b) § U.S.C. murders, Roper using methamphet previously adjudicated If Petitioner has daily amine on a basis and in the midst of a claim of ineffective assistance of counsel breaking up knowing with Furrow he was Court, pending in this his claim of ineffec- having relations with one of her sexual tive assistance of counsel must be dis- (An Mends, Glasgow. childhood Debbie 2244(b). § missed. 28 U.S.C. New factual swer, 53; Ex. Ex. grounds legal in claim support of the same Koon knew about Furrow was What already presented which has been are not (Answer, hearsay Roper. Ex. at 54 mandatory sufficient to evade the dismiss- strategic at trial to avoid Such decisions 2244(b). Babbitt, § al requirement See Mends, or having Roper, her Furrow’s In prior proceed- 177 F.3d at 746. habeas coveralls, testify concerning relatives ings, the Ninth Circuit concluded the ref- Roper’s relationship tennis shoes or erence to the Koon confession the sec- grounds Koon and Furrow are not for a petition ond federal was not sufficient to

Strickland claim under these circum- raise a distinct claim of ineffective assis- Strickland, 690, stances. 466 at See U.S. Koon confession tance of counsel 104 S.Ct. 2052. claim petition. Cooper, first federal has failed to show that his Petitioner 274 at 1274. F.3d Strickland, was deficient. See 466 counsel illustrates, As the Babbitt case be 687, at 104 S.Ct. 2052. As both the U.S. of Petitioner’s ineffec gravamen cause the Supreme Court and this Court California assistance of counsel claim was essen tive found, already expressly have Petitioner “ claims, tially new the same as his earlier extraordinarily vigorous ‘received ” I, grounds presented factual such as those 92-CV-427, Cooper able defense.’ pertain claim still to defense (quoting Cooper, 1997 at 8 instant Aug. Order Cal.Rptr. investigation presentation P.2d counsel’s 53 Cal.3d at 281 809 and, therefore, F. Petitioner Petitioner’s defense do not Does Not Meet the Re- quirements 2244(b), of 28 claim within the U.S.C. constitute different 2244(b)(1). Schlup, or Herrera § In meaning of 28 U.S.C. event, concluded that the Ninth Circuit sum, In has had ample oppor- diligence

Petitioner could not meet the due tunity for review in both state and precluded from requirement and he was courts, exploring every possible federal av- filing petition a successive because of his enue of challenge his conviction. All of requirements of inability to meet the 28 these have come challenges back the same: 2244(b)(2). Cooper, § 274 F.3d at U.S.C. overwhelming there is evidence Peti- 1275. It is axiomatic that Petitioner is not person guilty tioner is the mur- of these diligence requirement the due able to meet ders. New evidence of innocence must be now when he was unable to do so reliable presented evidence was not at Accordingly, Petitioner’s claim of ineffec- trial. Schlup, See 513 U.S.

tive assistance of counsel is DENIED un- 851; Thompson, S.Ct. U.S. § 2244.

der 28 U.S.C. allega- S.Ct. 1489. Most of Petitioner’s already

tions relate to evidence that was presented rejected. at trial and previously E. of Actual Innocence is De- Claim addition, the remainder of allega- nied on the Merits tions rest on unreliable or incorrect infor- Petitioner’s claim of actual innocence mation and sources.

was heard denied on the merits After all considering pre- of the evidence (Sixth Supreme California Court. State by sented Petitioner and the substantial 12-37; Answer, Pet. at Ex. Habeas court, review, record from trial the direct rejecting sixth merits of Petitioner’s review, and collateral the Court concludes state petition, eleventh-hour habeas that Petitioner has not meet his burden unanimously Supreme California 2244(b), requires under 28 U.S.C. which following: found among things, other a “factual claim not [ ] through discoverable the exercise of due previous petitions As with the five for diligence” that establishes “clear and petitioner of habeas that corpus writ has that, convincing evidence but for constitu- challenging judg- filed in this court error, tional no reasonable factfinder ment, petition this casts no doubt applicant guilty would have found the guilt validity or the petitioner’s if underlying offense.” Even Petition- judgment. showing er has met the under 28 U.S.C. (Answer, Ex. 2244(b), § state court’s decision is not contrary to an express finding application The same was reiterated or unreasonable respect clearly to the denial of Petitioner’s established federal law. 28 2254(d). (Answer, § petition. seventh state habeas U.S.C. Neither has Petitioner re- Schlup, Ex. This Court defers to the Califor- met his burden under which Supreme quires light nia decision it is Petitioner to show that “in Court’s because evidence, evidence, including it contrary to federal law as enunciated all the new Court, likely more than not that no reasonable Supreme the United States nor is juror petitioner guilty it on an determina- would have found is based unreasonable 2254(d). beyond § a reasonable doubt.” For tion of the facts. 28 U.S.C. (Pet. 57.) Therefore, Petitioner con- reasons, also concludes at the Court same testimony in stringent Deputy Eckley’s not met the has tends Petitioner Herrera, an “ex- requires regarding which at trial pre-trial proceedings burden of and truly showing of “a traordinarily high” falsely the destruction of the coveralls con- of ‘actual inno- persuasive demonstration veyed destroyed that he the coveralls on ” Further,' Petitioner also fails to cence.’ his own. open is “no state avenue show that there evidentiary The Court conducted Herrera, a claim.” process such Eckley hearing Deputy and heard 113 S.Ct. 853. California U.S. Deputy Schreckengost, and Ken “KS” to actual denied Petitioner’s Supreme Court considering address this claim. After (see merits, on the Sixth innocence claim testimony evaluating their their credi- Answer, 1237; Ex. State Habeas Pet. witnesses, bility as the Court DENIES 13), of California denied Governor claims. Petitioner’s clemency. This Court application present- claim as not DENIES Hearing A. Pretrial and Trial Testi- claim cognizable federal habeas ing mony of actual inno- upon based an assertion 11, 1984, during pretrial On June Herrera. cence under evidentiary hearing, Deputy Eckley testi- DENIES Petition- This Court therefore dispatched fied he was to the home of to 28 U.S.C. pursuant er’s claims Mentone, California, Roper which Diane 2244(b), alternatively Schlup § under approximately forty located miles pursuant Herrera and on the merits Ryen Roper from the home. Ms. directed § 2254. 28 U.S.C. a pair him to a closet where he found Eckley testified that Deputy coveralls. Withholding of Evi- V. Prosecution’s heavily spotted were not the coveralls but Presenting False Testi- dence and dry the knew that had stains below mony Regarding the Coveralls color, opposed and reddish as alleges that his constitutional usually color of dried bloodstains brownish by suppression the of rights were violated (32 past. that he had seen in the RT exculpatory evidence and the material 3211.) 3183-84, 3205, Deputy Eckley also testimony regarding presentation of false hair, sweat, that the coveralls had testified by Deputy the coveralls the destruction of (32 dirt, RT and manure on them. 3183- Eckley of the San Bernardino Frederick 84.) 54-58.) (Pet. at Petition- Office. Sheriffs Although Roper Ms. did not know who in December he dis- er claims that coveralls, Depu- owned the her father told report where a “KS” disposition covered a ty Eckley Roper that Ms. felt that the on the destruction of the signed had off Ryen to the importance coveralls had some this, alleges coveralls. From experi- case based on a “vision” she had Eckley did not act alone Deputy enced, opposed anything as she had coveralls, did so delib- destroying the but 3204-05.) (32 KS, RT After actually a seen.44 erately superior. in consultation with "just know” that Eckley Roper's that Ms. trance” which caused her to Deputy 44. stated knowledge regarding they the connection between were worn someone involved in the Ryen/Hughes the coveralls and the murders Hearing (Resp’t Evid. Notebook murders. some other was obtained after she and 6-7.) Ex. LLLLL at through "some kind of "witches” went (4/1/05 73-74.) HRT Yucaipa He had no the coveralls to the Eckley took them, called the tagged Deputy Schreckengost and he recollection that substation department homicide and anything processing San Bernardino to do with the had or homicide message. Although (4/1/05 112.) left HRT signing report. his call about never returned department Deputy Eckley did not have a discussion coveralls, Eckley testified that Deputy Deputy Schreckengost regarding with investigator defense For- spoke he destruction of the coveralls. He testified (32 the coveralls. RT 3205- bush about destroy that he made the decision to 06.) failing In of after December on consulting coveralls his own without homicide, a return call from and receive (4/1/05 115.) anyone. HRT The testimo- believing the coveralls “had no value to ny Deputy Shreckengost Deputy case,” destroyed Deputy Eckley the cover- Eckley support do not Petitioner’s claims (32 3194.) Deputy Eckley alls. RT simi- perjury withholding or of evidence. coveralls at trial. larly testified about the (102 RT Withholding C. The of Ev- Claims idence and False Presentation of Evidentiary Hearing Testimony B. Testimony Have No Merit Eckley KS claim concerns whether evidentiary hearing The Court held Eckley Deputy consulted someone else be- 1, 2004 where former April Deputy destroy fore decided to he coveralls. Schreckengost, Ken and former Sheriff reveals, testimony Deputy Eckley As the Deputy Eckley Deputy testified. Schrek- acted in destroying on his own the cover- at the engost Deputy Yucaipa was Sheriff Eckley Deputy Deputy alls. Schreck- the time of the murders. during station engost did not have discussion about (4/1/05 January HRT he was Typically, disposition the coveralls. Deputy assigned promoted to Senior Deputy Schreckengost’s was in in- report deputies commander over the as watch only and he made sure that the form box (4/1/05 the field. HRT He had no properly filled out. initialing disposition recollection of re- Deputy Petitioner comments that Eck- port, recognized but his initials on the ley’s destruction of the coveralls was (4/1/04 report. HRT As watch policies violation of the of San commander, Bernardino disposition reports would (“SBSD”). Department normally have been in his inbox because Sheriffs Howev er, person “nine out of ten times” the who was aware at the time of defense not the report filled out would be on same Deputy Eckley comply trial that did not (4/1/05 In reviewing shift. HRT a in policies practices with the written and if disposition report, he looked to see the destroyed manual he the the SBSD when (4/1/05 filled report properly was out. (32 RT coveralls. Evidence of 56.) Deputy Schreckengost HRT stated policies practices the written and in SBSO Dep- the he never discussed coveralls with manuals at the time the coveralls were uty Eckley never seen the cover- and has destroyed newly is not discovered evi (4/1/05 HRT alls. possession dence. The defense was in of the of trial. the manuals time See Eckley a

