BEVERLY REID O'CONNELL, District Judge.
"This case may be the final chapter in an American tragedy." (Dkt. No. 215 at 1.) Petitioner Sirhan B. Sirhan asks this Court to sustain his objections to the Magistrate Judge's Report and Recommendations filed in his case and hold an evidentiary hearing based upon his claim of actual innocence. This Court conducted a de novo review of Petitioner's objections. As explained below, Petitioner has failed to meet his burden of establishing actual innocence. Likewise, Petitioner has failed to demonstrate that he falls within the narrow exception warranting an evidentiary hearing at this stage. Accordingly, Petitioner's objections are hereby OVERRULED.
On May 25, 2000, Sirhan B. Sirhan ("Petitioner") filed a habeas corpus petition in the United States District Court for the Central District of California, Western Division. (Dkt. No. 1.) The matter was assigned to Magistrate Judge Andrew J. Wistrich. (Dkt. No. 2.) On August 18, 2000, District Judge Consuelo B. Marshall
On December 6, 2001, in accordance with extended time granted during the course of Petitioner's recusal action, Respondents supplemented their answer to Petitioner's habeas petition, arguing that the petition was barred as untimely based upon Petitioner's habeas petition denied by the California Supreme Court in 1997. (Dkt. No. 38.) Judge Wistrich granted Petitioner extensions of time to respond until July 14, 2003. (Dkt. No. 55.)
On June 18, 2003, Petitioner moved to recuse Judge Wistrich or to transfer the case to the Eastern District of California. (Dkt. No. 56.) District Judge Christina A. Snyder granted Petitioner extensions of time and denied Petitioner's motion for recusal or transfer on July 7, 2004. (Dkt. No. 81.) On February 16, 2005, Judge Snyder denied Petitioner's motion for reconsideration. (Dkt. No. 91.)
On August 4, 2005, the Court received notice that Petitioner's counsel was deceased. (Dkt. No. 96.) Judge Wistrich granted extensions of time until 2007, in consideration of Petitioner's new counsel. (Dkt. No. 102.)
On March 13, 2007, Respondents filed a motion to dismiss Petitioner's federal habeas petition based on the timeliness argument advanced in Respondents' 2001 supplemental answer. (Dkt. No. 106.) On June 21, 2007, Petitioner's counsel withdrew from the case, and counsel appearing for Petitioner pro hac vice filed six motions seeking an extension of time for Petitioner to respond. (Dkt. Nos. 111, 133.) Petitioner timely filed his opposition on October 28, 2010, asserting that Petitioner's actual innocence excepts him from the statutory limitation that otherwise would have begun to run upon denial of Petitioner's state habeas petition. (Dkt. No. 135.)
Judge Wistrich granted Petitioner multiple extensions of time and, having reviewed Petitioner and Respondents' filings,
As is discussed below and in the Report and Recommendation, Petitioner's habeas petition is untimely and fails to present evidence falling within the exception for actual innocence. The limitation period was not statutorily tolled during the pendency of the petitions filed in the California Court of Appeal or California Supreme Court. See Allen v. Siebert, 552 U.S. 3, 6-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (holding that a petition is not properly filed for purposes of statutory tolling if it is denied as untimely by state courts). Petitioner argues that he is entitled to equitable tolling because he has submitted evidence of actual innocence that was not presented at trial. (Dkt. No. 218 at 4.) Accordingly, Petitioner argues that the limitation period did not begin until the date on which he knew or should have known the factual basis for his claims. See 28 U.S.C. § 2244(d)(1)(D).
On August 26, 2013, Judge Wistrich filed a sixty-seven-page Report and Recommendation. (Dkt. No. 216.) On September 28, 2013, Petitioner filed a revised sixty-page brief detailing his objections. (Dkt. No. 218.) Having reviewed the evidence and filings in this case, the Court agrees with Judge Wistrich that Petitioner failed to meet the showing required for actual innocence. Accordingly, the Court adopts the Report and Recommendation from below and OVERRULES Petitioner's objections. The Court will separately address Petitioner's objections below. In addition, the Court DENIES Petitioner's request for an evidentiary hearing.
"The United States District Court for the Central District of California issued General Order 01-13, which fills in specific additional duties assigned to magistrate judges. Federal habeas corpus petitions and extradition proceedings are among the types of cases assigned to magistrates." Wang v. Masaitis, 416 F.3d 992, 999 (9th Cir.2005). After being served a copy of the magistrate judge's Report and Recommendation, "any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court." 28 U.S.C. § 636(b)(1)(C). The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). The Court, after conducting its own de novo review, "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. The party making objections bears the burden of specifically identifying the portions of the report and recommendation to which it objects. See, e.g., United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989) ("[district court's] function is to correct those findings made by the magistrate when the litigant has identified a possible error"). Under Rule 72(b), a district court may accept the findings and recommendations of the magistrate judge which have drawn no objection, provided those findings are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
In McQuiggin v. Perkins, the Supreme Court held "that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural
"[W]here post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims." Lee, 653 F.3d at 938 (quoting Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.2002) (en banc)). Nonetheless, "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928; accord House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) ("[I]t bears repeating that the Schlup standard is demanding and permits review only in the extraordinary case." (internal quotation marks omitted)).
Petitioner fails to meet the exacting standard set forth in McQuiggin and Lee to pass through the Schlup actual-innocence gateway. Though Petitioner advances a number of theories regarding the events of June 5, 1968, Petitioner does not dispute that he fired eight rounds of gunfire in the kitchen pantry of the Ambassador Hotel. (Dkt. No. 218 at 34 ("That he fired his gun eight times is not to be denied ....").) After reviewing the evidence, the Court agrees with the findings of Magistrate Judge Wistrich. Petitioner does not show that it is more likely than not that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt. Thus, Petitioner does not fall within the "rare" category of petitioners who may pass through the Schlup actual-innocence gateway.
In objection to Judge Wistrich's Report and Recommendation, Petitioner identifies a number of portions of the Report that he believes reveal inconsistencies and deficiencies undermining the Report. For the following reasons, the Court finds Petitioner's objections to be without merit.
Petitioner disputes the Report's statement that "[i]nstead of shaking Senator Kennedy's hand, Petitioner shot him." (Dkt. No. 218 at 24; see Dkt. No. 216 at 1093.) According to Petitioner, if Petitioner had been facing the Senator so as to shake his hand, he could not have shot the fatal bullet. (Dkt. No. 218 at 24.) First, Petitioner cites the autopsy report, which concluded that the fatal bullet was fired in a "very slightly upward angle" from behind. (Dkt. No. 135 at 43; see Dkt. No. 134 at 105.) Petitioner then points to twelve eyewitness statements that "place[][P]etitioner in front of Senator Kennedy when the shooting occurred." (Dkt. No. 135 at 43.) Finally, Petitioner cites the absence of eyewitness testimony placing "[P]etitioner behind Senator Kennedy at the time of the shooting." (Dkt. No. 218 at 11-12.) Having established that he was initially in front of the Senator, Petitioner argues that it would have been impossible for him to
Establishing that Petitioner was initially in front of Senator Kennedy does not preclude him from firing the fatal shot. First, eyewitness testimony supports a finding that Senator Kennedy moved during or after the first shot.
Additionally, Petitioner takes issue with the Report's statement that "numerous witnesses [saw] petitioner shoot Senator Kennedy." (Dkt. No. 218 at 24; accord Dkt. No. 216 at 1094.) Petitioner argues that the Report contradicts itself because the Report later discloses that "eyewitnesses on whom petitioner relies did not actually see Senator Kennedy get shot." (Dkt. No. 218 at 24-25; accord Dkt. No. 216 at 1112.) As established above, an eyewitness did not testify that he or she saw the fatal shot; eyewitnesses did testify, however, that they were present and saw Petitioner fire his gun. (See Dkt. No. 180-1 at 5-36; see also Dkt. No. 153-2 at 29-41.) Further, Petitioner admits that he "has never, and does not now, deny [sic] that he fired his weapon at the Ambassador Hotel that evening." (Dkt. No. 135 at 22.) Due to the overwhelming testimony identifying Petitioner as a shooter, and Petitioner's own admission regarding the use of his gun, a reasonable jury could conclude that Petitioner fired the fatal shot.
As such, the Court finds these objections to the Report and Recommendation to be without merit.
Initially, Petitioner failed to submit a declaration from Ms. Nina Rhodes-Hughes. Now, attached to his objections, Petitioner provides a recent declaration.
