Alvaro Quezada v. Albert Scribner , 604 F. App'x 550 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALVARO QUEZADA, No. 13-55750
Petitioner - Appellant, D.C. No. 2:04-cv-07532-RSWL-
MLG
v.
ALBERT K. SCRIBNER, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted March 4, 2015
Pasadena, California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
1. Alvaro Quezada first appealed his Brady and Napue claims to this
court in 2008. Shortly after the parties filed their briefs in that appeal, Quezada
filed a motion to remand based on newly discovered evidence. This court granted
Quezada’s motion and remanded the case to the district court “with instructions to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conduct an evidentiary hearing” and “to determine whether the new facts
render[ed] Quezada’s Brady claim unexhausted.” Quezada v. Scribner, 611 F.3d
1165, 1168 (9th Cir. 2010). Further, this court instructed that “[i]f the district court
concludes that the new facts render Quezada’s Brady claim unexhausted, the
district court should consider whether[, in light of the new facts,] Quezada is
procedurally barred from proceeding in state court.” Id. If the district court
concluded that, under California law, Quezada was not procedurally barred, “the
court [was to] stay and abey federal proceedings so that Quezada may exhaust his
claims in state court.” Id. Only if the district court determined that Quezada’s
claims were exhausted and clearly barred by California law was the district court to
determine whether Quezada could demonstrate cause and prejudice or manifest
injustice to permit federal review of his claims. Id.
The magistrate judge (whose recommendations and findings the district
court adopted) provided substantial analysis concerning Quezada’s ability to
demonstrate cause and prejudice to allow federal review of his claims, but did not
address the preliminary issues of whether Quezada’s claims were exhausted or
procedurally barred in light of the newly discovered evidence.
We are mindful that “[w]here a federal habeas petitioner presents newly
discovered evidence or other evidence not before the state courts such as to place
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the case in a significantly different and stronger evidentiary posture than it was
when the state courts considered it, the state courts must be given an opportunity to
consider the evidence.” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)
(quoting Dispensa v. Lynaugh, 826 F.2d 375, 377 (5th Cir. 1987)). Further, “a
federal court may deny an unexhausted petition on the merits only when it is
perfectly clear that the applicant does not raise even a colorable federal claim.”
Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (emphasis added). The
district court found that Quezada had shown cause for his failure to present the
newly discovered evidence to the state court, indicating that Quezada had, at a
minimum, presented a colorable claim.
With this precedent in mind, we remand this case to the district court and
echo the instructions of our 2010 decision. On remand, we request that the district
court first determine whether the new evidence discovered during the district
court’s evidentiary hearing renders Quezada’s claims unexhausted. See Weaver v.
Thompson, 197 F.3d 359, 364 (9th Cir. 1999), Aiken, 841 F.2d at 883. If the
district court concludes that the claims are not exhausted, we then request that the
district court determine whether, under California law, Quezada’s claims are
clearly procedurally barred. See Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th
Cir. 2002). When determining whether Quezada’s claims are clearly procedurally
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barred, the district court must determine whether, in light of the new evidence, the
state court would clearly consider the claim barred under its procedural rules. See
Harris v. Reed, 489 U.S. 255, 263 & n.9 (1989). If it is not clear what the state
court would do, the district court should stay and abey federal proceedings so that
Quezada may present his claims to the state court. See Rhines v. Weber, 544 U.S.
269, 275-76 (2005).
2. In addition to his Brady and Napue claims, Quezada claims that the
state trial court improperly excluded a co-defendant’s out-of-court statement in
violation of Chambers v. Mississippi, 410 U.S. 284 (1973). The trial court
excluded the statement (made to the co-defendant’s cellmate) as hearsay that did
not meet the declarations against interest exception in Cal. Evid. Code § 1230. The
California Court of Appeal addressed this claim on the merits and concluded that
the district court had not abused its discretion in excluding the statement. The
Court of Appeal reasoned that “only those portions of the declarant’s statements
that are actually against his or her penal interest are admissible.” Reviewing the
California Court of Appeal’s decision under the Antiterrorism and Effective Death
Penalty Act standard in 28 U.S.C. § 2254(d), we conclude that the California Court
of Appeal’s decision was not an unreasonable application of clearly established
Federal law or an unreasonable determination of the facts. See Williamson v.
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United States, 512 U.S. 594, 600-01 (1994) (holding that the statement against
interest exception in Federal Rule of Evidence 804(b)(3) “does not allow
admission of non-self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory.”).
3. On appeal, Quezada also raised the uncertified issue that the
cumulative effect of his alleged errors rendered his trial fundamentally unfair.
While we have the authority to expand the certificate of appealablity, Hiivala v.
Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam), we decline to do so at
this time. In light of our remand of Quezada’s Brady and Napue claims, a decision
concerning Quezada’s uncertified issue is premature.
4. We also deny Quezada’s request for judicial notice, without prejudice, as
the motion is rendered moot by this disposition.
REMANDED.
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