Deputy deputy was former of People Cooper, v. 53 Cal.3d at 281 Department the Bernardino San Sheriffs 865(trial Yucaipa Cal.Rptr. stationed at from 1980 to 809 P.2d court did 988 admitting into This Court accords deference to the Cal-

not err in not evidence col- regarding manuals policy Supreme denying “sheriffs ifornia Court’s decision evidence”). preservation of lection and claim on the merits. 28 U.S.C. Petitioner’s Eckley poli- violated Deputy Even if SBSD 2254(d). § The state court’s denial of Pe- evidence, cy concerning the destruction of titioner’s claim on the merits is not con- testimony his consistent change it does not law, clearly federal trary to established destroyed the coveralls that he without does not rest with an unreasonable anyone. discovery The consulting determination of the facts within the report upon does not cast doubt disposition 2254(d). § meaning of 28 U.S.C. Accord- Eckley, testimony Deputy and does ingly, the Court DENIES this claim on findings and conclu- not undermine 2254(d). § pursuant merits 28 U.S.C. this and the sions both California that the coveralls Supreme Court were Satisfy D. Petitioner Does Not exculpatory evidence in Petition- material Requirements 28 U.S.C. er’s case. 2244(b) § jurors claims Further, pur- the Court denies the claim they not have convicted him had would 2244(b). § suant to 28 U.S.C. If Petitioner (Pet. heard of Petitioner’s new theories. adjudicated previously relating has a claim by juror Any comment a concern in to the destruction of the coveralls this ing process reaching mental his/her Court, pending withholding claim of trial unsupported, verdict Petitioner’s is testimony relating evidence and false inadmissible, and irrelevant to the claim the destruction of the coveralls must also presented by Petitioner. Fed.R.Evid. 2244(b). § dismissed. The be 28 U.S.C. States, 606(b);45 Tanner v. United gravamen withholding of the claim of evi- 2739, 97 U.S. 107 S.Ct. L.Ed.2d same, testimony dence false is (1987) (in juror’s general statements presents of whether Petitioner regardless traditionally have been inadmissible to im legal arguments different or dif- new and Elias, verdict); peach a States v. United Babbitt, allegations. ferent factual See (9th Cir.2001) (“[a] 1003, 1020 269 F.3d revisiting F.3d at 746. Petitioner is not, 606(b), may court under Rule consider destroyed, reasons coveralls juror’s testimony ‘regarding the affected renewing deputy his attack on the who was reaching the ver processes mental responsible for the coveralls’ destruction. ”) dict.’ reliance on state I, 92-CV-427, Amend. Pet. at Cooper See jurors improper. ments from is No state impact 310-13. the destruction regarding process ments the deliberative rights the coveralls on Petitioner’s at trial 606(b). are admissible. See Fed.R.Evid. already adjudicated by has been this Moreover, hardly disposition report I, Court, 92-CV-427, Aug. Cooper away” from “pointing constitutes evidence 51-52, legal argu- Order at and the current Petitioner and does not undermine allegations ments and different factual physical linking evidence Petitioner to the beyond stemming discovery disposi- from the of a proof crime reasonable doubt. 606(b) provides 45. Federal Rule of Evidence dissent from the verdict or indictment or con- "juror may testify that a not ... to the effect cerning juror’s processes....” the mental upon juror's anything ... mind or emo- 606(b). Fed.R.Evid. influencing juror tions as to assent to or

989 court, Supreme and the trial signing initials off on Court report tion the coveralls are not suffi- destruction of exculpato the coveralls were not material mandatory dismissal cient to evade ry evidence and that the law enforcement 2244(b)(1). § requirement of 28 U.S.C. I, acted in good Cooper authorities faith. Babbitt, 177 F.3d at 746. See 92-CV-427, 52; Aug. at Order Cooper, Cal.Rptr. 53 Cal.3d at Even if Petitioner’s claim were sub- circumstances, ject mandatory dismissal under 28 P.2d 865. to Under these 2244(b)(1), § his claim is still de- U.S.C. requirements Petitioner does not meet the presented he could have 2244(b)(2). nied because § of 28 U.S.C. claim

legal pending and factual basis of his Withholding Prosecution’s of Evi- VI. diligence. due previously with See 2244(b). dence and Presentation of False already § com- Petitioner U.S.C. Testimony plained about the destruction of the cover- He petition. alls in his first federal habeas alleges Petitioner his constitutional Deputy Eckley’s aware of role was rights prosecution were violated when the coveralls, and his testi- destruction of evidence, exculpatory withheld material mony regarding at Petitioner’s trial his knowingly testimony, failed to correct false regarding and actions the cover- decision testimony, proffered perjured and know- I, 92-CV-427, Cooper alls. Amend. Pet. at ingly argued jury. false theories to the 310-13. (Pet. 43-47.) below, at As detailed Peti- investigator Petitioner’s defense re- tioner fails his burden and the DE- Court viewed microfiche files in December of these NIES claims under 28 U.S.C. ini- bearing and located a card 2244(b) § and on the merits. approved of the individual who tials destruction of the coveralls. With due dili- A. Petitioner’s Claims are Denied on gence, the card could have been located the Merits then, and the instant claim well before 1. Criminalist Baird William presented in could have been alleges prosecution Petitioner failed petition, first federal habeas liti- was provide exculpatory material evidence and 1997. gated between 1992 misconduct concerning criminalist Baird’s Beyond diligence showing, the due Peti- (Pet. concerning heroin. If required tioner would be demonstrate adjudicated a claim relating Petitioner has claim, underlying prov- that the facts if withholding of evidence and false light en and of the evidence as a viewed claim testimony previously, then his latest whole, would be sufficient to establish be alleging transgression the same must that, convincing clear and evidence but for 2244(b). gra- § dismissed. 28 U.S.C. error, ju- no the constitutional reasonable claim evidence withholding vamen of the guilty ror would have found him same, testimony regardless is the and false Ryen/Hughes murders. See 28 U.S.C. presents new and of whether 2244(b). § Petitioner does not meet this legal arguments or different fac- different guilt dem- requirement. Petitioner’s Babbitt, allegations. tual See 177 F.3d by overwhelming at tri- onstrated evidence already adjudicated a 746. Petitioner al, through post- and has been reaffirmed relating to Mr. Baird’s connection claim testing. This al- conviction DNA I, determined, Pet. at ready Cooper as did the with heroin. Amend. California 990 that a at CIM 92-CV-427, by ed a former inmate I, Aug. 1997

