An Application to file a second or successive petition in which Ga argued that he should be allowed to raise two issues not raised in his first petition because of his actual innocence letting him fall within the miscarriage of justice exception in Schlup v. Delo and excusing him from the limitations in AEDPA. The court held that: 1) Gage’s second petition is barred by his failure to exercise due diligence (since his claim was known at the time of his initial habeas petition and he failed to raise it therein); and 2) The Schlup exception does not abrograte § 2244(b)(2)(B). Therefore, even assuming Gage has show his Brady claim combined with his assertion of actual innocence meet the Schlup standard, it does not provide a gateway past the procedural requirements for a second or successive petition.
The Court affirmed the district court’s granting the petition because a penalty-phase jury instruction, on depravity of the mind aggravator, was unconstitutionally vague under law clearly established by the U.S. Supreme Court at the time of trial, see Godfrey v. Georgia and under the Brecht standard the error “had a substantial and injurious effect or influence in determining the jury’s verdict” where the prosecution argument suggested that the crime committed did not meet the definitions of torture or mutilation. In light of rulings in Murray v. Schriro, Dickens v Ryan, and Martinez v Ryan the court remanded some of his uncertified guilt-phase claims back to the district court for a ruling in light of the new case law. Finally, the court remanded Rogers claim that he was entitled to equitable tolling back to the district court in light of Sossa v. Diaz.
The Court found that Supreme Court precedent did not require a live evidentiary hearing to assess the reliability of eyewitness testimony at a penalty phase. The Court further denied a claim of ineffective assistance of counsel for failure to investigate evidence of organic brain damage, after one expert retained by the defense suggested such testing, at the guilt and penalty phases, because of “the extensive investigation counsel performed into his mental state” and “counsel could justifiably have concluded that further investigation was unnecessary.” Finally, the court found that the California death penalty procedures do not violate the 5th, 9th or 14th Amendments to the United States Constitution.
Foley filed a Fed. R. Civ. P. 60(b) motion for relief from the 2004 denial of his habeas corpus petition. Foley’s attorney failed to notify him of the denial of his petition and he did not find out until 2010, after sending a letter to the Court. His attorney filed a declaration that he forgot about his case and failed to notify him of the denial. The Court held that this constituted abandonment of his client, which constitutied extraordinary circumstance to justify the correction of the judgment. The “failure to communicate, to preserve Foley’s ability to appeal, and to withdraw from the case clearly constituted abandonment.” The court also found that Foley’s motion for relief was timely because “he made reasonable efforts to determine whether relief was available and how to seek such relief.”
Maes filed his federal petition two days after the statue of limitations ran from the denial of his California Superior Court habeas petition. He argued that because California allowed him a reasonable time to file a further petition that, even though he had not actually filed such a petition, he should be allowed a reasonable time after denial of his state petition to file his federal petition. The Court, with some regret and a suggestion that California amend its habeas rules, held that because he did not, in fact, file a petition in state court there was no pending “properly filed application for State post-conviction or other collateral review” and, therefore, he was not entitled to statutory tolling. The Court left open the possibility that Maes could still file a petition in state appellate court, which if the court determined was filed in a “reasonable time” he might then have an argument for statutory tolling and then seeking a Rule 60(b) reconsideration of the denial of his federal petition.
In Mitchell v. Valenzuela the Ninth Circuit held that a motion to stay and abey a 28 U.S.C. § 2254 habeas corpus petition to exhaust claims in state court is generally (but not always) dispositive of the unexhausted claims, and that a magistrate judge therefore generally cannot hear and determine such a motion. In Mitchell, the petitioner sought a stay in order to exhaust claims that were already part of his petition. In Bastidas, the petitioner moved to stay and abey his petition while he exhausted a claim that was not yet part of his federal habeas petition. The Court held in Bastidas that his motion was likewise dispositive of that new unexhausted claim, such that the magistrate judge was without authority to ‘hear and determine’ it, but rather was required to submit a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(A)-(B). In Bastidas the Court found that his failure to object to the magistrate judge’s actions on the ground of lack of authority to hear and decided dispositive matters did not forfeit his right to appellate review of the magistrate’s actions purportedly in excess of her authority because it implicated the structural principles of Article III, which given the importance of policing of the proper designation of judicial officers convinces the Court that review is warranted despite the failure to object.