Ms. Rhodes-Hughes disputes the location and number of gunfire shots; yet, importantly, she does not assert that Petitioner is innocent. First, Ms. Rhodes-Hughes's recollection was recorded decades after the events took place, which calls into question its reliability. (Dkt. No. 195 at 31.) Second, her declaration confirms that Petitioner was a shooter that evening. Ms. Rhodes-Hughes states that she was in the kitchen, she saw Petitioner fire his gun, and she witnessed men attempt to subdue him. (Dkt. No. 218-1 ¶¶ 8-9, 19.) Ms. Rhodes-Hughes does not state that she saw a second shooter. (Dkt. No. 218-1 ¶ 9.) She suggests that there was more than one shooter because she counted twelve to fourteen shots rather than eight, and she testifies that gunfire originated in both the left and right sides of the room. (Dkt. No. 218-1 ¶¶ 8-10.) Ms. Rhodes-Hughes avers that she heard only two or three shots coming from the vicinity of Petitioner, while several shots were fired in rapid succession from the opposite direction. (Dkt. No. 218-1 ¶¶ 8-11.) It is undisputed, however, that Petitioner fired all eight rounds of bullets from his gun. Ms. Rhodes-Hughes's statements are insufficient to meet the actual innocence showing because, although they are inconsistent with other undisputed evidence, they do not exonerate Petitioner. Even considering these statements, it cannot be said that it is more likely than not that no juror, acting reasonably, would find Petitioner guilty beyond of a reasonable doubt.
Petitioner objects to the Report's treatment of the Pruszynski tape recording, arguing that the Report fails to address the merits of Phillip Van Praag's recent analysis. (Dkt. No. 218 at 4-5.) During the shooting, a reporter named Stanislaw Pruszynski inadvertently left his tape recorder on and as a result captured the incident. Experts, such as Mr. Van Praag, have since analyzed the tape recording. Though the Report initially faults Petitioner for failing to exercise diligence in discovering the tape,
According to Petitioner, Mr. Van Praag's analysis proves that a second gunman was present. Mr. Van Praag opines
Another expert, Mr. Phillip Harrison, examined a dubbed copy of Mr. Pruszynski's tape recording and concluded that only eight shots were fired. (Dkt. No. 184 at 3.) According to Mr. Harrison, the other impulse sounds on the tape recording do not bear any resemblance to a .38 caliber shot, the type of gun carried by a security guard,
Mr. Van Praag's opinions do not disprove the conclusions of the 1975 Wenke commission regarding the ballistics evidence, (see infra Section II.E), the eyewitness testimony that Petitioner was the shooter, (Dkt. No. 180-1, Exs. A-B), the fact that Petitioner fired all eight bullets in his gun, (Dkt. No. 218 at 34), or Petitioner's pretrial and trial admissions and planning activities, see People v. Sirhan, 7 Cal.3d 710, 720, 732, 102 Cal.Rptr. 385, 497 P.2d 1121 (Cal.1972). At most, Petitioner creates a sense of doubt about the number of gunshots fired in the kitchen on June 5, 1968, but contemporaneous eyewitness statements do not support a second shooter theory.
Petitioner disputes several of the findings of fact in the Report, arguing that there is insufficient documentation. These facts, however, were adopted from the California Supreme Court's factual summary in Sirhan. (See Dkt. No. 216 at 1102 n. 11.) This factual summary is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1):
Here, Petitioner fails to meet his burden.
First, Petitioner objects to statements regarding his activity with the Rosicrucian
Petitioner does not agree with the California Supreme Court's characterization of evidence or its quality of documentation, but he fails to provide evidence, let alone clear and convincing evidence, to rebut the presumption of correctness. Therefore the Court OVERRULES these objections.
Petitioner objects to the Report's treatment of the ballistics evidence; yet Petitioner does not provide evidence to support his theory of bullet substitution. Petitioner theorizes that the bullets introduced at trial as the Kennedy neck bullet and the Goldstein bullet were substitutes for the actual bullets. (Dkt. No. 218 at 28.) Petitioner argues that Officer DeWayne Wolfer lied at trial and at subsequent hearings about matching the bullets to Petitioner's gun, speculating that a substitution of bullets must have taken place. (Dkt. No. 218 at 31-32.) But Petitioner does not point to any substantive evidence, new or old, to support these allegations. Rather, to support his assertions, Petitioner argues:
(Dkt. No. 218 at 30-31.)
The issues raised by Petitioner have been rejected previously. In 1975, a court-appointed panel of experts extensively reviewed the ballistics evidence and heard testimony from witnesses, such as Officer Wolfer.
Petitioner makes another objection to the ballistics evidence, but the relevant portion of the Report was amended. Therefore, it is unnecessary to examine this objection further.
According to Petitioner, the Report blatantly distorts and ignores the opinions of qualified professionals Dr. Daniel Brown and Professor Alan Scheflin. (Dkt. No. 218 at 35.) The Court finds that Petitioner misunderstands the actual innocence standard and fails to provide sufficient evidence to pass through the Schlup gateway.
Petitioner states the standard of review that must be applied to this evidence, that "[t]he standard is not to show who did the mind control; the standard is reasonable doubt." (Dkt. No. 218 at 38.) The Court does not agree. In Schlup, the Court discussed the incidence of reasonable doubt and determined that it was not sufficient on its own to show actual innocence.
Schlup, 513 U.S. at 329, 115 S.Ct. 851. Petitioner may be referring to Lee, in which the Court held that a petitioner need not affirmatively prove innocence where the "post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt." 653 F.3d at 938 (internal quotation marks omitted). In either case, Petitioner overstates the Report's assessment of the evidence. The Report only concludes that Petitioner's evidence "may be sufficient to suggest that [P]etitioner's mind-control theory is not impossible." This statement does not translate to a finding that it is more likely than not that no juror, acting reasonably, could find Petitioner guilty beyond a reasonable doubt. As such, Petitioner's objection to the applicable standard is without merit. The Report correctly cites and applies the actual innocence standard.
Having reviewed Petitioner's evidence of mind control and hypno-programming
Roughly forty years after the incident, Dr. Brown opines that a third party used a combination of drugs, hypnosis, sensory deprivation, and suggestive influence to exert coercive persuasion over Petitioner, causing him to commit the acts at issue here. (Dkt. No. 207 at 37.) Petitioner points to a two-week period when he disappeared after falling off of a horse as an opportunity for him to be programmed. (Dkt. No. 218 at 37.) Additionally, as an avid user of the short-wave radio, Petitioner theorizes that he could have received messages and continued programming once he returned home.
Dr. Brown concludes that Petitioner's susceptibility to hypnotism places him among the 4-5% of people who could be hypnotized to commit antisocial acts. (Dkt. No. 180-3 at 13.) According to Dr. Brown, Petitioner is also "highly socially compliant and has a high dissociative coping style. All three factors predict strong vulnerability to undue suggestive influence or coercive persuasion, hypnotic and non-hypnotic." (Dkt. No. 180-3 at 13.) Dr. Brown states in his opinion that he used the term coercive persuasion "because high hypnotizability, in [his] opinion, is only one of a number of factors contributing to the overall coercive persuasion in the Petitioner's case that led to his firing a weapon on the night of the assassination and subsequently led to his becoming amnesic for his actions." (Dkt. No. 180-3 at 10.) Dr. Brown does not provide further details or evidence regarding the type of drugs or sensory deprivation used to exert coercive persuasion over Petitioner; instead, he argues that his diagnosis coupled with Petitioner's recollections
Next, Petitioner points to the opinions of Professor Scheflin and Dr. Edward Simson-Kallas to sustain his burden of proving actual innocence. Professor Scheflin did not examine Petitioner. Instead, his opinion is offered to rebut Respondent's argument that hypno-programming is a "fantastic" theory. (Dkt. No. 180-2 at 7.) Professor Scheflin provides a background on hypnosis theories, concluding that research shows "it is possible, with a small select group of individuals, to influence the mind and behavior beyond legally and ethically permissible limits." (Dkt. No. 180-2 at 30.) Professor Scheflin "personally knew several of the leading researchers who participated in [hypnosis] programs" conducted by government agencies. (Dkt. No. 180-2 at 2.) Professor
Professor Scheflin reviews Dr. Simson-Kallas's 1975 statement to the San Francisco Examiner that Petitioner was "a perfect choice for being a programmed hypnotic patsy." (Dkt. No. 180-2 at 28.) Professor Scheflin also recounts Dr. Simson-Kallas's critique of the theories presented on behalf of Petitioner at trial by defense expert Dr. Bernard Diamond. (Dkt. No. 180-2 at 29.) Dr. Simson-Kallas dismissed Dr. Diamond's trial diagnosis that Petitioner was a paranoid schizophrenic who hypnotized himself into committing the acts. (Dkt. No. 180-2 at 29.) Rather, Dr. Simson-Kallas opined that Petitioner "was put up to draw attention while experts did the work. He would be easily blamed, being an Arab. He was programmed to be there." (Dkt. No. 180-2 at 29.) Dr. Simson-Kallas reasoned that Petitioner "liked Kennedy, [and] that he held no animosity towards him."