387; Cooper A-Troop committed gang Hispanic called at 69-71. Order (Pet. 45.) at Ryen/Hughes murders. claim were not sub- if Even Petitioner’s allegation, the to address this In order on 28 mandatory dismissal based ject to Au- evidentiary hearing on held an Court 2244(b)(1), claim must still be § his U.S.C. Correc- where former CIM gust presented could have dismissed because he Eddings testified. Donnie tional Officer pending of his legal and factual basis 3.) (8/6/04 Eddings was a HRT Officer diligence. claim due previously with Reception counselor correctional 2244(b). could have § Petitioner U.S.C. to intake interviews Center who conducted discovered, the addi- diligence, with due custody ap- what determine level Baird’s al- about Mr. tional information for an She was unaware propriate inmate. heroin, Peti- since leged particularly use of outstanding warrant the CIM of the already on Mr. Baird’s had focused tioner rape, aggravated as- files for Petitioner’s alleged- employment from his dismissal sault, mayhem, making a kidnaping, ly stealing heroin. arising threat out of Petitioner’s terrorist claim, Moreover, Brady to support kill Lori S. in rape and threat to victim prosecution Petitioner must show (8/6/04 HRT The war- Pennsylvania. evi- exculpatory knowledge had of material charges was in the CIM rape rant for the to the defense. dence that was unknown name, David Trautman aka files with the at 96 S.Ct. 2392. Agurs, 427 See U.S. listed, clearly but CIM Cooper, Kevin already in ad- has determined This Court its own linking erred egregiously by first federal habeas judicating Petitioner’s the false rape records of Petitioner’s to not have prosecution did petition that (See NOL filed name of David Trautman. alleged dismissal knowledge of Mr. Baird’s Vault, Notebook 9 2385- CIM 4/15/05 in prog- trial was or misconduct while the that Officer The Court concludes 92-CV-A27, I, Aug. Cooper ress. to de- had a motive Eddings substantial not entitled to at 70. Petitioner is a Order guilt from Petitioner due CIM’s flect this litigate factual opportunity second a ra- placing error in known institutional U.S.C. in this Court. question security. 2244(b). in minimum pist § Eddings testified that claim also fails Officer Brady Doug Luparello he has not inmate her prima state a facie case because told drug alleged Baird’s office in Santa Ana Ryens’s chiropractic established that Mr. evi- exculpatory A- by gang constitutes material called burglarized abuse had been 8-9.) (8/6/04 the entire record. dence in the context of Ed- Troop. HRT Officer 2392. 96 S.Ct. Agurs, See U.S. inmate that he dings was told this habeas denies the Accordingly, Ryen pressed either thought that Mr. Baird. regarding claim Mr. the members charges against or testified (8/6/04 following burglary. gang Allegations A-Troop Eddings prepared Officer HRT her and submitted it to report written Officer i. CIM Correctional (8/6/04 supervisor. HRT Eddings Donnie trial provided defense prosecution with- alleges prosecution written with a memorandum provid- evidence counsel exculpatory held material Eddings detailing Krupp the information named Richard C. that he had over- Officer as well as hand- Luparello, from inmate heard conversation about the murders. (Pet. regarding Luparello. {See information received or information of an conversations regarding Krupp Officer counselors, the of the correctional any to have committed from claiming inmate and that he had or with Officer Ryen/Hughes including Krupp, murders Officer Ber- along to the San Ryen/Hughes information passed regarding Shepherd (8/26/04 29-30.) nardino Sheriffs Office: Offi- HRT murders. testified, Institution with Fahey at California consistent employed I was cer also at lieutenant testimony, for Men as a correctional that as Shepherd’s Officer I escape. Cooper’s of Kevin the time facility, in the east Offi- watch commander regarding trial his Cooper’s at testified job have had no relat- Shepherd cer would spoken I have never escape from CIM. correctional counselors ed interaction with informa- Krupp regarding Richard facility such as Officer in the central from an inmate about tion he obtained (8/26/04 HRT Fahey. Krupp and Officer provide I did not Ryen murders. 29-30.) that institutional He also verified to Bernardino any information San correctional procedure permit did not Department County Sheriffs Office. counselors to call Sheriffs Ryen mur- regarding inmate CIM 22-23.) (8/26/04 Fahey Mr. testified HRT ders. at CIM years that in the sixteen he was (04-CV-656, Request filed Resp’t Ex Parte Chino, did not once call the Sheriffs he Deck; 18, 2004, Shepherd see also Aug. 22-23.) (8/26/04 proce- HRT Office. 42.) HRT 8/24/04 dure would be to inform institutional that he Shepherd further testified

Mr. the information and then investigators of for the watch commander lieutenant Sheriffs, if neces- they contact the would facility at Chino from 1983-84 east CIM (8/26/04 22-24.) HRT sary. may spoken he have although and that Krupp’s that Mr. The Court concludes occasions, it was not within Krupp on Mr. by the recollection is contradicted credible of pris- duties to the substance discuss testimony Fahey Shepherd. and Officers with correctional counsel- oner interviews Fahey Shepherd and As Officer Officer (8/24/04 Krupp. HRT ors such as Mr. testified, receiving any they do not recall 44, 51-52, Shepherd then testi- Mr. Krupp regarding information from Mr. any meetings fied that he does not recall Shepherd, Ryen/Hughes murders. Officer Fahey Krupp regarding or Mr.

with Mr. separate in a facili- as a watch commander (8/24/04 He HRT the murders. professional in a ty would not have been unequivocally that he did not also stated passed to have such information position any phone calls to the San Bernardi- place Moreover, Krupp. on to him from Officer phone such a no Sheriffs Office because phone placed call the Sher- alleged (8/24/04 against procedure. be call would given not credible that both iffs office is would procedure HRT The normal be Fahey Shepherd testi- Officer and Officer investigators at the institutional to contact have phone call would never fied that Chino, would then contact CIM who against procedure occurred because it was (8/24/04 if Office warranted. Sheriffs place, to take phone for such a call HRT call. they phone not make the did Shepherd’s testi- with Officer Consistent Fahey Shepherd and Officer Officer Fahey, correctional counsel- mony, Officer Krupp did credibly testified that Officer CIM, credibly before also testified or hearsay regarding him any not speak that he does not recall this Court hearsay speculation, murders was Hispanics. Offi- of the three statements Fahey Krupp did not Shepherd, any in- cers he testified that he never received Of- to the San Bernardino Sheriffs speak anyone formation or had contact with hearsay statements. regarding those fice in the Bernardino Sheriffs Office.48 San investiga- any prominent murder As with 79.) (8/6/04 HRT tion, rumors and there were numerous only Ruiz conversations Mr. claimed made in connection with false claims regard- to have had with law enforcement murders, and a belated re- Ryen/Hughes ing Ryen/Hughes murders were hearsay by account an port multiple of a County Jim Parsons of the Riverside Sher- a Bra- inmate does not constitute unknown Department, go iffs whom Mr. Ruiz would violation. dy (8/6/04 “ride-a-longs.” with on HRT 103- 132) 04; As admitted Mr. Ruiz at the Anthony Ruiz evidentiary hearing, these conversations Brady claims that a vio- Petitioner also upon specu- with Mr. Parsons were based prosecution failed lation occurred when things lation and heard on the media and exculpatory evidence material disclose (8/6/04 115) on the street. HRT This is Anthony Ruiz that enforcement law Parsons, by Mr. a lieuten- confirmed now inculpating plant was ordered to evidence Depart- ant with the Riverside Sheriffs execution, of the an Petitioner. On the eve ment: appeared Mr. Ruiz at a acquaintance of information that Mr.

press conference with knowledge regarding Ryen/ I had no Ruiz Bernardino Coun- worked for San Hughes murders in the Chino Hills be- allegedly and ad- ty Department Sheriffs yond newspapers I read in the or what Bernardino’s Sheriffs mitted the San participation on I had no saw television. planted had evidence to frame Department murders, be- investigation Petitioner. crimes not occur in River- cause the did allegation supported This was not I County. specific side have no recollec- testimony evidentiary at the Mr. Ruiz’s speaking Ryen/ tion of to Ruiz about the Ruiz hearing August 2004. Mr. tes- Any conversation I Hughes murders. employed or asso- tified that he was never had with Ruiz would have would have County ciated with the San Bernardino on information available been based Department, he never Sheriffs time, media at that because I had no them, for that he worked as informant regarding information other source of scene, had access to the crime and never the crimes. knowledge had that he never first-hand (04-CV-656, 24, 2004, Par- Aug. NOL filed Ryen/Hughes anything regarding 205.) Deck, Doc. No. Mr. Ruiz’s sons (8/06/04 76.) HRT He never murders. hearsay do not constitute speculation any mem- received information from Brady. material information under De- of the San Bernardino Sheriffs ber tampering Petitioner’s claim of evidence Ryen/Hughes partment regarding 79.) withholding evidence was raised (8/6/04 in- HRT All of the murders. state habeas the Petitioner’s sixth seventh regarding formation Mr. Ruiz had activity. informant objections under Fed- dino’s Sheriff's office 48. The Court sustained Bernar- eral Rule of Evidence 403 to non-San 1983.(See (8/12/83) 75-75; III RT 14- by the I CT on the merits petitions and denied (Sixth 6.) (9/2/83) Supreme 15, 19; Court. State California RT Petitioner’s IV Answer, 37-54; Ex- Ex. Hab. Pet. that he represented counsel to the Court in sup- Ruiz were filed concerning hibits daily logs; the record con- received petition state port of Petitioner’s seventh (IV RT firms his statement. denied on corpus, of habeas writ at- January an amended49 On on the merits. grounds and procedural subpoena tachment to the duces tecum for (Answer, Accordingly, this Ex. “complete daily including materials the California Su- accords deference to records, tape recordings logs, dispatch denying decision preme Court dispatch or communications made from claims on the merits. See U.S.C. 2, 1983, 31, 1983, July by the June to 2254(d). denial of Pe- § The state court’s any deputy or of the SBSO con- Sheriffs con- claim on the merits is not titioner’s investigation and search for cerning the law, clearly federal trary to established suspects occurring in the deaths at 2943 and not rest on an unreasonable de- does 5,1983, Road, Chino, English on June or mean- termination of the facts within the 1211029-02, escape DR and the and at- 2254(d). § ing of 28 U.S.C. Trautman, aka: tempt apprehend to David The “Blue” 4. Shirt Cooper, Kevin from CIM on June 1983.” (I 75-76.) Negus’ CT Defense trial counsel Brady a violation oc alleges discovery regarding declaration items of to dis prosecution curred when the failed records, logs, dispatch stated: “The and Epler that Laurel close to the defense possibly shirt reported finding tape recordings a “blue” include actions of officers Peyton Drive on the with blood on it on reports. may which not be memorialized is afternoon of June 1983. Petitioner integrity to of The actions are relevant log referencing dispatch incorrect. The evidence, physical suspects other to the shirt” of a “blue was disclosed report (I 90.) crime, flight.” and the issue of CT (See 6.) RT to the before trial. IV defense 2, 1983, defense trial September On If counsel at trial was on no Negus counsel stated: possible tice existence of material as to court that I can indicate with trial, not raise that at evidence and did four in the amended respect to the items raising a diligence there is a lack of 7576], I that re- subpoena [see CT Williams, Brady violation. See 529 U.S. daily logs, to Item 1 spect [complete instance, 1479. In this 120 S.Ct. records, of dispatch tape recordings dis- possi defense was on notice of the counsel patch or communications made from of the “blue” shirt. The ble existence 2, 1983, 31, 1983], July all items June state court trial record documents requested except tapes that were daily defense trial counsel received the Kochis I have been received. Mr. logs from the Bernardino Sheriffs San agreed tapes that the will be held have the reference Department, which contains by the sheriffs office until such time as possible being blood to a “blue” shirt with part can on what of those Drive, agree we 6, 1983, Peyton reported on June August tapes will be needed to be recorded Epler p.m., Laurel at 2:41 8, 1983, support August Municipal Court a declaration in Petitioner's defense On (I 61-62.) County subpoena duces tecum. CT counsel filed with the San Bernardino daily logs referencing report then we will agree, If we cannot trial. the court at some that evi coming back to “blue” shirt and the collection of be time, mainly tapes will be future but dence was disclosed to the defense before that out. until we can work preserved trial.50

