Opinion
Case No. CV 00–05686 BRO AJWx.
2015-01-05
SIRHAN B. Sirhan, Plaintiff, v. George GALAZA et al., Defendant.
Adrian Stuart Williams, Linder Yankelevitz, Los Angeles, CA, Laurie Dusek, Laurie D. Dusek Law Office, Rego Park, NY, William F. Pepper, William F. Pepper Law Office, New York, NY, for Plaintiff. Jaime L. Fuster, Kenneth N. Sokoler, CAAG–Office of the Attorney General, Los Angeles, CA, for Defendant.
Adrian Stuart Williams, Linder Yankelevitz, Los Angeles, CA, Laurie Dusek, Laurie D. Dusek Law Office, Rego Park, NY, William F. Pepper, William F. Pepper Law Office, New York, NY, for Plaintiff.
Jaime L. Fuster, Kenneth N. Sokoler, CAAG–Office of the Attorney General, Los Angeles, CA, for Defendant.
ORDER RE: ACCEPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
BEVERLY REID O'CONNELL, District Judge.
I. INTRODUCTION
“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.
II. PROCEDURAL HISTORY
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 denied Petitioner's motion to recuse all district and magistrate judges in the Central District of California. (Dkt. No. 13.) On November 30, 2000, Judge Marshall denied Petitioner's motion for reconsideration. (Dkt. No. 24.) Judge Marshall then denied Petitioner's motion for certification to file an interlocutory appeal on March 28, 2001, and the United States Court of Appeals denied Petitioner's request for a writ of mandamus on May 20, 2001. (Dkt. Nos. 37, 47.)
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, recommended the dismissal of Petitioner's habeas matter on December 28, 2012. (Dkt. No. 198.) On April 3, 2013, Petitioner timely filed his objection, and Judge Wistrich affirmed his report and recommendation of dismissal on August 26, 2013. (Dkt. No. 207, 216.) The matter was assigned to this Court on May 10, 2013. (Dkt. No. 212.) This Court now considers Petitioner's September 29, 2013 objections to Judge Wistrich's affirmed report and recommendation to dismiss. (Dkt. No. 218.) Pursuant to 28 U.S.C. § 636, this Court has reviewed the Petition and other papers along with the attached Report and Recommendation of Judge Wistrich. The Court has also reviewed Petitioner Sirhan Bishar Sirhan's objections and Respondent George Galaza's response. Having so considered the significant number of filings and orders predating the Court's receipt of this matter, the Court makes its determination de novo.
On February 23, 2011, Judge Wistrich ordered Petitioner to prepare a supplemental brief to substantiate his opposition to Respondents' motion to dismiss. (Dkt. No. 137.) On August 29, 2011, Judge Wistrich ordered Respondents to prepare a supplemental brief in light of the Ninth Circuit's decision in Lee v. Lampert, 653 F.3d 929 (9th Cir.2011), regarding equitable tolling. (Dkt. No. 171.)
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.)
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.
III. LEGAL STANDARD
“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 bar ... or ... [the] expiration of the statute of limitations.” ––– U.S. ––––, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). To show actual innocence, “an otherwise time-barred habeas petitioner [must] demonstrate[ ] that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir.2011) ; accord Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). After this showing, “the petitioner may pass through the Schlup gateway and have his constitutional claims heard on the merits.” Id. “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851.
“[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.
IV. OBJECTIONS
A. Eyewitness Testimony
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 shoot the fatal bullet. Yet Petitioner fails to address the chaos that ensued once Petitioner began shooting and the subsequent movements of the Senator and Petitioner in reaction to the shooting.