Finally, Petitioner offers evidence of "two more recent, sensational studies." (Dkt. No. 218 at 44.) The Court finds that Petitioner did not exercise due diligence in discovering and briefing these studies.
The Court is not persuaded by Petitioner's evidence. Petitioner focuses on invalidating Dr. Diamond's opinion, rather than confronting other contemporaneous opinions and statements that undermine Dr. Simson-Kallas and Dr. Brown's findings. For example, on cross-examination, Petitioner admitted to stating "I killed Robert Kennedy willfully, premeditatively, with twenty years of malice aforethought." Sirhan, 7 Cal.3d at 720, 102 Cal.Rptr. 385, 497 P.2d 1121. This admission flatly contradicts Dr. Simson-Kallas's finding that Petitioner liked Senator Kennedy. Further, Petitioner fails to contradict the trial testimony of Dr. Seymour Pollack, who testified on behalf of the prosecution. After spending roughly 200 hours on the case, Dr. Pollack agreed with Dr. Simson-Kallas
As discussed in Griffin v. Johnson, 350 F.3d 956, 965 (9th Cir.2003), psychiatrists and psychologists often disagree on patient assessments, particularly with diagnoses of mental illness. As a result, the court in Griffin concluded that evaluations from psychologists should be given little weight on habeas review because "`a defendant could ... always provide a showing of actual innocence by hiring psychiatric experts who would reach a favorable conclusion.'" Id. (alteration in original) (internal quotation marks and citation omitted) (quoting Harris v. Vasquez, 949 F.2d 1497, 1515 (9th Cir.1990)). Petitioner's "mere presentation of new psychological evaluations... does not constitute a colorable showing of actual innocence." Id. (alteration in original).
Petitioner attempts to distinguish Griffin from the facts of this case because "in Griffin, no psychological evidence was offered or relied upon by the defense team, whereas in the present case petitioner's defense team centered their whole case on petitioner's mental state and then at Trial, lead Counsel, Grant Cooper misrepresented, distorted, and omitted said evidence."
Under Schlup, the Court must "make its determination concerning the petitioner's innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial." Schlup, 513 U.S. at 328, 115 S.Ct. 851 (internal quotation marks omitted). As such, the Court has assessed Petitioner's claim of actual innocence in light of all of the evidence, as was done in Griffin. Viewed in a light most favorably to him, Petitioner shows that mind control may not be impossible, and that he possesses personality traits suggesting that he would be an able candidate for such mind control. This does not meet the showing required by Schlup to pass through the actual-innocence gateway.
In light of this and the other evidence, Petitioner does not establish "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327, 115 S.Ct. 851. As such, Petitioner is misled when he argues that he has met his evidentiary burden. His objections are without merit.
Petitioner requests an evidentiary hearing to assess the new eyewitness, acoustics, ballistics, and hypno-programming evidence. Pursuant to 28 U.S.C. § 2254(e)(2), federal courts may only hold evidentiary hearings on habeas claims under certain prescribed conditions:
Id. (emphasis added); accord Griffin, 350 F.3d at 965-66 (quoting 28 U.S.C. § 2254(e)(2)) (finding that the circumstances did not warrant an evidentiary hearing because Petitioner did not show that no reasonable factfinder would have found the applicant guilty of the underlying offense).
The acoustics evidence and new eyewitness statements do not meet the threshold for an evidentiary hearing. Even assuming that Petitioner exercised due diligence as discussed in Section II.C, Mr. Van Praag's expert opinion does not exonerate Petitioner. It raises doubts as to the number of bullets fired, but it does nothing to diminish the overwhelming evidence of guilt. Similarly, as discussed in Section II.B, while Ms. Rhodes-Hughes's recent declaration suggests the presence of a second shooter, it also unequivocally confirms Petitioner's role as a shooter in the kitchen pantry. It is contradicted by the other eyewitness testimony. Petitioner does not prove by clear and convincing evidence that, but for ineffective assistance of counsel, no reasonable factfinder would have found Petitioner guilty of the underlying offense.
Finally, the expert opinions of Dr. Brown and Professor Scheflin are insufficient to support Petitioner's request for an evidentiary hearing on the topic of hypnoprogramming. Though Petitioner raises doubts as to the assessment conducted by Dr. Diamond, there is a conflicting opinion from Dr. Pollack and inculpatory evidence from Mr. McCowan. Petitioner fails to provide clear and convincing evidence that, but for ineffective assistance of counsel, no reasonable factfinder would have found Petitioner guilty of the underlying offense.
Here, Petitioner "has failed to show what ... an evidentiary hearing might reveal of material import on his assertion of actual innocence." Id. (alteration in original) (internal quotation marks and citation omitted). Accordingly, the Court declines Petitioner's request for an evidentiary hearing.
IT IS ORDERED that: (1) the August 26, 2013 Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as to the findings of fact and conclusions of law herein; (3) Petitioner's request for an evidentiary hearing is DENIED; and (4) Judgment shall be entered DENYING the petition for writ of habeas corpus and DISMISSING the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.
SIRHAN BISHARA SIRHAN, Petitioner,
v.
P.D. BRAZELTON, Warden,
ANDREW J. WISTRICH, United States Magistrate Judge.
This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting. As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy's hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.
In this petition for a writ of habeas corpus, petitioner challenges his conviction for the assassination of Senator Kennedy. This petition was filed in 2000 — more than three decades after petitioner was convicted.
The California Supreme Court affirmed petitioner's conviction, but reduced his sentence to life imprisonment. People v. Sirhan, 7 Cal.3d 710, 717, 755, 102 Cal.Rptr. 385, 497 P.2d 1121 (1972). The United States Supreme Court denied petitioner's petition for a writ of certiorari on February 20, 1973. Sirhan v. California, 410 U.S. 947, 93 S.Ct. 1382, 35 L.Ed.2d 613 (1973).
Petitioner filed his first habeas petition in the California Supreme Court in 1975, claiming, among other things, that the prosecution had suppressed evidence suggesting that an unknown second gunman fired the bullet that killed Senator Kennedy. The petition was denied on February 13, 1975. [Lodged Documents ("LD") 13-15].
Later the same year, the Los Angeles Superior Court conducted "special proceedings," pursuant to which a panel of seven independent firearms experts re-examined the ballistics evidence presented at trial. [LD 6 (Exhibits to Petition in Case No. S062258), Exhibit ("Ex.") A (February 5, 1976 Minute Order) & Ex. G (Superior Court's Order for Resting of Exhibits); LD 27 (Partial Reporter's Transcript of Proceedings)]. The examiners reviewed the evidence, conducted tests, and unanimously concluded that there was no indication that the bullets were fired from different guns. The examiners, however, were unable to definitively confirm that the bullets (including the bullet removed from Senator Kennedy's neck) were fired from petitioner's gun. The inability to confirm that petitioner's gun fired the bullets was the result of the physical condition of the gun (which, in turn, was the partly the result of the passage of time), which prevented reproducibility. [LD 6, Ex. B (Comprehensive Joint Report of the Firearms Examiners)].
On April 21, 1997, petitioner filed a habeas petition in the Los Angeles County Superior Court.
On May 1, 1997, petitioner filed a habeas petition in the California Court of Appeal. [LD 2]. The petition was denied on June 17, 1997. The appellate court found that the petition was untimely, that petitioner was estopped from claiming that someone else killed Senator Kennedy after testifying at trial that he did, that there was no violation of petitioner's constitutional rights, and that there was no basis for doubting the correctness of the verdict. [LD 3].
Petitioner filed a habeas petition in the California Supreme Court on June 20, 1997. [LD 4]. Respondent was ordered to file an informal response to the petition, and was granted five extensions of time within which to do so. The petition was denied on May 24, 2000, both as untimely and on the merits. [LD 7].
This petition was filed the next day.
Section 2244(d) imposes a one-year deadline on the filing of a habeas corpus petition by a state prisoner. 28 U.S.C. § 2244(d).
This petition, however, was not filed until May 25, 2000, more than three years after the limitation period expired. Absent grounds for statutory or equitable tolling, delayed accrual, or some other exception to the statute of limitation, this petition is time-barred.
The limitation period does not run while a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2); see Carey v. Saffold, 536 U.S. 214, 218, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).
Petitioner filed a petition in the Los Angeles County Superior Court on April 21, 1997, with four days of the limitation period remaining. That petition was denied on April 30, 1997. Thus, petitioner had until May 5, 1997 to file his federal petition.