(IV RT presented a viable Petitioner has not the accu- prosecutor trial confirmed claim, Brady or other constitutional to the Negus’ representations racy of Mr. warranting habeas relief. The violation (IV Moreover, it is RT trial court. that trial coun- fact Petitioner claims appreciated trial counsel clear that defense sel has no recollection of a blue shirt twen- it the information as relat- the relevance of ty-two years surprising. later is not Lau- physical evidence integrity ed to the no recollection of a blue shirt Epler rel had time he the crime at the suspects other when she was interviewed about the shirt. informa- daily logs dispatch sought the (See 04-CV-656, Aug. NOL filed (See I tion. CT 5,12-13 Doc. No. 187 at Kochis, at prosecuting one of the John August Ms. was contacted on Epler trial, torneys in the Petitioner testified In 2004 about the shirt. the recorded discovery that and evidentiary hearing statement, Epler that she does Ms. stated records dispatch related to the documents calling law enforcement re- not remember to Petitioner’s defense provided shirt, does not recall the garding the she subpoena duces tecum. by way trial shirt, remem- color of the and she does not 183-84.) (8/13/04 Mr. testi HRT Kochis (04-CV- the shirt was found. ber where Bernardino Sheriffs dai fied that the San 18, 2004, 656, Doc. No. August NOL filed 4-6, (Resp’t Evi- ly logs from June 1983 20.) 5, 12-13, Epler testi- 187 at and Ms. MMMM-PPPP), well dentiary Hr’g Ex. as fied this Court that her statements before burgla to the pertaining as the documents at that interview were true and correct ry Ryen chiropractic of the business of her best recollec- and were to the best Ex. Evidentiary Hr’g (Resp’t (8/26/04 124.) HRT tion. UUUU), to Petitioner’s were turned over evidentiary hearing, Epler At the Ms. (8/13/04 HRT 182- defense team at trial. vaguely that remembers find- testified she 84.) to the trial represented Petitioner driving was ing the “blue shirt” when she daily log copy that he had a of the court 133-34.) (8/26/04 HRT She testi- home. (See 75-75; III to trial. I CT prior exactly where fied that she could not recall (9/2/83) (8/12/83) 14-15, 19; RT RT IV found and that she could the shirt was trial represented to the Because Petitioner driving seeing and the shirt on the recall daily logs, the Court judge that he had road, that although she believes side representation made on the relies on his Peyton and it must have been close to the court at that time. As record to regu- Glenridge because that is where she professional trial has a attorney, counsel (8/26/04 HRT her car. 133— larly drove obligation to be truthful Court. memory that her She also testified of the State Rule of Professional Conduct very vague only and it was Petitioner had the shirt was Bar of California 5-200. bag carrying when he left the strategically may want- in a he was 50. Petitioner not have (99 night of the murders. since Petitioner hideout house ed to focus on a blue shirt prison had a blue shirt RT testified at trial that he only Deputy shirt Fields turned over to log that mentioned referencing after to Petition in this speaking the crime lab was the T-shirt case the “blue shirt” 169). (8/13/04 199-200.) (Trial that she recalled investigators defense RT er’s Ex. (8/26/04 the shirt. HRT anything about The existence of the tan shirt is not 123-24, 149.) fact, T- dispute. photographs In of the tan picked it was shirt were taken the time had

Finally, Epler Ms. testified she Peyton near the side of the road on Drive. by by shown to her letters been influenced Evidentiary Ex. (Resp’t Hr’g, CCCCC-1 attorneys regarding alleged CCCCC-5.) through enforce- evidence law suppression of (8/26/04 case. HRT cover-ups in this ment argues the “tan shirt” 179-80.) not think stated that she did She by picked up was Detective Fields June the murders after Petitioner committed day shirt” was after the “blue materials to her Peti- reading the sent daily has picked. log of June (8/26/04 attorneys. HRT tioner’s (See entry regarding no “tan shirt.” Epler’s previous Due to Ms. statements 5,May Daily Log of NOL filed 2005 of T-shirt, not recall the its where she did Review.) for In Al- June Camera color, or time it was found or the location though report, Detective Fields’ dated many years given passage picked up June states he the “tan recollection, questions the Court failure 7, 1983, may meant shirt” on June he have actually recalls a Epler whether Ms. blue event, the “tan shirt” June Notwithstanding, daily logs ref- shirt. picked up that was Detective Fields and erencing placed the call the Sheriffs photographed tagged collected and regarding the shirt were turned Office Property Tag No. A-58046 and stored counsel at trial and over to the defense (Tra- in locker. the Sheriffs evidence proper are not a basis for therefore 160.) verse, trial, Ex. At Detective Fields habeas claim. (Trial “tan identified the shirt” Exhibit report contends that the Respondent 169) on the as the T-shirt he recovered Peyton Drive a “blue shirt” found on listed (101 6511.) side of the road. RT There- 6,1983, daily log of June is on the Sheriffs fore, reported “blue shirt” June in actually the tan T-shirt at issue this case (Tr. likely 1983 is most the tan T-shirt (Trial 169). Koehis, According Ex. to Mr. 169) in Exhibit at issue this case as testi- logging none of the documents the evi- (8/13/04 by HRT 198- fied Mr. Koehis. dence at the San Bernardino Crime Lab 198-201.) (8/13/04 RT show “blue shirt.” shirt, Even if there were a blue there is Rather, only those documents reflect showing Brady no of a material violation. by at trial receipt of the T-shirt introduced Petitioner’s and the victims’ blood blood (Trial 169). (8/13/04 RT the defense Ex. Fields, were on the tan shirt. Detective 198-201.) Fields, Moreover, Deputy now dispatched pick up the officer who was deceased, daily is the officer listed on the deceased, (04CV-656, shirt, is now blue logs picking up as the “blue shirt” on 143), Arthur, Sergeant Billy Doc. No. Peyton Epler reported Drive after Laurel supervisor in homicide is also deceased. his the shirt to the San Bernardino Sheriffs (4/22/05 22.) Any investiga- HRT further Evidentiary 1983.(Resp’t Office on June value the two OOOO, 9; 04-CV-656, tion would be of limited as at Doc. Hr’g, Ex. any sig- main have Koehis testified that individuals would No. Mr. A. The Court Denies the Claims of knowledge regarding nificant blue Tampering Evidence deceased, With- no and there has been shirt are holding Evidence light faith in of the fact showing of bad to the represented that defense counsel alleges planting tamper- of or daily logs. that he had received the Court ing with items of evidence. Petitioner’s tampering reject- claims of evidence were evaluating the merits of Petitioner’s evidentiary a post-conviction ed after claim, accords deference to the this Court in In a evi- hearing post-conviction deny- Supreme Court decision California dentiary hearing, the Honorable William Petitioner’s claim on the merits. See ing Kennedy Diego Superior of the San 2254(d). § The state court’s 28 U.S.C. concluded that there was no merit to Peti- claim on the merits is denial of Petitioner’s (92- tampering. claim of tioner’s evidence federal contrary clearly established Ex. CV-427 NOL filed Jan. law, and does not rest on an unreasonable Kennedy Judge July Order dated of the facts within the determination 2254(d). § This meaning of 28 U.S.C. complaints Petitioner’s the han- about pursuant this claim to 28 Court also denies dling repetitive complaints of A-41 is of his 2244(b) § because Petitioner has U.S.C. trial, during on direct litigated under- failed to demonstrate that the facts and in appeal, post-conviction motions claim, if lying proven and viewed 33-34.) (Pet. at previous petitions. habeas whole, light of the evidence as a would be trial, T. expert Dr. Edward by to establish clear and con- sufficient Blake, complaint had no about the results that, for the constitu- vincing evidence but presented prosecution at trial re- error, juror no would tional reasonable (105 RT garding A-41. Defense Ryen/Hughes him guilty have found trial counsel stated in a declaration that 2244(b). § Peti- murders. See U.S.C. presented he have another hindsight would guilt demonstrated over- tioner’s trial because Dr. Blake con- expert at' trial, whelming evidence at and has been validity prosecution’s evi- firmed through post-conviction reaffirmed DNA I, A-41. regarding Cooper dence 92-CV- testing. 560(“The 427, Pet., Ex. T at Amended attorney bring able to out the district was that A-41 fact that [Dr. Blake] believed Tampering and Evidence With- VII. proper in a manner and had been tested holding of Evidence accurate.”) Moreover, the results were constitutional Petitioner contends his post- the fact that the ignores Petitioner rights were violated when law enforcement A-41 with testing conviction was done evidence, key pieces pre- with tampered national- the assistance of Petitioner’s own testimony, and misleading sented and false ly recognized experts, DNA Dr. Blake and exculpatory material evidence. withheld Plourd. Petitioner offers no Christopher (Pet. 29, at fails to to rebut the convincing clear and evidence meet his burden and the Court DENIES of correctness that attaches presumption pursuant claims on the merits and express findings these factual to the state court’s 2244(b). at tampering no with A-41 § that there was 28 U.S.C. 998 are also without merit. Petitioner evidentiary hearing. sheath post-conviction 2254(e). § represented by experienced and