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. (See Dkt. No. 180–1 at 5–36; Dkt. No. 153–2 at 5–22, 29–41.) In fact, Mr. Uecker's testimony described Senator Kennedy as turning his head just as the shots were fired. Second, none of the eyewitnesses saw Senator Kennedy sustain the fatal shot. Any estimates of muzzle distance or the angle of Petitioner's gun were based on the position of the gun either before the shooting began or at the time of the first shot. While each statement initially places Petitioner in front of Senator Kennedy, they vary in describing the direction and distance between the two individuals. (See Dkt. No. 180–1 at 2–22.) Third, eyewitness statements paint a chaotic picture, which would undoubtedly make it difficult for eyewitnesses to gauge the exact locations of Petitioner and the Senator. All of this evidence was available to Petitioner at the trial. Even the declaration of Petitioner's new witness, Ms. Nina Rhodes–Hughes, supports this characterization, as she describes how “bullets were flying seemingly everywhere” while a group of men attempted to subdue Petitioner. (Dkt. No. 218–1 ¶¶ 10–11.) Ms. Rhodes–Hughes describes how she fainted, was trampled by individuals in the kitchen, awoke with a wet dress, and had one shoe knocked off her foot. (Dkt. No. 218–1 ¶ 13.) A jury reasonably may have concluded that witnesses could not be expected to pinpoint the exact location of those two parties in the midst of such chaos.
In statements to the police and Federal Bureau of Investigation (“FBI”), several eyewitnesses observed the Senator move when the shooting began. Edward Minasian saw a gunman running or darting toward the Senator before the first shot and then saw the Senator raise his arm. (Dkt. No. 180–1 at 5–7.) Lisa Urso saw Petitioner extend his arm and take a step forward before the first shot, (Dkt. No. 153–2 at 11), and then she saw the Senator stagger forward or backward after the first shot, (Dkt. No. 180–1 at 27–28). Martin Patrusky observed the gunman moving and extending his hand toward the Senator before the first shot. (Dkt. No. 180–1 at 10.) Juan Romero saw the gunman reaching toward the Senator and then observed the Senator place his hands to his face. (Dkt. No. 180–1 at 12.) Karl Uecker did not see the gunman prior to the initial shots but felt him moving in between him and the steam table. (Dkt. No. 180–1 at 16.) Mr. Uecker then “heard [ ] something like a firecracker” and then “something like a shot.” (Dkt. No. 180–1 at 16.) Peter Hamill noticed the Senator's head was turned prior to the first shot. According to Mr. Hamill, the Senator was “standing with his body facing in an Easterly direction and his head was turned to his left in a Northerly direction. His right arm was across his body and he was shaking hands.” (Dkt. No. 180–1 at 18.) Mr. Hamill saw the Senator put his right hand up in the air after the first shot. (Dkt. No. 180–1 at 18.) Boris Yaro saw the Senator moving in a “protective effort” and the gunman “lunging” at the Senator. (Dkt. No. 180–1 at 19.)
Petitioner argues that there are “three independent eyewitnesses who clearly state[d] that the Senator had finished shaking hands,” invalidating Respondent's contention that the Senator was turning his head. (Dkt. No. 218 at 11–12; accord Dkt. No 180–1 at 20–21.) Instead, Petitioner argues that the Senator “was walking forward clearly, frontally, facing Petitioner.” (Dkt. No. 218 at 11–12; accord Dkt. No 180–1 at 20–21.) On direct examination, however, Mr. Uecker testified that Senator Kennedy's “upright arm was turning” when “[Mr. Uecker] realized there was somebody following [him] with a gun.” (Trial of Sirhan Bishara Sirhan at 3096, available at http://www.maryferrell.org/mffweb/archive/get Toc.do?docId=99505&relPageId=1&source=controls_D.jsp (Sept. 16, 2014) (hereinafter “RT”).) Additionally, Mr. Uecker testified that as the Petitioner began shooting “[t]he Senator put up his right hand and he started turning around, and while he was turning, there was fighting with [Petitioner].” (RT at 3101.)
For example, Mr. Hamill saw the Petitioner and the gun, but “he did not see the flashes from the gun nor the Senator being hit.” (Dkt. No. 180–1 at 18.)