As set forth above, petitioner also filed habeas petitions in the California Court of Appeal and the California Supreme Court. Both of those petitions, however, were denied in part as untimely. [LD 3 at 2-5 & LD 7].
When the California courts deny a petition as untimely, the petition is not "properly filed" for purposes of statutory tolling. Allen v. Siebert, 552 U.S. 3, 6-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007); Carey, 536 U.S. at 236, 122 S.Ct. 2134; Lakey v. Hickman, 633 F.3d 782, 785-786 (9th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 3039, 180 L.Ed.2d 858 (2011). This is true even when the state court's denial is based both on the merits and on the ground of untimeliness. Bonner v. Carey, 425 F.3d 1145, 1148-1149 (9th Cir.2005), cert. denied, 549 U.S. 856, 127 S.Ct. 132, 166 L.Ed.2d 97 (2006). Accordingly, the limitation period was not statutorily tolled during the pendency of the petitions filed in the California Court of Appeal or California Supreme Court.
Petitioner argues that the timeliness requirements are not, or were not at the time the state court imposed them, adequate and independent state procedural rules, and as a result, they are insufficient to prevent statutory tolling. [DN 135 (Opposition to Motion to Dismiss) at 6-20]. The principles of procedural default upon which petitioner relies, however, do not apply to statutory tolling. See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir.2009) (rejecting the argument that statutory tolling is available where a state procedural rule is not firmly established and regularly followed); Ellis v. Harrison, 2010 WL 3385206, at *18 (C.D.Cal. July 12, 2010) (stating that the petitioner's argument that California's timeliness rule was not applied consistently "appears to confuse procedural default concepts with the analysis required for purposes of the statute of limitations defense"), report and recommendation adopted, 2010 WL 3385201 (C.D.Cal. Aug. 25, 2010); Barr v. Yates, 2009 WL 1468721, at *2 (N.D.Cal. May 26, 2009) (explaining that an argument that a state timeliness rule had been applied inconsistently is "irrelevant" to the statute of limitation issue).
The limitation period also can be equitably tolled. Petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). "In this circuit, equitable tolling of the filing deadline for a habeas petition is available `only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002) (quoting Miles, 187 F.3d at 1107). Equitable tolling may be appropriate when "external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Lott, 304 F.3d at 922 (quoting Miles, 187 F.3d at 1107).
Petitioner alleges that he is entitled to equitable tolling because he was diligently pursuing his claims through the state courts. [DN 153 (Petitioner's Supplemental Brief on Equitable Tolling) at 4]. Although petitioner may have been diligent, at least in filing and prosecuting his state habeas petitions, diligence alone is not enough to warrant equitable tolling. Petitioner also must show that an extraordinary circumstance prevented him from filing his federal petition within the statutory deadline.
While unfortunate, petitioner's predicament is not a result of circumstances beyond his control. No external force was the proximate cause of petitioner's untimely filing of this petition. Instead, petitioner's plight is a result of his (and his counsel's) choice to wait for the outcome of each of his three state habeas petitions before filing a petition in this Court, rather than to file a federal petition and seek a stay so that he could exhaust his state remedies as to any unexhausted claims. See Pace, 544 U.S. at 416, 125 S.Ct. 1807 (addressing the predicament of a petitioner who litigates in state court, only to discover that his state petition was not "properly filed" and thus that his federal petition is untimely, and explaining that a petitioner can avoid this predicament by filing a "protective" petition in federal court and asking that court to stay the proceedings until state remedies are exhausted); Rhines v. Weber, 544 U.S. 269, 273-275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (holding that federal courts may stay mixed petitions while a petitioner exhausts his state remedies). Petitioner took the risk that the statute would be interpreted (as it subsequently has been) as excluding statutory tolling for state petitions denied as untimely.
Although petitioner's counsel made an unsound tactical decision — namely, to pursue additional collateral proceedings in state court in 1997 before filing a federal petition — this simple tactical error did not amount to the type of egregious or extraordinary misconduct sufficient to warrant equitable tolling. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2564, 177 L.Ed.2d 130 (2010) (stating that "garden variety" claims of attorney negligence such as miscalculating the limitation period or being unaware that the period had expired do not warrant equitable tolling, but that extraordinary misconduct — such as ignoring the petitioner's repeated letters and failing to communicate for years despite pleas from the petitioner — might warrant equitable tolling); See Randle v. Crawford,
Petitioner's allegations regarding the belated discovery of exculpatory evidence raise the possibility that the limitation period did not begin to run until the date on which petitioner knew or should have known the factual basis for his claims. See 28 U.S.C. § 2244(d)(1)(D) (explaining that the limitation period does not begin until the "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence"). As the Ninth Circuit has explained, under section 2244(d)(1)(D), the limitation period does not begin until the petitioner knows, or through diligence could discover, the important facts underlying his claim, not when petitioner recognizes the legal significance of those facts. Hasan v. Galaza, 254 F.3d 1150, 1154 & n. 3 (9th Cir.2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.")); see generally Mardesich v. Cate, 668 F.3d 1164, 1170-1171 (9th Cir.2012) (stating that section 2244(d)(1) requires consideration of the appropriate triggering date for each claim). Furthermore, petitioner must demonstrate the he acted diligently in pursuing discovery of the relevant facts. See Johnson v. United States, 544 U.S. 295, 310, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) (holding that a petitioner challenging a federal sentence that was enhanced by a prior conviction that was subsequently vacated was not entitled to delayed accrual because he had failed to exercise due diligence in seeking to overturn the prior conviction).
A reporter named Stanislaw Pruszynski, who was at the Ambassador
Contrary to petitioner's contention, this audio recording was available and could have been discovered in 1988, when nearly all law enforcement records regarding Senator Kennedy's assassination were released to the public as part of the California State Archives. [See www.sos.ca.gov/archives (Appendix E, Index and Summary of Audio Tapes listing Pruszynski recording as CSA-K123); Petition at 200 (declaration of petitioner's investigator, Rose Lynn Mangan, stating that petitioner's counsel told her in 1993 that the police evidence in petitioner's case had been released to the public in 1988)].
Furthermore, even assuming the truth of petitioner's allegation that he could not have discovered the recording by diligent effort until 2001, petitioner did not need the recording to prepare and file his state or federal petitions. To the contrary, petitioner filed this petition in 2000, a year before he says he discovered the Pruszynski recording, and five years before the recording allegedly was analyzed with the newly available technology supposedly required to properly evaluate it. Because petitioner was able to file this petition without the Pruszynski recording, it could not have been a necessary factual predicate to any claim contained in either his state or federal petitions. See Jurado v. Burt, 337 F.3d 638, 644 (6th Cir.2003) ("AEDPA does not convey a right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim."); Powelson v. Sullivan, 2006 WL 2263908, at *3-4 (N.D.Cal. Aug. 8, 2006) (concluding that where the petitioner was present at his 1998 sentencing hearing he was not entitled to delayed accrual of a claim challenging his sentence, even though the petitioner allegedly did not obtain physical evidence supporting his claim until 2005).
Petitioner alleges that the prosecution suppressed evidence of a bullet fragment removed from Senator Kennedy's head during the autopsy and preoperative police photographs of external wounds; substituted a "fake" bullet for one of the actual bullets; conspired with the Los Angeles Police Department ("LAPD") to alter the forensic evidence; suppressed evidence that the gun matched to the bullets at trial was not his, based upon a discrepancy between the serial number listed on the evidence envelope and the serial number on petitioner's gun; delayed disclosure of the autopsy report; and suppressed evidence of two bullet holes in a door frame at the murder scene, which petitioner alleges to be proof of a second gunman because all eight bullets from petitioner's gun were otherwise accounted for. [Petition at 9-25, 25-49, 49-56, 56-104, 107-132].
Delayed accrual is not appropriate on these claims because all of the evidence petitioner relies upon was known to petitioner long before the limitation period expired.
Most of the evidence petitioner cites as the basis for his claims was known at the
It is worth noting that all of the facts upon which petitioner's claims are predicted are the very same facts presented in his state habeas petition. [See Petition at 9, n. 1 (explaining that citations to exhibits are references to exhibits presented in support of petitioner's habeas petition filed in the California Supreme Court on June 20, 1997)]. Because petitioner knew of the factual basis for his claims in time to file his state habeas petition on April 21, 1997, he necessarily knew those facts in time to file a timely federal petition before April 24, 1997.