See 28 U.S.C. was I, 92-CV-427, capable attorney. Cooper trial, Additionally, at the defense 25, Aug. cigarette 1997 Order at 8. The testing about the of the UU series. knew butts, rope, and the hatchet sheath that he reviewed Brian Wraxall testified against all used as evidence Petition- through the evidence series from UU-1 er, and defense counsel focused on (94 results. RT explained and UU-16 (See, 7788, e.g., 106 RT evidence. defense knew about Mr. The Wrax- (defense 7790, closing argument).) 7794 testing and results of the UU series all’s (94 rejected claims The state court Petitioner’s trial. RT since the trial and after evidentiary after an tampering Petitioner was on notice as to of evidence Since evidence, the existence of material there is hearing Finally, preserva- in 2003. EDTA raising Brady a viola diligence a lack of testing tive of the T-shirt has not under- Williams, 435-38, 529 at tion. See U.S. testing re- post-conviction mined the DNA 120 S.Ct. 1479. confirming guilt. Petitioner’s sults Road, T-shirt, Peyton As to the found on are un- addition Petitioner’s claims Peti- against it was never used as evidence very dermined because he had able and tioner and cannot be considered as affect- attorney him. representing skilled defense The T- ing the result in Petitioner’s trial. Indeed, this Court and the California Su- by shirt was introduced the defense preme express findings Court both made inculpate Petitioner. The never used “an extraordinari- Petitioner received Diego County Superior Court took San ly vigorous Cooper, defense.” able claim tampering evidence on Petitioner’s 90, 824, Cal.Rptr. 809 P.2d Cal.3d T-shirt, expressly respect 865; I, 92-CV-427, Aug. Cooper testimony proffered by found that the trial counsel David Order at 8. Defense tampering that no had oc- prosecution prior educational and liti- Negus’ extensive by curred was credible unrebutted developed at the gation experience were complete absence of evidence Petition- evidentiary hearing conducted this (92-CV-427 er. NOL filed Jan. regarding Petitioner’s first federal July Judge Kennedy Ex. Order dated I, 92-CV-427, petition, Cooper habeas findings are 2003 at The state court’s Aug. and he had the Order presumption entitled to a of correctness. post-conviction of able counsel. benefit 2254(e). § See 28 U.S.C. California weighs against vague This Supreme Court’s denial of Petitioner’s writ suggestions that the evidence introduced relating of mandate to the denial of his any defi- against him at trial suffered post-conviction DNA motion does not rest beyond thoroughly litigated those ciencies on an unreasonable determination of the facts, developed with federal law and in the trial court and is consistent 2254(d). § meaning evidentiary within the of 28 U.S.C. post-conviction proceedings. not petition, present- this Petitioner has there is Accordingly, the Court concludes any convincing ed clear and evidence tampering allega- no merit to Petitioner’s presumption would that at- overcome rejection of Peti- tion and the state court’s findings. factual tached to the state court’s accusa- vague tioner’s and unsubstantiated over two decades after the crimes tions ciga- allegations Petitioner’s about the contrary butts, planted is not and the hatchet that evidence was rope, rette law, an unreason- trial motion an effort to exclude evi- nor based on to federal allegations based on the crime scene the facts. See 28 dence of able determination 2254(d). properly managed, not and that had been § U.S.C. or evidence was collected mishandled. Satisfy the B. Petitioner Does Not represented by experi- Petitioner was Requirements of 28 U.S.C. attorney at trial. capable enced and Coo- 2244(b) § I, 92-CV-427, Aug. 1997 Order at per allegations already 8. Petitioner’s have adjudicated previously If Petitioner has trial, appeal, and in been addressed withholding of evi- relating a claim petition. his first federal habeas Petition- evidence, dence, failure to col- of planting alleged er of the could have discovered evidence, testimony, and false then his lect respect deficiencies with to the chain of be dismissed. 28 pending claims must evidence, custody mishandling of of evi- 2244(b). gravamen § of claims U.S.C. dence, tampering previ- or with evidence evidence, preserve failure to withholding ously diligence. with due The same is true evidence, same, testimony and false is the purported testimony as to the false presents regardless of whether withholding evidence. Petitioner had legal arguments and different or dif- new counsel, post-conviction excellent and Peti- Babbitt, 177 allegations. ferent factual See allega- have tioner could raised same at 746. F.3d present tions he chose to in the eleventh if Petitioner’s claim were not sub- Even dili- previously hour of this case with due upon ject mandatory dismissal based gence. 2244(b)(1), § his claim is still denied be- Peti- Beyond diligence showing, the due presented legal have cause he could required tioner would be to demonstrate pre- his claim pending and factual basis of claim, underlying prov- that the facts if viously diligence. with due 28 U.S.C. in light en and viewed of the evidence as a 2244(b). butts, cigarette § As to the whole, would be sufficient to establish testing ciga- of the defense knew about that, convincing clear and evidence but for to trial prior rette butts Mr. Wraxall error, ju- no reasonable the constitutional of trial. Mr. the time Wraxall him guilty ror have found would testing at trial of V-12 about his testified Ryen/Hughes murders. 28 U.S.C. (94 RT and V-17. He testified 2244(b). § not meet this Petitioner does Blake, expert, he and Dr. guilt was dem- requirement. Petitioner’s (94 facility. the same RT shared tri- by overwhelming evidence at onstrated testing he conducted Mr. Wraxall stated al, through post- and has reaffirmed been with Dr. cigarette butts consultation n Therefore, testing. DNA conviction Blake and Dr. Blake had full access to these claims. Court DENIES (94 RT notes and results. Wraxall’s result, satisfy Petitioner does not As Ryen’s Videotape/Audiotape VIII. Josh 2244(b). § requirements of 28 U.S.C. Testimony making simply Petitioner is unsubstanti- Ryen’s A. Re Josh Video- Claim to evi- allegations tampering ated as Testimony tape/Audiotape is DE- trial, him against that was at dence used NIED on the Merits guilt confirmed his subsequently or that federal consti- post-conviction testing. alleges DNA Petitioner his of rights were violated because presented comprehensive pre- defense a tutional testimony presented his was to the videotape audiotape of and which the admission 47-52.) (Pet. at The Court dis- jury evidence. have been matters record since jury taped 800-801, heard two state- agrees. The Cooper, trial. 53 Cal.3d at Ryen pursuant stipu- to a ments of Joshua Cal.Rptr. P.2d 865. videotape a of a lation. The first was Assuming arguendo that Petitioner Josh, 9, 1984 interview in which December could demonstrate that the factual and le- ten, under oath age questioned then was gal of his claim could not have been basis and counsel. by prosecutor defense previously diligence, due discovered with audiotape of a Decem- The second was still to demonstrate required he would be Dr. Lorna ber 1983 interview with claim, prov- his if underlying that the facts Forbes, treating psychiatrist his and a in of the evidence as a light en and viewed specialist treating children who survived whole, by to would be sufficient establish family a member. Josh did the murder of that, convincing evidence but for clear (95 identify anyone not as the assailant. error, ju- the constitutional no reasonable 4932-70; 4971-73; Trial RT Exs. him guilty ror would have found Ryen/Hughes murders. See 28 U.S.C. The defense received benefit from 2244(b). § Petitioner does not meet this Ryen identify stipulation, as Josh did not guilt standard. The was Petitioner jury and the heard of his assailant by overwhelming demonstrated evidence concerning Hispan- earlier three statement trial, through has been reaffirmed coming ic workers to the ranch. The de- testing. post-conviction DNA Petitioner sympa- the drama and fense also avoided by convincing not established clear and has