Petitioner contends that he could not have caused the fatal shot because the gunpowder burns prove it was a close range shot, and eyewitnesses' statements place him too far away from the Senator in order to cause such wounds. Eyewitness statements, however, were not consistent in documenting the distance between Petitioner and Senator Kennedy. Mr. Hamill stated to the Los Angeles Police Department (“LAPD”) that the gun was about two feet from the Senator, although he felt that he could be mistaken about the exact distance due to the circumstances. (Dkt. No. 180–1 at 18.) Richard Aubry told the LAPD that Petitioner was six or seven feet ahead of the Senator and the newsmen. (Dkt. No. 180–1 at 22.) Mr. Romero told the FBI that he
noticed a man who was to [his] left and who was smiling and who appeared to be reaching over someone in an effort to shake Senator Kennedy's hand. At about the same time [he] heard gunfire and [he] noticed that this individual was holding a gun in his hand ... and that the gun was approximately one yard from Senator Kennedy's head.
(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.
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.
B. Ms. Nina Rhodes–Hughes's Declaration
Initially, Petitioner failed to submit a declaration from Ms. Nina Rhodes–Hughes. Now, attached to his objections, Petitioner provides a recent declaration. A “ ‘district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation.’ ”Brown v. Roe, 279 F.3d 742, 744 (9th Cir.2002) (quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000) ). The Magistrate Judge considered this evidence in the interest of a thorough analysis. (Dkt. No. 216 at 1116 n. 26.) As explained below, the Court has also considered this late-filed declaration because it was briefed for the Magistrate Judge. The Court finds that it does not meet the showing required by Schlup to demonstrate actual innocence.
In his opposition to dismiss the habeas petition, Petitioner relied on statements of Nina Rhodes–Hughes, but Petitioner did not provide a declaration from Ms. Rhodes–Hughes and rather relied on an interview from Professor Phil Melanson's book, Shadow Play. (Dkt. No. 195 at 31.)
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.
C. Pruszynski Tape Recording
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, it also addresses the merits of Mr. Van Praag's analysis. The Report concludes that this evidence does not meet the showing required by Schlup for actual innocence. The Court agrees.
In 1993, Rose Lynn Mangan, an investigator for Petitioner, learned that almost all law enforcement records regarding Senator Kennedy's assassination had been released in 1988 to the public as part of the California State Archives. (Dkt. No. 1 at 200 ¶ 76.) Petitioner argues that the initial date of its availability for the tape is irrelevant because it was the invention of a sophisticated computer based program that brought new significance to the evidence in 2005. (Dkt. No. 218 at 4–5.) The Report does not ignore the technological advances that have led to new analysis of the tape recording. Rather, the Report notes that the habeas petition was filed in 2000, before the discovery of this technology. Thus the Report concludes that the recording could not have been a factual predicate to any claim contained in either his state or federal habeas petition. (Dkt. No. 216 at 1098–99.)
According to Petitioner, Mr. Van Praag's analysis proves that a second gunman was present. Mr. Van Praag opines that more than thirteen shot sounds can be identified on the tape recording. (Dkt. No. 180–1 at 44 ¶ 6(f).) Additionally, Mr. Van Praag concludes that there were two instances on the tape recording where two shots were fired very closely in time. According to Mr. Van Praag, it is unlikely that Petitioner's inexpensive revolver could have fired this rapidly. (Dkt. No. 180–1 at 44 ¶ 6(f).) Finally, Mr. Van Praag detected frequency anomalies suggesting that more than one gun was used. (Dkt. No. 180–1 at 47 ¶ 6(i).) Petitioner relies heavily on these findings, but Mr. Van Praag's findings have not been universally adopted.
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, or a .22 caliber shot, the type of gun carried by Petitioner. (Dkt. No. 185 ¶ 24, App. B at 280–82.) Mr. Harrison's conclusions are consistent with and corroborate eyewitness testimony. Petitioner faults Mr. Harrison for bias and for drawing conclusions without knowing the exact positioning of Mr. Pruszynski's microphone. (Dkt. Nos. 180 at 18–19, 218 at 4–5.) Similarly, Respondent faults Mr. Van Praag for making assumptions as to when Petitioner's hand was pinned to the table as well as where the microphone was located. (Dkt. No. 184 at 2–3.) The Court need not resolve these discrepancies because it finds that Mr. Van Praag's analysis cannot exonerate Petitioner.