The same analysis applies to petitioner's claims of ineffective assistance of counsel. The critical facts relevant to petitioner's claims were known, or could have been known, in 1988 when the state archives were made public. At the latest, the predicate facts were known by April 21, 1997, when petitioner filed his state habeas petition raising the same claims based upon the same evidence (other than the Pruszynski recording) as presented in this federal petition. [See LD 4 at 5]. Thus, petitioner actually knew or had access to the necessary facts in time to present his claims to federal court before the limitation period expired.
Petitioner contends that the statute of limitation does not bar consideration of his petition because he is actually innocent. [DN 153 at 18-57; DN 180 at 7-36].
The Supreme Court recently held that a credible showing of actual innocence constitutes an exception to the bar of
The court's analysis necessarily includes an assessment of "the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 331-332, 115 S.Ct. 851. Further, a petitioner's diligence, including any unexplained delay in presenting new evidence, bears on the probable reliability of the evidence and the ultimate determination whether the petitioner has made the requisite showing of actual innocence. Perkins, 133 S.Ct. at 1935-1936 (citing Schlup, 513 U.S. at 332, 115 S.Ct. 851).
In order to provide context for evaluating petitioner's new evidence, a brief summary
Defendant further testified regarding his background as follows: He is a Palestinian Arab. He was born in 1944 in New Jerusalem, and in 1948 he and his family moved to Old Jerusalem where they remained until coming to the United States in 1956. Throughout his eight years in Old Jerusalem there were intermittent bombings. He attended school there. His family lived under poor conditions in Old Jerusalem (e.g., the whole family resided in one room with grossly inadequate toilet facilities). He was told they were living as they were because "The Jews kicked us out of our home." He was also told of a massacre in which 250 people including children were slaughtered in cold blood by the Jews. While living in Old Jerusalem he went to a well for some water, and when the bucket came up it contained a hand and it sickened him. On one occasion he saw the exploded remains of a grocer he knew. In 1956 he heard about aggression by Israel against the Arabs in the Suez Canal. About a year after they came to the United States his father returned to Jordan. In 1963 defendant graduated from high school and subsequently attended college, but was dismissed in 1965 after missing classes. He thereafter worked with horses but left his job in 1966 and did not find another job for a year. He read everything available on the Arab-Israel conflict and on the occult, in which he became interested in 1965. He joined the Rosicrucian Order in 1965. He performed several experiments such as concentrating on a mirror and seeing the face of Robert Kennedy instead of his own.
Sirhan, 7 Cal.3d at 717-726, 102 Cal.Rptr. 385, 497 P.2d 1121 (footnotes omitted).
In support of his claim that he falls within the actual innocence exception to the statute of limitation, petitioner relies on the following evidence: an audio analysis of the Pruszynski tape recording concluding that more than eight shots were fired; eyewitnesses who said that petitioner was in front of rather than behind Senator Kennedy, and too far away to have inflicted the fatal wounds; witnesses who heard more than eight shots and eyewitnesses who saw a second shooter; ballistics evidence demonstrating that the bullet identified as the "Kennedy neck bullet" was not fired from petitioner's gun; and the opinion of Dr. Daniel Brown that petitioner was subjected to mind control or hypno-programming. [DN 180 at 15-35; see also DN 153 at 37-57; DN 195 (Sur-Reply on Issue of Actual Innocence) at 2-36].
The evidence regarding the possibility that there were more than eight shots fired, problems with the ballistics evidence, and eyewitnesses is intended to show that although petitioner was in the kitchen pantry and fired his gun at Senator Kennedy, he did not fire the bullet that ultimately hit and killed Senator Kennedy; rather, a second shooter fired the Kennedy neck bullet and is responsible for the death of Senator Kennedy. The psychological evidence is intended to show that petitioner was not responsible for the murder of Senator Kennedy because he was essentially unconscious at the time he fired his gun and was acting under the psychological manipulation of an unnamed person or persons. Thus, on petitioner's theory, whether or not petitioner fired the bullet that killed Senator Kennedy, he is not liable for the murder.
In 2005, Philip Van Praag examined the Pruszynski recording and identified thirteen distinct "shot-sounds" on the tape. Based upon his analysis, Van Praag concluded that two different guns had been discharged — petitioner's, which fired eight shots from east to west, and a different gun, which fired five shots from west to east. According to petitioner, Van Praag's analysis "conclusively demonstrates that there was in fact an additional shooter" because petitioner's revolver could only fire eight shots. Van Praag also opined that some of the shots were fired so close together in time that they could not have come from the same weapon. [DN 153 at 38-40, Ex. A (Joling Declaration); DN 180, Ex. C (Van Praag Declaration)].
Petitioner alleges that twelve or more eyewitnesses could have testified that they observed petitioner to be in front of Senator Kennedy and at least one foot away from him at the time of the initial gunshot. He also alleges that witnesses could have testified that petitioner's hand was pinned down after he fired two or three shots. Petitioner contends that this evidence would have proven that he could not have shot Senator Kennedy because Senator Kennedy was shot point blank from behind. [DN 180 at 20-24 & Ex. A (summary of eyewitness evidence regarding petitioner's position); DN 195 at 30-36 (discussion of how eyewitness evidence would demonstrate petitioner's innocence)].
One flaw with the eyewitness evidence relied upon by petitioner is that none of the witnesses actually saw petitioner at the moment Senator Kennedy was first shot. All were looking elsewhere, mostly at Senator Kennedy, and were startled by the sound of what many believed was a firecracker. The witnesses on whom petitioner relies saw the gunman stepping or rushing toward Senator Kennedy, then reaching or lunging toward Senator Kennedy, extending his hand toward Senator Kenney as if to shake his hand, pointing a revolver toward Senator Kennedy, and then firing that gun at Senator Kennedy. They also saw Senator Kennedy move his hand up toward his face immediately after the first shot. [DN 180, Ex. A]. These eyewitness accounts are consistent with the testimony presented at trial regarding the movements of the gunman and Senator Kennedy immediately before and after the first shot. [See RT 3097-3101, 3123, 3130-3133, 3189, 3203, 3213-3216, 3220, 3387, 3396-3398, 3401, 3423-3426; see also RT 4529-4531 (Noguchi's testimony that based upon the gunshot wounds, Senator Kennedy
Many of the witnesses on whom petitioner relies — namely, Edward Minasian, Juan Romero, Valerie Schulte, Karl Uecker, and Frank Burns — actually did testify at petitioner's trial that petitioner was in front of Senator Kennedy at the time of the shooting. [RT 3095-3097, 3155-3156, 3188-3189, 3396-3399, 3426-3427]. Thus, petitioner's position in front of Senator Kennedy at the time of the shooting is not new evidence, but rather evidence that the jury heard and concluded was either inaccurate, or true but consistent with petitioner having fired the fatal shot.
Perhaps most importantly, the eyewitness testimony consistently described Senator Kennedy as turning his head just as the shots were fired. That explains how the bullet could have struck the back of his head even if petitioner was technically "in front" of Senator Kennedy. [See RT 3096, 3100-3102, 3220].
According to petitioner, evidence of his innocence can be found in eyewitness accounts stating that petitioner's hand was pinned down by Minasian and Uecker after petitioner fired two or three shots and consequently petitioner's remaining shots were fired wildly around the pantry. [DN 180 at 23-24, Ex. B (summary of witness accounts)]. According to petitioner, this evidence demonstrates he could not have been in a position to fire the four close range shots that struck Senator Kennedy, because those shots were fired from behind and below Senator Kennedy. Petitioner's argument, however, is merely a new argument based upon the evidence introduced at trial. The evidence upon which it is based consists of the testimony of Minasian, Uecker, and Martin Patrusky. [See DN 180, Ex. B, RT 3095-3100, 3156-3160, 3387-3388]. The jury, however, heard evidence that Uecker and Minasian tackled petitioner after he fired two or three shots, and that the remaining shots were fired while petitioner's arm was pinned down on the steam table. Therefore, either the jurors concluded that this testimony was consistent with the forensic evidence or they believed that the eyewitnesses may have erred in calculating whether two, three, or more shots had been fired before they jumped into action.
In any event, this is not affirmative evidence that petitioner did not shoot Senator Kennedy. Senator Kennedy suffered three gunshot wounds, and all wounds were sustained in "rapid succession." [RT 4531-4533]. Several witnesses, including Minasian, testified that petitioner fired three or four shots at Senator Kennedy before Uecker grabbed his arm, and that petitioner fired four or five more shots before the gun was pinned to the steam table. [RT 3097-3100, 3123-3124, 3130-3133, 3272, 3398-3399, 3452, 3474].
