Beaty v. Schriro ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD EDWARD BEATY, 
Petitioner, No. 08-71249
v.
 D.C. No.
CV-92-02076-SRB
DORA B. SCHRIRO, of Arizona
Department of Corrections, ORDER
Respondent.

Argued and Submitted
December 16, 2008—Pasadena, California
Filed February 2, 2009
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
M. Margaret McKeown, Circuit Judges.
COUNSEL
Ashley J. McDonald, Office of the Federal Public Defender,
Phoenix, Arizona, and John E. Charland, Phoenix, Arizona,
argued the cause for the appellant and submitted briefs. Jon
M. Sands, Federal Public Defender, and Dale A. Baich, Office
of the Federal Public Defender, Phoenix, Arizona, were on the
briefs.
John Pressley Todd, Office of the Attorney General, Phoenix,
Arizona, argued the cause for the appellee and submitted a
brief. Terry Goddard, Attorney General, and Kent E. Cattani,
Office of the Attorney General, Phoenix, Arizona, were on the
brief.
1149
1150 BEATY v. SCHRIRO
ORDER
We must decide whether any of the claims in this petition
for leave to file a second and successive habeas petition made
by a petitioner under sentence of death are cognizable at this
stage.
I
Petitioner Donald Edward Beaty, who was convicted of
murder in Arizona state court in 1985, filed a habeas petition
with the United States District Court for the District of Ari-
zona in 1992, which it denied in 1999. Beaty then appealed
to this court. On August 27, 2002, we denied a certificate of
appealability on all claims except as to the voluntariness of
Beaty’s confession. We “remand[ed] to the district court for
an evidentiary hearing limited to” consideration of the volun-
tariness claim. Beaty v. Stewart (“Beaty I”), 303 F.3d 975,
994 (9th Cir. 2002). After an evidentiary hearing, the district
court ruled against Beaty on his voluntariness claim in 2005.
Beaty asked the district court to amend the original habeas
petition to include a plethora of other claims. The district
court denied Beaty’s motions to amend. Beaty again appealed
to this court, and we affirmed the district court’s ruling on the
voluntariness claim. Beaty v. Schriro (“Beaty II”), 509 F.3d
994 (9th Cir. 2007), cert. denied, 129 S. Ct. 405 (2008).
While Beaty II was pending before this court, Beaty (who
was represented by counsel) made several pro se submissions,
including an “Application for Certificate of Appealability to
Expand the Record and/or Application to File Second and
Successive 2254 Petition for Writ of Habeas Corpus (28
U.S.C. 2244(b)) and Appointment of Counsel.” On March 25,
2008, we construed this filing as an application for a second
or successive habeas petition and ordered it filed under this
new docket. We directed Beaty’s counsel to address the issues
raised in that application, which we now consider in turn.
BEATY v. SCHRIRO 1151
II
A
Beaty argues that we should have considered his claims
raised in his 2008 pro se filing as part of his original habeas
petition. He also argues that the district court should have
allowed him to amend his habeas petition in 2005.
B
To support his claims, Beaty cites Woods v. Carey, 525
F.3d 886 (9th Cir. 2008). Beaty’s reliance on Woods is
unavailing. There, the petitioner was pro se, and the Woods
court specifically emphasized the importance of liberality in
pleading requirements in pro se cases. See id. at 889-90 (“A
document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers”
(internal quotation marks omitted)). More importantly, the
Woods petitioner filed his new petition six months after his
initial petition, before the district court had acted on it. In con-
trast, Beaty filed his motions to amend after the district court
had denied his claims, and he brought new claims before this
court even later. We have already upheld the district court’s
denial on all bases except for the voluntariness claim. The
Supreme Court has denied certiorari, Ryan v. Beaty, 538 U.S.
1053 (2003), and the district court has once again denied
Beaty’s remaining claim after holding an evidentiary hearing.
To extend Woods to allow the filing of new claims this late
in the process would essentially nullify the rules about second
and successive petitions created by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (“AEDPA”).
1152 BEATY v. SCHRIRO
C
Beaty also cites the reasoning of Ching v. United States,
298 F.3d 174 (2d Cir. 2002).1 There, the petitioner filed a new
§ 2241 petition before the Second Circuit had ruled on his
§ 2255 petition. Ching held that the district court should con-
sider allowing the petitioner to amend his petition, although
the district court should exercise its discretion in considering
such a request. See id. at 180. The Second Circuit also left it
for the district court to decide whether the amended claims
related back under Federal Rule of Civil Procedure 15(c) (and
thus, whether or not they were time-barred under AEDPA).
See id. at 181.
Ching is of little relevance. Beaty has already had an
opportunity to have all his claims decided upon — by the dis-
trict court in 1999, by this court in 2002, and by the Supreme
Court in 2003. We denied all of Beaty’s claims except for the
voluntariness claim, which we remanded. Not only had we
ruled in Beaty’s case, but that ruling — that Beaty’s petition
was denied as to all grounds but voluntariness — had become
final two years before Beaty petitioned for an amendment in
the district court. The district court did not err by denying
Beaty leave to amend.
D
Accordingly, Beaty must meet the standard required of him
by 28 U.S.C. § 2244(b). He must either show “that the claim
relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
1
Although this court in Woods quoted extensively from Ching, we did
not address whether its holding would apply to a petition on appeal after
having been denied in the first instance by the district court. Today, we
decide that Beaty cannot use Woods to amend his petition after the district
court has ruled and proceedings have begun in this court (much less after
the Supreme Court denied certiorari on the claims on which we had
already ruled).