In his declaration, Mr. Van Praag conducted field testing with a .22 caliber Harrington & Richardson 922, assuming it was the “make/model gun owned at the time by a security guard who confirmed to police that he had been armed and had been standing immediately behind and toward the right of Senator Kennedy at the moment the shooting occurred.” (Dkt. No. 180–1 at 46 ¶ 6(h)). In fact, as Respondent points out, this security guard actually carried a .38 caliber gun with him at the time of the shooting. (Dkt. No. 184 at 3 n. 3.) As such, Mr. Harrison assessed whether the unaccounted-for impulses on the tape recording matched either a .38 caliber gun or a .22 caliber gun.
Respondent lodged a copy of Mr. Harrison's analysis of the acoustics evidence from Appendix B of Mel Ayton's book, The Forgotten Terrorist: Sirhan Sirhan and the Assassination of Robert F. Kennedy (Potomac Books, 2007). (See Dkt. No. 185 ¶ 24.) The Court considers “all the evidence, old and new, incriminating and exculpatory, admissible at trial or not.” Lee, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) ).
Aside from Ms. Rhodes–Hughes's declaration, eyewitness statements do not identify more than eight shots. For example, Vincent Di Pierro testified that there were “approximately seven or eight, possibly eight” shots, but he could not say conclusively. (Dkt. No. 153–2 at 30.) Before the grand jury, Mr. Uecker testified that he heard possibly six or seven shots altogether. (Dkt. No. 153–2 at 37–38.)
Additionally, eyewitness statements vary in terms of the number of shots that were fired before bystanders began to subdue Petitioner. According to Jesse Unruh, it could have been four shots, a pause, and then four more shots. (Dkt. No. 184 at 6; see 12 RT at 3273.) Mr. Burns heard a “string” of shots and saw the Senator “falling and spinning” before Petitioner was grabbed. (Dkt. No. 184 at 6; see 12RT at 3399, 3402.) William Barry and Rafer Johnson testified that Petitioner fired all his shots before they grabbed him. (Dkt. No. 184 at 6; see 12 RT at 3452, 3474.) Ms. Urso heard at least three shots before there was chaos and a scuffle between Petitioner and a group of men. (Dkt. 180–1 at 8, 27.) Mr. Minasian heard two shots before he and Mr. Uecker grabbed Petitioner. (Dkt. 180–1 at 24–27.) A third shot was fired two or three seconds after the second shot. (Dkt. 180–1 at 24–27.) Mr. Patrusky did not specify the number of shots before Petitioner was grabbed and could not tell the exact number of shots fired thereafter. (Dkt. 180–1 at 29–30.) Mr. Uecker testified before the grand jury that he grabbed Petitioner by the third shot and testified at trial that he must have grabbed him by the second or third shot. (Dkt. No. 180–1 at 33–34.)
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. (See Dkt. No. 180–1 at 5–36; see also Dkt. No. 153–2 at 29–41.) As the Report discusses, Petitioner himself undermined the second shooter theory at his 1985 parole hearing when he stated, “If anybody else was involved, wouldn't I help myself after all these years, by telling authorities who else was in on it?” (Dkt. No. 216 at 1118 n. 28.) In light of the overwhelming evidence of guilt, Mr. Van Praag's expert opinion is not sufficient to show actual innocence or to undermine the reliability of evidence so as to make a showing of actual innocence. See, e.g., Cooper v. Brown, 510 F.3d 870, 885 (9th Cir.2007) (rejecting actual innocence claim in light of overwhelming evidence of guilt). Accordingly, Petitioner's objection is without merit. The Magistrate Judge properly considered the acoustics evidence.