Petitioner argues that none of the witnesses placed his gun within inches of Senator Kennedy, so he could not have fired the fatal shot. Petitioner relies on Uecker's testimony, but such reliance is misplaced because Uecker's account of the shooting is especially incriminating. Uecker testified that he held Senator Kennedy's right hand after his speech and guided him through the kitchen pantry on the way to the press room. [RT 3088]. Senator Kennedy stopped and let go of Uecker's hand several times in order to shake hands with kitchen staff. [RT 3090-3094]. Uecker remained within arm's reach of Senator Kennedy, with Senator Kennedy immediately to Uecker's left. When Senator Kennedy finished shaking
Nevertheless, petitioner urges the Court to consider evidence that in 1975 Uecker said that petitioner's gun never came closer than 1.5 feet from Senator Kennedy. [See 1992 Request to the Los Angeles County Grand Jury February 20, 1975, Statement of Karl Uecker, found at www.maryferrell.org].
Evidence that Uecker (or other eyewitnesses) did not see petitioner in the precise position that the autopsy report concluded the shooter must have fired from does not demonstrate petitioner's innocence. As a general matter, eyewitness testimony is notoriously inaccurate, even under far less chaotic circumstances. See Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716, 728, 181 L.Ed.2d 694 (2012) (noting research indicating that as many as one in three eyewitness identifications is inaccurate and stating that "[w]e do not doubt either the importance or the fallibility of eyewitness identifications."); United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."); Wise, Fishman & Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn. L.Rev. 435, 452 (2009) ("For decades, psychologists and defense attorneys have maintained that eyewitness testimony can be notoriously unreliable, and courts, including the United States Supreme Court, have recognized this fact."). The scene after Senator Kennedy's speech was rife with circumstances that would render it difficult to observe with precision details such as distance — it was after midnight, hot, very crowded, and emotionally charged.
This "new" evidence that the eyewitnesses all agreed that petitioner fired his gun at Senator Kennedy but placed petitioner a foot or so farther away from Senator Kennedy than the autopsy report indicated he was, is not affirmative evidence of petitioner's innocence. A jury presented with such testimony might find that the eyewitnesses were not paying attention to petitioner's exact location or were unable to accurately judge distances as a result of the crowded and chaotic scene.
Petitioner apparently believes that the observations of these eyewitnesses also eliminate him as the shooter because the forensic evidence showed that the shots were discharged at an upward angle, but no witnesses testified that petitioner's arm and gun were in any position other than a horizontal one. [DN 180 at 23]. Petitioner's overinflated argument is easily punctured. First, the evidence showed that the gunshot wounds were inflicted at merely a "very slightly upward" angle. [RT 4525]. Second, as discussed, the eyewitnesses on whom petitioner relies did not actually see Senator Kennedy get shot, and none were able to describe the exact position of petitioner, the gun, or Senator Kennedy at the crucial moment. [See DN 180, Exs. A & B]. Instead, the witnesses describe a chaotic scene with abundant motion, nothing about which precluded petitioner from firing his gun at a "very slightly upward" angle. In fact, Lisa Urso observed petitioner extend his right arm in an "upward position" just before shooting his gun. [DN 180, Ex. A at 8]. Furthermore, the height of petitioner compared with the height of Senator Kennedy provides a logical explanation for the slight upward angle of the bullet. [RT 4514] (Senator Kennedy was five feet, ten and a half inches); LD 11, Ex. 21 (Declaration of Robert Blair Kaiser stating that petitioner is five feet, six inches).
In sum, nothing about these eyewitness accounts rules out petitioner as the shooter.
Petitioner alleges that contrary to the trial evidence, no match was ever made between the neck bullet actually removed from Senator Kennedy and petitioner's gun. Petitioner points out that Dr. Noguchi removed a bullet from Senator Kennedy's neck during the autopsy and placed a "TN31" mark on its base, but he was never asked to identify this bullet during his testimony. [DN 180 at 24-30]. The bullet was admitted into evidence as Exhibit 47 at trial based upon the testimony of criminalist DeWayne Wolfer, who testified that he compared the neck bullet and two bullets taken from other victims to test bullets
Petitioner relies on the fact that Patrick Garland, one of the independent examiners in the 1975 reexamination, described Exhibit 47 as having the markings "DW" and "TN" on its base, but did not mention "31." Petitioner points out that Garland also described the bullet that allegedly struck Goldstein as bearing the mark "6" even though the doctor who removed the bullet marked it with an "x." According to petitioner, this discrepancy demonstrates that Wolfer "substituted" bullets and lied when he testified that the bullets from the victims matched the test bullets fired from petitioner's gun. [DN 180 at 24-30 & 38-43].
To begin with, the problems with the ballistics evidence involve the bullet that struck Senator Kennedy in the armpit and traveled to his neck. This was not the fatal bullet. Rather, the bullet that penetrated Senator Kennedy's brain from behind his right ear was the cause of death. [RT 4517, 4524-4526, 4529, 4534].
During the 1975 reinvestigation of the ballistics evidence, Wolfer testified at length. He was asked to find his own initials on the neck bullet, which he did, stating they were on the "front of the bullet." [LD 27 at 247-250]. Writing belonging to both Wolfer and Dr. Noguchi was on the Coroner's evidence envelope containing the bullet; and Dr. Noguchi's writing was already on the envelope when Wolfer first received it before trial. [LD 27 at 261-264]. When Garland prepared his evidence index for the 1975 reinvestigation, he noted the makings "TN" and "DW"
Petitioner further alleges that Wolfer used a different revolver with a different serial number to test the bullets. [DN 180 at 28, 42-43]. This claim is based upon the fact that the evidence envelope containing the test bullets used to match the victim bullets to the gun retrieved from petitioner at the crime scene (serial no. H-53745) referenced a weapon with a serial number from a different gun that was not petitioner's (serial no. H-18602). Despite the mismarking of the envelope, the trial testimony was clear that the test bullets
Wolfer explained that on June 10, 1968, shortly after petitioner's gun had been placed in the custody of the Superior Court, Wolfer determined that he needed to run two additional tests, requiring either petitioner's gun or one of an identical make and model. In particular, Wolfer needed to conduct a sound test (to determine whether it was possible that purported witnesses had heard gunshots from a certain location) and a gunshot residue test (to determine the distance from which the gun was fired when Senator Kennedy was hit). [LD 27 at 133, 159-160, 166, 175-176; RT 4181-4182, 4223]. Petitioner's counsel was informed at trial that a different gun was used to conduct these additional tests. Moreover, Wolfer testified that he used a different gun, stating that he employed "a gun which was the exact make and model and within a very close serial number of [petitioner's] weapon" to conduct the muzzle distance test. [RT 4179-4182]. Petitioner's counsel cross-examined Wolfer on this point. [RT 4200-4206, 4223-4224].
In his 1975 reinvestigation testimony, Wolfer explained that he entered the wrong serial number on Exhibit 55 by mistake. He said that at the time of trial, several months after the test-firing, he requested the serial number from petitioner's gun, but was given the number of the gun taken from the Los Angeles Police Department's property department for use in the sound and muzzle distance tests. Consequently, Wolfer wrote that number (H-18602) by mistake. [LD 27 at 122-125, 140, 174-175, 185]. Wolfer clarified that he only test-fired petitioner's gun to obtain bullets for comparison purposes. [LD 27 at 175].
As for petitioner's contention that the 1975 reinvestigation panel concluded that the Kennedy neck bullet (as well as the bullets from victims Goldstein and Weisel) definitely were not fired from petitioner's gun [DN 180 at 28], petitioner misrepresents the final report. Contrary to petitioner's contention, the panel unanimously concluded that the three bullets were consistent with having been fired from the
In sum, petitioner has pointed out some gaps in the ballistics evidence. At best, however, petitioner has raised a question whether the bullet shown to Wolfer that he testified matched bullets fired from petitioner's gun was the same bullet that had been removed from Senator Kennedy's neck. Petitioner, however, must do more. Nothing petitioner has presented affirmatively shows that the bullet was in fact substituted for another, that the bullet identified as consistent with being shot from petitioner's gun was not the same as the one removed from Senator Kennedy's neck, or that there actually was an additional bullet.
Petitioner relies on two witnesses, Evan Phillip Freed and Booker Griffin, who said that they saw a second shooter. [See DN 153 at 40].
According to Freed's 1992 affidavit (made nearly a quarter of a century after Senator Kennedy's assassination), Freed arrived in the pantry area five minutes before Senator Kennedy finished his speech. He noticed two men of "very similar" appearance "moving about the pantry area." The men "appeared to be looking at each other from time-to-time." One of the men was petitioner. Freed was four feet from Senator Kennedy when the shooting began. The man who had been in the pantry with petitioner during the speech pointed a gun at an upward angle toward Senator Kennedy. From the sound, it appeared to Freed that the first shot came from this man's gun. In the background, six or eight feet away, Freed saw petitioner firing a gun in the direction of Senator Kennedy. As the crowd rushed toward petitioner, they passed by the second gunman. The second gunman backed away. Freed then observed the second gunman running toward him, without a gun. Another man ran behind him in the same direction yelling, "stop that guy, stop him." The second gunman passed through the door, pursued by the other man. Freed never saw either man again. Freed told his story to the police, who suggested that he may have misheard the pursuer of the alleged second gunman. [Petition at 129-131].
