Mаnuel Pina Babbitt, a California state prisoner sentenced to die tomorrow morning at 12:01 a.m., has filed a motion for a stay of execution and an application for leave to file a successivе petition for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(b)(3) (1998). The Supreme Court of California this afternoon denied Babbitt’s latest habeas petition and request for a stay of execution. We have jurisdiction under 28 U.S.C. § 2244, and we deny the motions Babbitt now presents to this court.
I
Manuel Pina Babbitt was found guilty of the first-degree murder of Leah Schendel after she died of heart failure during Babbitt’s commission оf a burglary, robbery, and attempted rape. During his trial, Babbitt relied on a mental-state defense, which included both expert testimony of Post Traumatic Stress Disorder (“PTSD”) stemming from Babbitt’s Vietnam experiences and testimony of family members about his deteriorating mental condition and often strange behavior. On April 20, 1982, a California jury convicted Babbitt of all charges. On May 8, 1982, Babbitt was found sane. On July 6, 1982, Babbitt was sentenced to death.
In 1988, the Califоrnia Supreme Court rejected Babbitt’s consolidated appeal and habeas corpus petition and unanimously affirmed Babbitt’s conviction and death penalty judgment.
See People v. Babbitt,
Babbitt then filed a fourth habeas petition in the California Supreme Court. That court denied the petition, and Babbitt has now filed in this court an “Emergency Motion for Leave to File a Second Petition for Writ of Habeas Corpus” in the district court. In that motion, he requests a stay of execution for thirty days so that he may brief the issues he presents and, “if necessary, seek further review from the United States Supreme Court.”
II
The petition which Babbitt asks this court to permit him to file is a successive petition, subject to the “еxtremely stringent” requirements of the AEDPA.
Greenawalt v. Stewart,
Except under extremely narrow circumstances, not present here, section 2244(b)(1) of the AEDPA requires the dismissal of claims that were previously presented in a federal habeas petition.
See Martinez-Villareal v. Stewart,
We address each of the claims Babbitt proposes to raise in the district court, if he were authorized to do so.
A. Trial Counsel’s Alleged Alcohol Abuse
Babbitt argues that, becаuse of his trial counsel’s alcohol abuse, his counsel was ineffective during the guilt, sanity, and penalty phases of Babbitt’s trial. Babbitt contends he was unable to raise this argument in the amended petition he previously filed in the district court because he only recently discovered the evidence while preparing for his clemency hearing. The recent discoveries include his trial counsel’s recent resignation from the State Bar as a result of a legal malpractice action alleging that he had been drinking during the trial. This information caused Babbitt’s habeas counsel to re-interview the trial counsel’s legal staff, who revealed that trial counsel had drunk “three or four drinks” on a “number of occasions” during the lunch recesses of Babbitt’s trial.
Babbitt raised an ineffective assistance of trial counsel claim in his amended habeаs petition he previously filed in the district court. A “ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.... Identical grounds may often be proved by different factual allegations.... ” United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998) (internal quotations and citations omitted).
In his previously filed federal habeas petition, Babbitt argued that his counsel failed to sufficiеntly present a PTSD defense at the guilt phase or as mitigating evidence at the penalty phase. We rejected both of his arguments under the test in
Strickland v. Washington,
Even if we were to conclude that Babbitt’s ineffective assistance of counsel claim (now grounded on allegations of his counsel’s alcohol abuse during trial) was not previously presented, we would nonethеless deny Babbitt’s application to file a successive petition on this ground because Babbitt fails to make a prima facie showing that he could not have previously discovered the facts underlying his claim through the exercise of due diligence.
See
28 U.S.C. § 2244(b)(2);
Siripongs v. Calderon,
The recent allegations of alcohol abuse during Babbitt’s trial stem from two of Babbitt’s trial counsel’s staff members. These persons were known to Babbitt as early as 1991. Given Babbitt’s focus on his trial counsel’s ineffectiveness, a claim he has asserted from the beginning of his
*747
state habeas applications and in his amended habeas petition previously filed in the district court, therе is no reason, other than lack of due diligence, to explain Babbitt’s failure to include in his previous federal habeas petition the allegations he now makes concerning his trial counsel’s alcоhol abuse.
Cf. McCleskey v. Zant,
B. Trial Counsel’s Alleged Racial Bias
Bаbbitt, an African-American, also contends his trial counsel was racially biased and that this bias created a structural error that impeded his opportunity for a fair trial and sentence. Specifically, Babbitt argues that his counsel failed to interview African-American witnesses, failed to protest when the prosecutor dismissed African-American venire persons via peremptory challenges, and failed to communicate adequately with Babbitt.
Because Babbitt did not raise this argument in his previously filed federal habeas petition, and the claim does not rely on a new rule of constitutional law, we must determine whеther Babbitt makes a prima facie showing of due diligence under 28 U.S.C. § 2244(b)(2)(B).
See Martinez-Villareal,
Most of the facts Babbitt alleges about his counsel’s alleged race bias have been known to him since the conclusion of his trial. He knew, for example, that he was an African-American defendant charged with an interracial crime against a white wоman and tried with an all-white jury, a white judge, and a white defense attorney. His counsel’s failure to question the members of the jury about their potential race bias and to protest the peremptory challеnge of African-American jurors was also plainly ascertainable by reviewing the record. These facts, in themselves, provided sufficient factual predicates to trigger Babbitt’s obligation to raise a rаcially biased counsel claim in his previously filed federal habeas petition. Due diligence by Babbitt’s habeas counsel would also have uncovered trial counsel’s alleged racially de-rogativе remarks to Babbitt’s brother, who was called as a witness during the trial.
We conclude that the factual predicates underlying Babbitt’s racial animus claim could have been discovered through the exercise оf due diligence.
See
28 U.S.C. § 2244(b)(2)(B);
cf. McCleskey,
Ill
Although we need not address the second prong of 28 U.S.C. § 2244(b)(2), given our determination that Babbitt failed to exercise due diligence in both of his first two claims, we also note that Babbitt’s ineffective assistance claim stemming from his counsel’s alleged alcohol abuse and his racial animus claim would also fail under the AEDPA because the facts underlying these claims, if proven, would be insufficient to establish by clear аnd convincing evidence that, but for the constitutional error, no reasonable factfinder would have found Babbitt guilty of the underlying offense or eligible for the death penalty un
*748
der California law. See
Thompson,
IV
For the reasons set forth above, Babbitt’s “Emergency Motion for Leave to File a Second Petition for Writ of Habeas Corpus” and his motion for a stay of his execution are DENIED.