BEATY v. SCHRIRO 1153
previously unavailable” or that both “the factual predicate for
the claim could not have been discovered previously through
the exercise of due diligence [and] the facts underlying the
claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convinc-
ing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the under-
lying offense.” 28 U.S.C. § 2244(b)(2). He has failed to make
a showing of either.
III
A
Beaty argues that we should have considered his pro se fil-
ings, as they “would have informed the Court’s decision on
the voluntariness issue.” The only potentially significant fact
counsel points to is that “Dr. Overbeck testified how the
group attack on Beaty would have compelled him to seek
comfort from the group therapist to reaffirm his human worth,
and to seek assurances, endorsement, and safety.” Dr. Over-
beck’s testimony was before us in the earlier case, as was the
entire district court record. Beaty’s argument is without merit.
B
Beaty’s claim that a judge imposed the death sentence in
violation of this court’s decision in Adamson v. Ricketts, 865
F.2d 1011 (9th Cir. 1988) (en banc), cannot succeed. Adam-
son’s central teaching — that capital sentencing by judges
was unconstitutional — was rejected by the Supreme Court in
Walton v. Arizona, 497 U.S. 639 (1990).2 Beaty argues that
because Adamson was the law while his case was on direct
review, it should apply here and his death sentence should be
2
Walton itself was overruled in Ring v. Arizona, 536 U.S. 584 (2002).
However, Ring is only applicable to cases on direct review. Schriro v.
Summerlin, 542 U.S. 348 (2004).
1154 BEATY v. SCHRIRO
invalidated. However, Adamson was never “made retroactive
to cases on collateral review by the Supreme Court.” Nor was
it “previously unavailable” — the Adamson decision in 1988
was handed down well before Beaty’s first habeas petition.
Accordingly, under AEDPA this claim is procedurally barred.
C
Beaty’s claim that he is “innocent of the death penalty” is
unconvincing. In his brief, Beaty points to alleged organic
brain damage and his rearing in a “profoundly abusive and
dysfunctional family.” At most, however, these would consti-
tute factors in mitigation. A claim of actual innocence of the
death penalty would require a showing that one of the statu-
tory aggravators or other requirements for the imposition of
the death penalty had not been met. Sawyer v. Whitley, 505
U.S. 333, 345 (1992). This Beaty has failed to do.
D
Beaty claims that he is actually innocent of the murder of
Christy Ann Fornoff. He asserts that the prosecution’s lead
witness at the trial, Angel Bello, killed a fourteen-year-old
“girl named Tina Reed in exactly the same manner in which
Christy Fornoff was killed.” Assuming, without deciding,
that Bello did in fact murder Tina Reed, mere speculation
about a possible suspect is not enough to meet the standard
required by § 2244(b). Furthermore, any such suspicion is
severely undercut by the physical evidence. At trial, an inves-
tigator testified that the semen stains could be identified as
coming from a type B secretor with a PGM type of 1 and a
PGM subtype of 1+1-. In contrast, Bello is a type A secretor.
Thus, Beaty cannot demonstrate that “facts underlying the
claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convinc-
ing evidence that . . . no reasonable factfinder would have
found the applicant guilty of the underlying offense.” 28
U.S.C. § 2244(b)(2).
BEATY v. SCHRIRO 1155
E
Beaty also raises a claim that he may not be executed under
Atkins v. Virginia, 536 U.S. 304 (2002). We have not yet
expressed a view on whether Atkins is retroactive. Assuming
for the purposes of this order that it is, Beaty has not
exhausted his Atkins claim in state court. Nor did Beaty raise
an Atkins claim within one year of the Court’s decision in
Atkins, as required by AEDPA. 28 U.S.C. 2244(d)(1)(C). His
Atkins claim is therefore barred. Beaty asks that we hold these
proceedings in abeyance so that he can proceed to exhaust the
Atkins claim in state court. We respectfully decline to do so.3
Beaty’s request for further expert examination is also denied.
IV
Finally, Beaty asks us to declare section 2244 unconstitu-
tional. This question is firmly settled by Ninth Circuit case
law against Beaty’s position. See Crater v. Galaza, 491 F.3d
1119 (9th Cir. 2007), cert. denied, 128 S. Ct. 2961 (2008);
Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000).
V
Finding no merit in any of the claims newly raised by
Beaty, the application to file a second or successive writ of
habeas corpus is DENIED. No petition for rehearing or
motion for reconsideration shall be filed or entertained in this
case. See 28 U.S.C. § 2244(b)(3)(E).
3
Beaty has had many opportunities to exhaust his Atkins claim in state
court. The state trial court allowed for psychological testing of Beaty to
determine if he is mentally retarded prior to the filing of his fifth amended
complaint. Beaty filed his fifth petition for post-conviction relief on Octo-
ber 29, 2003, and amended it on April 21, 2004. He filed a sixth petition
on October 17, 2005. In neither of these petitions did Beaty raise an Atkins
issue. Against this background, it appears that Beaty is engaging in “need-
less piecemeal litigation[, or] . . . collateral proceedings whose only pur-
pose is to vex, harass, or delay.” Sanders v. United States, 373 U.S. 1, 18
(1963).
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