Petitioner relies on witness Nina Rhodes-Hughes, who also was in the kitchen pantry at the time of the shooting.
The passage of nearly a half a century diminishes the reliability of Rhodes-Hughes's memory, and therefore, of her declaration. This is especially so given that there are no contemporaneous statements by Rhodes-Hughes that corroborate her current recollection of events now 45 years in the past.
In any event, Rhodes-Hughes's observations are similar to those previously discussed that suggest a second gunman may have been present. As discussed in detail below, even if petitioner's evidence were sufficient to permit a jury to find that there was a second shooter, it is not sufficient to warrant the conclusion that no reasonable jury apprised of the facts on which petitioner relies would have found petitioner guilty of killing Senator Kennedy, either as the principal, a conspirator, or an aider and abettor.
Considered together, petitioner's evidence does not approach the showing required by Schlup that he is actually innocent. Petitioner's evidence raises questions concerning the reliability or consistency of some of the evidence presented at his trial, but unresolved questions do not amount to new and reliable evidence of innocence. At best, petitioner's evidence suggests one possible alternative scenario, but it does not so undermine the evidence presented at his trial to the degree that a reasonable jury would not convict him.
It is noteworthy that petitioner has never denied — and could hardly do so in light of the evidence, including the fact that he was captured in the process of shooting Senator Kennedy — that he went to the Ambassador Hotel with a gun, waited in the pantry, approached Senator Kennedy with his gun drawn, and fired it eight times. Further, none of petitioner's new evidence discussed above undermines the extensive evidence of premeditation, including, for example, petitioner's statement in April 1968 to Alvin Clark that he was "planning on shooting" Senator Kennedy [RT 4012-4015], petitioner's "stalking" of Senator Kennedy by appearing at the Ambassador Hotel on June 2, 1968 [RT 4033-4049], petitioner's obtaining a gun, purchasing ammunition, and practicing at a target range on the day before the murder [RT 3567-3571, 3591-3600, 3622-3633, 3656-3662, 3667-3676], or petitioner's possession of newspaper clippings about Senator Kennedy when he was apprehended in the act of shooting him. [RT 3521-3522, 3526-3531].
[LD 8 (Bill Farr, After 17 Years, "Ifs" Still Haunt Sirhan: Assassin of Robert F. Kennedy Up for His 7th Parole Hearing, Los Angeles Times, June 24, 1985)].
Finally, even if petitioner could prove that a second gunman shot Senator Kennedy, he still would be guilty of murder under California law. Evidence about a second gunman in the pantry does not negate the testimony of numerous eyewitnesses that petitioner shot Senator Kennedy, the documentary evidence that petitioner planned to shoot Senator Kennedy, the evidence of petitioner preparing to put his plan into action by obtaining a gun and practicing shooting, or any of his admissions to intentionally shooting Senator Kennedy. Even if the second shooter's bullet was the one that killed Senator Kennedy, petitioner would be liable as an aider and abettor. See People v. Coffman, 34 Cal.4th 1, 106-107, 17 Cal.Rptr.3d 710, 96 P.3d 30 (2004) (explaining that an aider and abettor is guilty of both the offense he intended to facilitate or encourage and also of any reasonably foreseeable offense committed by the person he aids and abets), cert. denied, 544 U.S. 1063, 125 S.Ct. 2517, 161 L.Ed.2d 1114 (2005); see also People v. Sanchez, 26 Cal.4th 834, 845-849, 111 Cal.Rptr.2d 129, 29 P.3d 209 (2001) (explaining that it is proximate causation, not actual causation, together with the requisite mental state (i.e., malice) that determines a defendant's liability for murder, and holding that even where it cannot be determined which of two defendants fired the single fatal bullet, both defendants could be found guilty of first degree murder where each fired at the victim with the requisite intent).
The foregoing analysis assumes that petitioner knew about the second shooter, which is both the only logical inference and the only scenario supported by petitioner's most favorable evidence. Freed, the primary witness supporting a second shooter theory, said that he saw two men, one of which was petitioner, who appeared to be together, exchanging glances while they waited in the pantry. [Petition at 130]. Likewise, Griffin, the other eyewitness who allegedly saw a second shooter, said that he saw petitioner with the second gunman. He also saw petitioner shoot Senator Kennedy. [www.maryferrel.org
The alternative scenario — that unbeknownst to petitioner, a second unrelated person coincidentally showed up in the kitchen pantry at exactly the same time as petitioner did and proceeded to shoot Senator Kennedy at close range with the same type of gun and ammunition as petitioner was using, but managed to escape the crowded room without notice of almost any of the roomful of witnesses, lacks any evidentiary support. Petitioner's counsel does not expressly advance such a far-fetched scenario. Accordingly, the Court does not address it.
Of course, petitioner does contend that he was subjected to "hypnotic programming," in which case the existence of another unknown shooter might exculpate him. As discussed below, however, petitioner has not presented sufficient reliable evidence that he acted under the influence of hypnotic programming on the night he shot Senator Kennedy.
Petitioner submits the declarations of Dr. Daniel Brown, an associate clinical professor of psychology at Harvard Medical School, and Professor Alan Scheflin, a law professor at Santa Clara University Law School. In his November 17, 2011 declaration, Scheflin states that based upon his research, including review of thousands of declassified Central Intelligence Agency ("CIA") documents, the "concept of hypnotic programming has been well known for more than a century," the American military began experimenting with mind control in the 1940s, and it can be, and has been, used to induce antisocial conduct in humans. [DN 180, Ex. G (Declaration of Alan Scheflin) at 2-5].
In his declaration filed on April 23, 2011, Brown states that in May 2008, he began a detailed forensic psychological assessment of petitioner at the request of petitioner's counsel, who asked Brown to render an expert opinion as to whether or not petitioner "was a subject of coercive suggestive influence that rendered his behavior at the time of the assassination of Senator Robert F. Kennedy involuntary and also made him amnesic for his behavior and role in the assassination." [DN 153, Ex. I at 1-2]. Brown interviewed petitioner and performed numerous forensic psychological tests on him for more than 60 hours over a three year period. He also reviewed numerous files related to petitioner's case. [DN 153, Ex. I at 2-3]. Based upon his examination and test results, Brown concluded that petitioner is "the rare type of individual who could have been easily influenced/induced by others to engage in uncharacteristic actions for which he would subsequently become amnesic." [DN 153, Ex. I at 4]. Brown directly observed petitioner switch into a distinctly different "alter personality" state that responds in a robot-like fashion upon cue and adopts the behavior of firing a gun at a firing range, a personality state Brown refers to as "range mode." This personality state occurs only while petitioner is in a hypnotic state and in response to certain cues. Brown opines that this cue-specific "alter personality" state is likely the product of coercive suggestive influence and hypnosis. [DN 153, Ex. I at 4]. According to Brown, petitioner's test results place him in the top 7 percent of individuals in hypnotizability. [DN 153, Ex. I at 5-6].
In preparing his opinion, Brown gathered numerous "facts" from petitioner about petitioner's activities on the day of the assassination. According to petitioner, he did not plan to go to the Ambassador Hotel to kill Senator Kennedy. Rather, he went to look for girls, on the suggestion of "some guys" who said there would be a big party there. Petitioner found the bar at the hotel. He had an unusual interaction with the bartender who communicated with him by using non-verbal signals. Petitioner had the feeling that they had a relationship, but could not remember the bartender. After petitioner drank alcoholic drinks he became very tired and he wanted to go home. He went to his car but realized he was too tired to drive, so he went back to the hotel to find coffee. [DN 153, Ex. I at 8-10].
When petitioner returned to the bar, the bartender told him there was no coffee. An attractive woman with a polka dot dress was at the bar talking to the bartender. She said she knew where the coffee was. She took petitioner by the hand and led him to the ante-room behind the stage where Senator Kennedy was speaking. They discovered a large coffee urn and poured coffee from it. They were interrupted by a man in a suit who told them that they could not stay there and instructed the woman in the polka dot dress to go to the kitchen. Petitioner was attracted to the woman, so he followed her. Petitioner was fascinated with the woman and thinking about seducing her. [DN 153, Ex. I at 10-11].