thy that would have undoubted occurred juror evidence that no would have convict- Ryen the defense called victim Josh to had Ryen subjected if ed Petitioner Josh the stand the trial and heard his first- testifying person jury. before bushy a man hand recollection about with Accordingly, this this Court DENIES (4/22/05 hair. HRT 2244(b). § claim pursuant 28 U.S.C. claim was also denied the state court on grounds. independent adequate state IX. Denial of Access to Judicial defers to the denial of This Court Petition- Process er’s claim on the merits the California rights Petitioner claims that his Supreme pursuant to 28 U.S.C. Fifth, Sixth, Eighth, under the and Four 2254(d). § Accordingly, Petitioner’s claim teenth Amendments were violated when DENIED is on merits. Diego County Superior the San Court di Satisfy B. Petitioner Does Not him petition rected to file his for writ of Requirements 28 U.S.C. corpus directly motions habeas related 2244(b) § (Pet. Supreme California Court. properly Petitioner’s claim is DE satisfy require- Petitioner does failing present cognizable NIED as 2244(b)(2). § ments of 28 Petition- U.S.C. question federal for this Court’s consider er must demonstrate that he could not if a cogniza ation. Even the claims were presented previously have his claim 2244(2)(b)(I). question, satisfy ble federal he does not § diligence. due U.S.C. 2244(b). § requirements 28 U.S.C. surrounding The facts and circumstances assuming arguendo and the manner in Even Joshua’s statements

1001 pursuant 28 U.S.C. this claim to 28 U.S.C. requirements of DENIES met 2244(b), 2254(d). § this DENIES Peti- § Court also on the with deference

tioner’s claim merits Satisfy C.Petitioner Does Not of Supreme to denial the California Court’s Requirements of 28 U.S.C. is claim because that decision Petitioner’s 2244(b) § clearly contrary not to established federal law nor based on unreasonable determi- In to be order heard in a successive meaning within of nation of the facts that petition, Petitioner must demonstrate 2254(d). § 28 U.S.C. previously the claim could not have been with the presented exercise of due dili- Cog- Petitioner Fails Present a A. to underlying gence, and facts his Question Federal nizable claim, if and proven light viewed complaint appli involves the whole, as a sufficient to evidence would be interpretation cation of and of state law by clear convincing establish evidence implicate does not the federal Consti that, error, no but for the constitutional McGuire, 62, In Estelle v. 502 U.S. tution. juror him reasonable would have found 475, 67-68, 112 S.Ct. 116 L.Ed.2d 385 guilty Ryen/ murders. See Hughes (1991), Supreme the United States Court 2244(b)(2). § Petitioner does 28 U.S.C. reiterated the well-established rule satisfy the prong not second 28 U.S.C. corpus does not lie federal habeas relief 2244(b)(2), § because complaint his about law, it for errors of state and that is to file being directed in the California Su- of the federal courts to re-exam policy juror’s preme import Court is no to ine court determinations of state law state guilt. of his determination questions. In conducting a federal habeas review, a federal court is limited to decid X. Petitioner’s Claims are Procedural- ing a conviction the Con whether violated ly Barred stitution, or laws treaties of the United satisfy if Even Petitioner were to (citations 112 475 States. Id. S.Ct. 2244(b), § requirements of 28 U.S.C. omitted). pres Petitioner’s claim fails to from this suc the Court denies claims question on feder cognizable ent a federal as barred. petition procedurally cessive al review and DE properly habeas is Supreme denied Peti The California 67-68, 112 NIED. See id. S.Ct. 5, 2004, as February tioner’s claims on

B. of Denial of Access to the Claim In re untimely citing successive DENIED on

Judicial Process is Clark, Cal.Rptr.2d 21 5 Cal.4th Merits (1993) Robbins, In re 855 P.2d 959 P.2d Cal.Rptr.2d Cal.4th also the state This Court defers to (1998). (Sixth merits, Pet. at State Habeas court’s denial the claim on the (claim IV); Answer, Ex. Re 37-54 (Sixth VII) (Claim Pet., State Habeas claims argues that Petitioner’s spondent Answer, 88-91; Ex. The California Pe procedurally response, are barred. Court’s denial of Petitioner’s Supreme to raise factual alle “specific titioner fails contrary clearly claim is not established inadequacy that demonstrate the law, gations nor does it an unrea- federal rest on procedure, including citation facts. 28 of the state sonable determination of the 2254(d). appli- § authority demonstrating therefore inconsistent U.S.C. This Court Bennett, alty-phase rule.” 322 F.3d at claim previously by cation of the decided Petitioner, against the court and affirmed Accordingly, this Court also DE- by the Ninth Circuit. See Greenawalt v. peti- NIES these claims the successive Stewart, 1268(9th Cir.1997) (inef- 105 F.3d procedurally tion as barred. fective sentencing). assistance counsel at believe, The Court continues to in light of Lingering XI. Doubt record, totality that Petitioner extraordinarily received an able defense recognizes The Court trial, claims of ineffective assis- involving penalty case the death is a seri Brady tance of counsel and violations are capital penalty ous matter. The for this addition, without merit. Petitioner has highly case will continue to be debated in any legal authority not shown to reduce his society. However, a trial court is bound penalty parole to life without in this suc- and cannot law be influenced time, petition. cessive habeas At this positions death-penal of either side of the appropriate Court concludes that it is not ty issue. As an alternative to the death for this judgment alter the valid penalty, argues Petitioner there is suffi of the state court that has determined on multiple occasions that Petitioner deserves cient evidence to reduce his sentence to penalty. the death an aggravating As fac- parole life without under the doctrine of tor, these brutal murders have forever ad- lingering Respondent argues doubt. versely impacted the lives of the victims. raising is foreclosed from (4/22/05 (Mr. (Mrs. HRT 124 Hughes), 125 relating penalty phase claim to the of his (Josh Hughes), Ryen).) Accordingly, trial, as successive petitions habeas are the Court DENIES claim issues, guilt phase limited to pen- lingering doubt. Court, he has state Supreme California CONCLUSION Court, for writ eight petitions petitions case, multiple has had In this Supreme in the States of certiorari United feder- petitions in state and corpus habeas Court, petitions in the United two habeas the direct review al court. In addition to Court, petitions two habeas District conviction the States affirming Petitioner’s Court, evidence, Supreme States including United the trial and evidentia- ry transcripts hearing par- and all of the petition Diego County habeas the San ties’ arguments. submissions and Based applications Superior Court and two review, on this careful agrees petition authorization to file a successive post-conviction with the DNA results and Appeal. the of Ninth Circuit Court Post- all of the courts came it in this before testing conviction confirms that DNA Peti- case: Petitioner is responsible the one for Ryen/ tioner committed the murders of the Accordingly, these brutal murders. the Hughes victims. This has conduct- Court the petition DENIES for successive testing ed mitochondrial DNA and EDTA corpus. writ of habeas testing, testimony forty- has heard witnesses, independently two reviewed the IT IS SO ORDERED.

McKEOWN, Judge, “[w]hen, concurring: example, Circuit probative the force depends of evidence on the circumstances

