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Alfaro v. Johnson

United States Court of Appeals, Ninth Circuit

July 14, 2017

Maria Del Rosio Alfaro, Petitioner-Appellee,
v.
Deborah K. Johnson, Respondent-Appellant.

          Argued and Submitted June 14, 2017 Seattle, Washington

         Appeal from the United States District Court For the Central District of California Cormac J. Carney, District Judge, Presiding D.C. No. 2:07-cv-07072-CJC

          Robin Helene Urbanski (argued), Deputy Attorney General; James William Bilderback II, Supervising Deputy Attorney General; Michael J. Mongan, Deputy Solicitor General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Edward C. DuMont, Solicitor General; United States Attorney's Office, San Diego, California; for Respondent-Appellant.

          Michael David Weinstein (argued) and Celeste Bacchi, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellee.

          Before: JAY S. BYBEE, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus

         The panel reversed the district court's grant of Maria Alfaro's habeas corpus relief on her claim, based on Jones v. Chappell, 31 F.Supp.3d (C.D. Cal. 2014), rev'd sub nom., Jones v. Davis, 806 F.3d 538, 541 (9th Cir. 2015), that California's post-conviction system for administering the death penalty violates the Eighth Amendment's prohibition against cruel and unusual punishment.

         The panel held that Alfaro's claim is barred by her failure to exhaust available state court remedies, and is untimely under Fed. R. Crim. P. 15(c).

         The panel held that Alfaro is not excused from her failure to exhaust the claim. The panel wrote that even assuming futility persists as a potential exception to AEDPA's exhaustion requirement, it does not excuse Alfaro's failure to exhaust her state court remedies in this instance in which the California Supreme Court has not definitively rejected the claim she now raises in her habeas petition. The panel rejected Alfaro's argument that her failure to exhaust should be excused because requiring her to return to state court would compound the delay she has already suffered. The panel explained that Alfaro will not be prejudiced by application of the exhaustion requirement because so long as her petition is pending in state court, the constitutional violation of which she complains (unconstitutional imposition of the death penalty) will not take place.

         The panel held that neither relation back under Rule 15 nor the emergence of new facts renders Alfaro's claim, which was filed as part of her Third Amended Petition more than a year after her conviction became final, timely. Because Alfaro has not previously alleged facts regarding systemic delay in California's post-conviction death penalty process, the panel held that her claim does not relate back to earlier, timely-filed claims. The panel concluded that the effort required to aggregate the publicly available information upon which her instant claim relies rendered that information discoverable through the exercise of due diligence.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         Deborah Johnson, Warden of the Central California Women's Facility, appeals the district court's grant of Petitioner-Appellee Maria Alfaro's petition for habeas corpus relief. We hold that Alfaro's claim is barred by her failure to exhaust available state court remedies, and is untimely under Federal Rule of Civil Procedure 15(c). We therefore reverse the district court's grant of Alfaro's petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 1992, a jury convicted Alfaro of first degree murder, burglary, and robbery, and also found true the special circumstance that she committed the murder in the course of a first degree burglary and robbery. People v. Alfaro, 41 Cal.4th 1277, 1283, 1288 (2007). After an initial penalty-phase jury failed to reach a verdict, a second penalty-phase jury sentenced Alfaro to death. Id. at 1292, 1294.

         On November 4, 1999, Alfaro filed a direct appeal of her conviction and sentence, asserting 15 separate grounds for relief. The California Supreme Court affirmed Alfaro's conviction and sentence on August 6, 2007. See id. at 1282.

         Alfaro filed her first state petition for habeas corpus relief on July 31, 2001, approximately two months after the close of briefing in her direct appeal. The California Supreme Court denied Alfaro's petition in a summary order on November 28, 2007. Alfaro then filed a second state habeas petition on March 2, 2009, asserting 32 additional claims. The ...


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