The woman suddenly looked over petitioner's head, then tapped or pinched petitioner. It was startling to be pinched, and it felt sharp like a pin or fingernail. The woman pointed and said "look." Petitioner was puzzled about what she meant, then
Brown gathered facts that petitioner's family and friends said that petitioner "underwent a fundamental personality change after a fall from a horse while racing at the Corona race track in September 25, 1966." Petitioner's medical records, however, showed no brain injury. After the fall, petitioner was missing for two weeks. According to Brown, these facts "suggest that the horse fall was drug-induced and staged, and that Mr. Sirhan was taken to an unidentified hospital unit for two weeks, and whatever was done to him caused a fundamental change in his personality." [DN 153, Ex. I at 14-17].
In conclusion, Brown states:
[DN 153, Ex. I at 18].
In his supplemental declaration, Brown recounted that during hypnosis, petitioner recalled being taken to a police firing range and being shown how to shoot at human targets and vital organs. Petitioner remembered the name of the firing range and described a man with a moustache and a foreign accent who introduced him to the idea of killing government officials. According to Brown, an entry in police report corroborates that not only did such a police firing range exist, but that petitioner visited that police firing range and signed the register days before the assassination. He was accompanied by a man with a turned down moustache and a foreign accent who refused to identify himself or sign the register. [DN 180, Ex. H at 4-5].
Brown explains that on the night of the assassination, all that was required was for petitioner to show up at a designated place induced by post-hypnotic suggestion, to be led to the site by a handler, and then to adopt "range mode" upon cue. Brown states that such behavior is not difficult to induce in an individual who, like petitioner, is extremely vulnerable to hypnotic suggestion. At the time of the assassination, petitioner thought he was firing at stationary circle targets at a firing range. He did not know that he was firing at Senator Kennedy. [DN 180, Ex. H at 14-15].
As further support for his theory that petitioner was programmed to assassinate Senator Kennedy, and therefore is not legally responsible for his acts, Brown notes that:
[DN 180, Ex. H at 20-21]. Brown also identifies "new evidence" supporting his theory, including:
[DN 180, Ex. H at 22-23].
Finally, Brown opines that petitioner's admissions, including his admission at trial, "exemplify a specific form of false confession," namely an involuntary internalized false confession. [DN 180, Ex. H at 23-24].
Brown agrees that most individuals cannot be induced to commit wrongful acts with hypnosis. In his opinion, however, petitioner is within the small 4 or 5 percent of individuals who are highly hypnotizable and socially compliant, with a high dissociative coping style, all which "predict strong vulnerability to undue suggestive influence or coercive persuasion, hypnotic and non-hypnotic." [DN 180, Ex. H at 13].
Brown notes that Dr. Simson-Kallas at San Quentin was asked to interview petitioner by the supervising psychiatrist because the supervising psychiatrist did not find any evidence to support the defense and prosecution experts' opinions that petitioner suffered from paranoid schizophrenia. Dr. Simson-Kallas concluded that there was no evidence for schizophrenia and that petitioner might have been "programmed." He was then taken off the case before he was able to further evaluate the question of hypnotic programming. [DN 180, Ex. H at 5-6].
On the other hand, respondent cites evidence suggesting that many or most scientists agree that hypnotized persons retain ultimate control over their actions and cannot be programmed to commit antisocial acts against their will. [DN 174 (Respondent's Supplemental Brief on Actual Innocence) at 12-13]. Brown himself concedes that there are two schools of thought regarding hypnosis and that experts disagree on the very concept of what hypnosis is and what is able to achieve. [DN 180, Ex. H at 8-9].
Griffin, 350 F.3d at 965 (quoting Harris, 949 F.2d at 1515). The evidence of hypnosis relied upon by petitioner, including the opinions of Brown, is the type of evidence the Ninth Circuit has held are insufficient to make a colorable showing of actual innocence.
Even considering all of petitioner's new psychological evidence, he still fails to make the requisite showing. Petitioner's theory that he was subject to mind control may be intriguing, but in order to meet the Schlup test, petitioner must establish that in light of this evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The experts' statements about the feasability of hypno-programming and their opinions that petitioner was a good candidate for psychological manipulation may be sufficient to suggest that petitioner's mind-control theory is not impossible, but they fall far short of demonstrating that petitioner actually was subjected to mind control.
Furthermore, petitioner's own recitation of the events leading up to the murder are vague and fail to demonstrate that he actually was the victim of hypno-programming by some unnamed person or entity. Petitioner's recently recalled memories about the bartender, the woman in the polka dot dress pinching him, and entering "range mode," are far from compelling evidence of his innocence. Petitioner's recitation of the events of the night he shot Senator Kennedy amount to self-serving recollections that, even if believed, do no more than suggest a sinister plot and a possibly exculpatory theory — namely, that petitioner was under a hypnotic trance and did not intentionally shoot Senator Kennedy. Whether or not the theory that a person can be hypnotized to commit murder and then to lose his memory of committing that murder is scientifically credible, and the Court assumes that it is solely for purposes of this analysis, petitioner has not provided any reliable evidence that this actually occurred. Evidence of a mysterious woman in a polka dot dress, petitioner's "feeling" that he might have had a relationship with the bartender who used non-verbal signals such as nodding his head and making eye contact, petitioner's feeling "tired" after drinking alcohol, his following a woman whom he found attractive into the pantry,
Moreover, the opinions of Brown and Scheflin are inconsistent with, and substantially contradicted by, the various psychiatrists who examined petitioner forty years earlier, contemporaneously with the crime. Unlike the psychological experts who testified at petitioner's trial, Brown and Scheflin were unable to personally observe and examine petitioner in 1968 to render opinions about his then-current mental state. Thus, Brown's retrospective opinion based upon tests assessing petitioner's mental condition forty years after the fact are of negligible weight.
Based upon the evidence presented, and contrary to petitioner's argument, it is not likely that jurors would believe a defense that he was an involuntary actor who shot Senator Kennedy as a result of sophisticated hypno-programming and memory implantation techniques that rendered him unable to consciously control his thoughts and actions. Petitioner has presented a diverting — albeit farfetched — theory. But it is no more than that.
In sum, petitioner has presented evidence that arguably casts some doubt on the details or the reliability of some of the inculpatory evidence presented at trial (such as the ballistic evidence), evidence suggesting the possibility that another shooter could have been involved,
For the foregoing reasons, it is recommended that respondent's motion to dismiss the petition be granted.
Dated: August 26, 2013.
Prior to Petitioner filing his supplemental brief on April 23, 2011, Judge Snyder issued an order on April 11, 2011, to temporarily restrain Nate Sanders and Michael McCowan from selling certain documents Petitioner prepared at the direction of McCowan, who had served as Petitioner's investigator during the course of the instant habeas proceedings. (Dkt. No. 148.) Judge Snyder issued a preliminary injunction against McCowan and Sanders on April 25, 2011. (Dkt. No. 155.)
(Dkt. No. 180-1 at 11-12.) Further, Mr. Romero's statements place Petitioner very close to Senator Kennedy, explaining to the LAPD that he saw and felt the gunpowder burns. (Dkt. No. 180-1 at 12.) During trial, Frank Burns testified that he heard "the noise, the ripple of a gun, and it sounded like firecrackers.... It seemed just like a ripple of noise." (Dkt. No. 180-1 at 17.) All Mr. Burns could see "was an arm extended holding a gun" and people in the surrounding area as well as "right next to the serving table." (Dkt. No. 180-1 at 17.) Edward Minasian also testified that there was a large group of people around Petitioner. (Dkt. No. 180-1 at 27.) The varying descriptions evidence how difficult it would be for an individual to accurately account for the movements and location of Petitioner and the Senator due to the sheer number of people inside of the kitchen pantry as well as the hysteria that erupted after the first shot.
(Dkt. No. 180-3 at 24.) Dr. Brown also concludes, "Petitioner was generally amnesic for writing passages in his spiral notebooks, but handwriting analysis has generally supported that the writings were made by his hand." (Dkt. No. 180-3 at 24.)
Id. at 725, 102 Cal.Rptr. 385, 497 P.2d 1121.
28 U.S.C. § 2244(d)(1).
Sirhan, 7 Cal.3d at 734 n. 13, 102 Cal.Rptr. 385, 497 P.2d 1121.
In addition, the prosecution introduced evidence of an envelope bearing the notation "RFK must be disposed of like his brother was;" a notebook containing "a prediction of America's downfall, an attack upon its leaders, and comments relating to `doing away' with those leaders;" and a second notebook which included notations such as "R.F.K. must be assassinated" and "Ambassador Goldberg must die." The handwriting on the envelope and in the notebooks was identified as petitioner's. Sirhan, 7 Cal.3d at 736, 741, 102 Cal.Rptr. 385, 497 P.2d 1121.