I. in which it was obtained and circum- those possibility fraud, stances raise a of indica- I opinion concur in the but am troubled tions of cannot, police conscientious work will words, that we in en- Cooper’s Kevin probative slovenly hance force and question resolve the work guilt “once and 419, will diminish it.” 514 for all.” I do not fault the U.S. 446 n. careful and (1995). 115 S.Ct. by extensive review the 131 L.Ed.2d 490 district court or multiple appeal the levels of carried out legitimacy justice The of our criminal statutory Supreme under and Court stan- system depends “special played on the role Rather, dards. the state bears considera- by prosecutor the American in the search responsibility in making ble such resolu- for truth in criminal trials.” Banks v. tion unavailable. I separately concur to Dretke, 668, 696, 540 124 U.S. S.Ct. underscore the critical link between confi- (2004) 157 L.Ed.2d (quoting 1166 Strickler justice dence in our system integrity and Greene, 263, 281, v. 527 U.S. 119 S.Ct. of the evidence. (1999)). 144 L.Ed.2d 286 The same Significant evidence bearing Cooper’s on principle extends to the police and their culpability lost, destroyed has been investigatory or left in supporting work the pros- unpursued, including, for example, blood- ecution. Of course we don’t demand or belonging covered coveralls a potential expect perfection. expect But we full dis- suspect murderer, closure, who awas convicted competency in investigation, t-shirt, a bloody alongside discovered in confidence the evidence. To be sure, the road near the crime scene. The man- sometimes the prosecution is ham- aging criminologist charge of pered by sloppy police the evi- work. And some- dence used to establish Cooper’s guilt inept at times investigation by and disclosure was, out, addict, trial as it turns police But, heroin prosecution. colors the and was for stealing drugs obligation fired seized prosecutor of the to disclose evi- police. alleged prob- Countless other dence favorable to the defense serves to handling lems with the “justify and disclosure of prosecutor trust as ‘the evidence and the integrity representative of the forensic sovereignty ... of a ... testing and investigation undermine confi- whose interest ... in a prosecu- criminal dence in case, the evidence. As the Supreme tion is not that it shall win a but that ” Kyles Court observed in Whitley, justice v. shall be Kyles, done.’ 514 U.S. bloody coveralls left report a pair v. Berger Unit 439, 115 1555(quoting S.Ct. then-boyfriend, Lee Fur- her States, her house S.Ct. 295 U.S. ed (1935)). may police that Furrow Roper row. told L.Ed. 1314 Ryen-Hughes have been involved ques- of serious presence Despite missing Furrow’s hatchet was murders. investi- integrity to the tions as murders, and belt after the from his tool supporting and evidence gation behavior and reported also erratic Roper by the conviction, are constrained we suspicion. that aroused her remarks the Antiterrorism requirements Penalty Act of Death Effective sister, her According Roper 2244(b)(2)(b). § (AEDPA), 28 U.S.C. murders, Furrow showed day after applica- exception potentially only description matched the in a car that up requires Cooper Cooper’s case ble Roper ex- Ryens’ wagon. also station have that “could not facts present to his bragged Furrow about that plained through the previously been discovered do a anytime you three rules “to follow that, if diligence,” and of due exercise your never wear own gloves, “wear crime:” the ev- light of and “viewed proven, a witness and leave alive.” shoes never whole, would be sufficient a idence as link potential In the face of this between convincing by clear and to establish murders, despite and be- the Furrow and that, er- but for constitutional evidence murderer, Furrow was ing a convicted would ror, reasonable no factfinder See, e.g., suspect. as a pursued never un- guilty of the [Cooper] have found (9th 395 F.3d Woodford, Allen v. U.S.C. offense.” derlying Cir.2005) (“When Furrow and Kitts were added). 2244(b)(2)(B)(emphases § alone, strangle began Furrow to finally left statutory bar- demanding light of this Kitts, interrupted by a only phone to be rier, has failed to Cooper I that agree strangled to then Kitts call.... Furrow Nonetheless, I write for relief. qualify wrapped- ... stones Kitt’s tie[d] death to the illustra- to draw attention separately canal.”). a ... it into up body [threw] and the involving troubling circumstances tive mishandling of evidence. to a alleged state turned over coveralls were The in this is critical evidence case The forensic detective, investigators not case did but facts These yet compromised.1 and was division did not The homicide up. follow Coo- troubling more because are all the Then, before com- calls. phone return life is at stake. per’s the hearing, preliminary pletion away in a coveralls the detective threw II. of Although the destruction dumpster. examples of are illustrative Following at trial was was known and the coveralls mishandling of evidence evidentiary gaps, ha- first Cooper’s federal during pursued circumstances. suspicious and the destruction of evidence petition, beas Bloody Coveralls Destruction misguided act to be was claimed later, long after Only single a officer. investigation, During pre-trial trial, previ- discover the defense police did Roper phoned named Diana woman Cooper was evidence, and said that eye on television as the witness such 1. Other Cooper, wide-ranging he had never seen testimony, and contradicto- attacker was murders, example, following grand- Josh ry. with his also shared For he observation later, at- initially signaled men his that three year a half Josh testified A mother. they were not signaled that He also tackers. killing. Cooper done the had Later, Cooper he or dark-skinned. saw black ously documentary bungled undisclosed evidence investigative work obscure the contrary police department to the truth. —a confirming memorandum destruction of Drop A-41 Blood coveralls, signed by higher ranking drop Blood A-41 is the most controver- supervisory officer. Destruction case, aspect sial and crucial of the state’s bloody potential suspect coveralls from a yet it carelessly was handled from the time inconsequential is not an gaffe. forensic it acquired. begin, was first To no one Missing The Shirt A-41; actually finding every- remembers

Although suspicious two and potentially one claims that pointed someone else it apparently bloodied t-shirts were turned out. over to the police logged as evi- tested, originally When Cooper’s blood during investigation, dence the murder B, type was Type identified as and subse only yellow one of these —a t-shirt —was quently A-41 was Type identified as B. However, disclosed the defense. after, light Soon it came to that Cooper’s second,

police logged possibly in a blood- RB, type actually blood and then A-41 covered shirt and recorded it aas blue was determined to be RB as well. One shirt. The blue shirt produced was not criminologist changed testimony re defense reference to the shirt was garding depletion sample. when, only post-conviction, found defense criminologist originally thought he ran low combing counsel was through later-discov- box, on the blood stored inside a pill small police logs. ered “appeared” but later more to him that he yet

In investigative another 1991, contra- claimed not to initially. have seen diction, the state now claims that the Supreme blue the Court of California deter t-shirt actually yellow was the t-shirt that pre-trial mined that after the final tests on However, A-41, was properly disclosed. the sample the was “completely con woman who found the shirt on the People 771, side of sumed.” v. Cooper, 53 Cal.3d (1991). the road not far from the crime scene and Cal.Rptr. 281 809 P.2d reported who the blue t-shirt it remembers Criminologist Gregonis, Daniel who test- log clearly as blue. The written reflects a blood, Cooper’s semen, ed saliva and is t-shirt, blue separately yellow and notes a alleged to have repeatedly the mishandled t-shirt. biological evidence both pre- post- The district court concluded that log points trial. Evidence to the fact that reflecting produced the blue t-shirt was Gregonis broke the A-41 in seal on earlier, it, defense and hence the blue t- potentially contaminating and conducted shirt did not constitute testing new evidence. of speci- unknown source evidence Cooper page claims the in question is not mens placing alongside them the sam- stamped the same format as the ples Cooper. court, other drawn from In state police log pages produced in pre-trial dis- Gregonis testified that he did not open the covery. explanation provided No glassine envelope is containing during A-41 discrepancy. page this Even had the unsupervised been the time it was in his custo- produced, undeniably dy. However, the t-shirt itself was photographic evidence re- produced. gone never Has the t-shirt opened veals that A-41 was and resealed (Daniel way destroyed coveralls? Is the Gregon- with the initials DJG John is) really yellow blue t-shirt “8/13/99,” t-shirt? How and the date which was dur- could a ing period shirt described as blue become sample yellow? trial, again, bungled Once records and out to Gregonis. checked After Gre- this evidence. failed to disclose prosecution mis- out and allegedly also checked gonis trial, reported to a lead sev- the warden saliva. On Before Cooper’s sample laid a occasions, altered that the shoes Gregonis that the notion investigator other eral testimo- changed his notes and laboratory only was inaccurate prison-issue The chain laboratory testing. ny about commercially available shoes were that the sample is also blood custody of the through Sears Roebuck public to the Gregonis. mishandling by question due Cooper’s trial attor- retail outlets. other time of trial he confirmed that at the worse, manager ney matters To make Dude tennis Labo- aware the Pro Keds Sheriffs Crime was “not Bernadino San the time during in a retail cata- a heroin addict for sale ratory was shoes were listed later dismissed and was question period this infor- logue” and that had he known stealing allegedly employment for from his have featured that fact he “would mation cache. As police evidence from the heroin at trial.” prominently defense Bell, evidentiary disar- “the in House v. not account for process habeas does of it in “limited rebuttal ray” and the that can- doubt or evidence lingering new record, prevent reasonable would present hurdle of convincing the clear and leap on reliance placing significant jurors Instead, we are left with situa- AEDPA. 518, 126 547 U.S. evidence.” the blood in the blood sam- in which confidence tion (2006). L.Ed.2d S.Ct. lost, best, destroyed or murky at ple is the DNA Resting Cooper’s conviction factored into cannot be tampered evidence jury, is evidence, which was not before The result is analysis the final doubt. the ex- because of problematic particularly one that the law wholly discomforting, but documenting the mishan- evidence tensive demands. of the evidence. dling Availability of Keds Shoes The Wide perhaps are

The Keds tennis shoes Cooper. against damning

most evidence opening in its prosecution stated

As the

statement, supplied strict- “were the shoes of Cali- the state

ly prison use within retail through and unavailable

fornia America, However, now we STATES stores California.” UNITED at trial Plaintiff-Appellee, believed that the Keds shoes know only inmates were prison to be issued v. government various actually provided HOLT, Defendant- Linden Bart Service, entities, Forest including the Appellant. and were avail- hospitals, state Navy, and catalogs. retail through able No. 06-30597. court, a ca- Cooper produced In district Appeals, United States Court jury

talog, not before Ninth Circuit. avail- shoes were demonstrated According Cooper, retail sale. able for Nov. Argued and Submitted availability of the shoes widespread 5, 2007. Filed Dec. the time prosecution at known to the trial, by the reported it had as been security prison of the minimum warden But escaped. Cooper which notes trial 9/19/83 availability Cooper necessarily would not files, Negus's David counsel its determination derogate Brady the state's affirmative obli- depend upon proof Negus does knew gation exculpatory to disclose material infor- investigation about Carroll’s of the tennis about, mation that it knew but her accessibili- was, therefore, shoes. There need no ty highlight any meaningful does the lack of Cooper expand to have been allowed to

Notes

notes finds it since Petitioner (citing Joiner, General Co. v. Elec. 522 has been identify any publication unable to U.S. 118 S.Ct. peer or testing, only L.Ed.2d review of EDTA (1997) proposition for the “that Dr. identifies Ballard’s own abstracts. ‘may some cases a trial court conclude that especially This void is conspicuous given simply great there is too an analytical gap notoriety extreme Simpson O.J. between the data and opinion prof- any case: if case catapult were to a new ”). fered’ technology to the forefront forensic sci- ence, it would have been one of national Application b. The Testing of EDTA to recognition Simpson like the O.J. trial. the Forensic Context is Not Scienti- Despite opportunities, numerous Peti- fically Accepted and Has Not Been tioner was unable to find qualified Subjected to Either Peer Review or expert or perform lab that would EDTA Publication testing other than Dr. Ballard. That no only Petitioner cites one article from lab in country and no scientist other 1997 that discusses EDTA measurement in than Dr. Ballard has ventured into this the tampering context. This article does allegedly “new” testing science EDTA “subject” not Dr. Ballard and his method- since that speaks time volumes about its ology meaningful “peer review.” Publi- reliability. previously As this Court ex- cation and peer are process review plained, “[hjaving Dr. Ballard only as the which new scientific methodology rigor- is willing scientist to perform proposed ously scrutinized By and verified. refer- EDTA testing that only indicates has encing peer as a factor to review be con- methodology his subject not been tested or Daubert, sidered under the Supreme review, peer it is an indication only indicated that methods tested methodology is not generally accepted and and subsequently accepted by the scientific not (04-CV-656, reliable under Daubert.” community are methods on which the Doc. No. Court Order filed June rely. Indeed, courts should it is illogical 2004 at that a court accept would a new scientific methodology it had been adequately before c. There are No EDTA Standard Levels reviewed accepted by Against the scientific Which Test Results Can Be community. Compared, Permitting Significant Manipulation of the Results attempts explain Preventing Definitive Conclusions publication dearth of peer review claiming “new,” this technology is if Even of EDTA amount in a foren- significant serves no commercial purpose, sample sic can properly measured,32 be case, It is unclear to the Court given inability whether this is even the of Dr. Suiz-

notes Following their investigation, Ms. Car- 81.) (Answer, in the defense file. Ex. reported roll’s staff to that her the tennis Moreover, in December of Ms. Car- shoes available at not prison- CIM were permitted roll Petitioner’s defense investi- or specially manufactured manufactured gator Ingels spend Paul a week with her commonly tennis but shoes were available going her through papers. This was two- at They retail stores such as alleg- Sears. years and-a-half before she submitted her edly bought told her CIM had at shoes eleventh-hour declaration to the Ninth Cir- Sears, (6/2/04 (6/02/04 (Carroll’s but this was incorrect. HRT cuit. HRT 125 testimo- 102-06.) ny); (Ingels’ testimony).) HRT contracts from Stride Rite 8/13/04 1,390 gave telephonic purchase Ms. Carroll even a for inter- the CIM Pro-Keds investigator Ingels view to defense back in Dude shoes admitted into evidence at (8/13/04 November of 2001. HRT (Ingels’ (Trial.Exs.84-88.) trial. the evidentiary At testimony).) hearing, Carroll Ms. testified she had no personal knowledge as to the availabili- evidentiary Ms. Carroll testified at the ty of Pro-Keds Dude shoes at tennis CIM: hearing reading newspaper that after you personal Ms. Wilkens: So have no stating article that shoe found at prints knowledge Ryen/Hughes murder were from whatsoever about the avail- scene prison shoe, ability made tennis commenced she tennis shoes CIM. murders, she contacted and the cape from you heard what only know You Department and Bernardino Sheriffs San your staff. in- to the given the shoes them that told correct. That is Ms. Carroll: or were not manufactured at CIM mates (6/2/04 HRT but prisons made for the specially rele request Carroll failed Ms. public to the commonly available they were readi which were records purchasing vant as Sears. major retailers such through investigators contact or ly available (6/2/04 her detailed Despite HRT She any assistance. assigned CIM Ms. period, from this time keeping record relat relevant contracts review the not did having a record of keep did Carroll only purchases shoes to the tennis ed (6/2/04 HRT office. the Sheriffs contacted going staff what informally asked her (6/2/04 HRT shoes. the tennis on with pe- that time records Ms. Carroll’s close staff worked investigative Her three-ring bind- currently eight assisting are riod the SBSD directly ly and (NOL 4/15/05, CIM filed notebooks. about Petitioner. er information provide

notes 41. but available specific to CIM back in November Carroll shoes contacted Ms. tor (8/13/04 copies documents It is HRT of 2001 received at other locations. of 2001. personal files December from her declaration that Carroll’s therefore curious 125(Carroll's testimony); (See HRT Janu- is dated 6/02/04 Ninth Circuit to the submitted (defense investigator HRT 132-33 8/13/04 aiy testimony).) Ms. Carroll Ingels’ In Paul significant enough was to conduct a per- sales showing records purchased CIM matter, inquiry sonal into the but no docu- 1,390 pairs of Pro-Keds Dude tennis shoes mentation is noted despite voluminous 1982.(86 2623; Answer, RT Ex. addition, notes related to Petitioner. To the Newberry’s best of knowledge, Detective Pacifico conducted a search of complete list of invoices of all other the file for concerning documents institutions in and outside of California to phone by call nothing Ms. Carroll but which Pro-Keds Dude shoes were shipped (See 46-M7.) found. RT 6/3/04 from 1982 to were introduced into multiple hearsay Carroll’s information (86 2623-24; evidence. RT Trial Exs. 84- contradicts the records maintained her 88.) Those invoices reflect sales to the institution, own and the information known Center, 71) Naval Training (Answer, Ex. persons purports with whom she to have juvenile and numerous and correctional fa- spoken. The evidence at trial that contra- cilities and hospitals. (Answer, state dicts multiple hearsay Carroll’s has been Exs.71-74.) Luck, confirmed an Don former execu- tive of Stride Rite Corporation forty- with The Court testimony heard of Don P. years two experience with the sale of Luck at the evidentiary hearing. Mr. the Pro-Keds shoe brand. Luck is a former executive with the Stride Corporation Rite forty-two years of Testimony b. employees of Stride Rite experience selling managing Pro-Keds Dewey Newberry and Don Luck and familiar with all sales of the Pro-Keds trial,

notes written In order to address this 7/27/04.) 04-CV-656, filed More- allegation, NOL the an evidentiary held over, Ana Department 26, 2004, the Santa Police hearing August 24 and regarding burglary the of the reports Krupp, where Officer correctional counsel- Ryen chiropractic office and other busi- Fahey, or Ted and Lieutenant Watch complex nesses the same commercial Commander Cornelius Shepherd testified. provided also to defense trial counsel were (8/6/04 51; 42-55; HRT HRT -8/24/04 04-CV-656, prosecution. the NOL {See 19-30.) hearing HRT After the 8/26/04 07/27/04.) Ryen burglary filed testimony of evaluating the witnesses and reported in chiropractic being office was credibility, their the Court concludes that discussing Ryen/ newspaper articles Brady there was no violation. copy Ange- murders. A of a Los Hughes Krupp Officer was a correctional article dated which les Times June c ounsel. He conducted intake inter burglary, includes information on the was (8/6/04 51-52.) HRT views CIM Chino. included in the defense trial file turned An relayed inmate to him that three Mexi discovery over on in 1997 in connection County jail cans in the San Bernardino peti- Petitioner’s first federal habeas with Ryen/ had claimed to have committed the Answer, (copy tion. Ex. 56 LA Times {See (8/6/04 Hughes murders. HRT burglary, article re from defense trial long Because the incident occurred ago, so file).) discovery provided by Given Krupp Officer could not remember Brady there no viola- prosecution, (8/6/04 HRT inmate’s name. Additionally, investigator tion.46 defense Krupp placed Officer testified that he Ingels testified that in 2002 he checked out this regarding Hispanic information regarding Eddings’ allega- the information males the inmate’s evaluation form and tion and found no merit claim. it passed supervisor, then on to his Officer (8/13/04 141-143.) Therefore, HRT Fahey, gang supervi- and the coordinator Brady Court concludes there was no viola- (8/6/04 sor, HRT Shepherd. Officer regarding Luparello A-Troop tion or Krupp Officer further testified that he dis- information. phone placed cussed a call that was to the San Bernardino Sheriffs Office either ii. CIM Correctional Officer Fahey Shepherd Officer or Officer Krupp Richard (8/6/04 54-57.)47 them. HRT alleges prose- Petitioner further that the Krupp’s In contrast to Officer recollec- exculpatory cution withheld material evi- tion, Shepherd credibly from an unidentified inmate at Officer testified dence CIM allegedly speak who told a correctional counsel before this Court that he did not attorneys 46. The Court also notes that Petitioner's attor- 47. The Court notes that Petitioner’s neys aware contained information were aware of information Officer Eddings Krupp August memo back in December of back in of 2001 when defense investigator Ingels investigator Ingels 2001 when defense inter- Paul interviewed Officer Eddings sign sign Krupp Officer and had her and had him a declaration. {See viewed (See 59-61; (Ingels' (Ingels' RT testimo- HRT HRT testi- declaration. 8/13/04 8/6/04 8/13/04 ny).) mony).)

Case Details

Case Name: Cooper v. Brown

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 4, 2007

Citation: 510 F.3d 870

Docket Number: 05-99004

Court Abbreviation: 9th Cir.