In his objections, Petitioner points to a 1992 affidavit from Evan Phillip Freed, (Dkt. No. 153 at 40), and a 1987 interview with Booker Griffin to support the second shooter theory, (Dkt. No. 153 at 40); yet their accounts are not consistent with those of nearly every witness who was in the kitchen pantry. Contemporaneous statements from eyewitnesses do not support the second shooter theory. For example, Mr. Romero stated that he saw Petitioner “jumping up” and “reaching over” to the Senator. (Dkt. No. 180–1 at 11.) After Senator Kennedy was shot, Mr. Romero tried to help him straighten up, but he “felt something like burning, ... Powder burns.” (Dkt. No. 180–1 at 11.) He also stated to police that he saw “a small gun.” (Dkt. No. 180–1 at 11.) Further, as the Report concludes, Mr. Griffin's statement inculpates Petitioner. Though Mr. Griffin referred to a second gunman, he identifies “[an]other person, the taller person as the one ... that had shot Paul Schrade,” while Petitioner shot Senator Kennedy. Transcript of Interview of Booker Griffin, Exhibits to Request to the Los Angeles County Grand Jury, Section 33 (June 5, 1987), available at https://www.maryferrell.org/mffweb/archive/viewer/showDoc.do? docId=99873&relPageId=44.
Petitioner did not oppose the use of his statement or provide context for it in his objections to the Report.
D. Findings of Fact from the California Supreme Court
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) :
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Here, Petitioner fails to meet his burden.
First, Petitioner objects to statements regarding his activity with the Rosicrucian Order. The Report states that “[Petitioner] 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.” (Dkt. No. 218 at 25; accord Dkt. No. 216 at 1105.) Petitioner argues that while he did look into the mirror following ritual instructions from the Order, this exercise was for the purpose of looking for his own aura. (Dkt. No. 218 at 25.) Second, Petitioner objects to the use of a conversation between Petitioner and Jesse Unruh. (Dkt. No. 218 at 25; see Dkt. No. 216 at 1103.) According to Petitioner, these statements lack a verifying source or documentary authority. Third, Petitioner takes issue with the Report's statement that Petitioner was “in possession of newspaper clippings about Senator Kennedy when he was apprehended in the act of shooting him.” (Dkt. No. 218 at 28; accord Dkt. No. 216 at 1117.) Instead, Petitioner argues that he was in possession of a newspaper, which undoubtedly would contain an article about Senator Kennedy. Petitioner implies that he did not purposefully possess articles about the Senator. (Dkt. No. 218 at 28.)
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.
E. Ballistics Evidence
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:
1. The prosecution had its own analyst DeWayne Wolfer introduce the Kennedy neck bullet (Ex. 47);
2. Conflicted defense counsel stipulated his acceptance of the State's ballistics evidence without conducting any examination of his own; and
3. The Medical Examiner, who actually removed the bullet during his autopsy, incredibly was not asked either by the prosecution or the defense to identify the bullet he removed and marked for identification.
(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. (Dkt. No. 135 at 46.) The panel was unable to confirm that three bullets were fired from Petitioner's gun due to “barrel fouling” and a potential loss of fine detail in the intervening years; the commission did find, however, that the bullets were consistent with having been fired from the same gun. (Dkt. No. 181–1 at 60–61.) The panel concluded that “[t]here [wa]s no substantive or demonstrable evidence to indicate that more than one gun was used to fire any of the bullets examined.” (Dkt. No. 181–1 at 60.) Accordingly, the Court does not find merit in Petitioner's objections pertaining to his substitution theory.
In 1975, Superior Court Judge Robert A. Wenke appointed a panel of seven experts to review Officer Wolfer's conclusions. The seven experts included: (1) Stanton O. Berg, Independent Examiner; (2) Alfred A. Biasotti, California Department of Justice Laboratory; (3) Lowell W. Bradford, Forensic Scientist; (4) Cortland Cunningham, FBI Laboratory; (5) Patrick V. Garland, Tidewater Regional Laboratory; (6) Charles V. Morton, Forensic Scientist; and (7) Ralph F. Turner, Forensic Scientist. (Dkt. No. 135 at 46.)
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.
In another objection, Petitioner faults the Report for misrepresenting evidence; yet Petitioner is quoting an earlier version of the Report that has since been amended. In an earlier version of the Report, the Magistrate Judge stated that “when [Petitioner] was arrested, Petitioner had two caliber Mini–Mag bullets on his person.” (Dkt. No. 218 at 27; accord Dkt. No. 199 at 39.) The Report now reads that “when he was arrested, [P]etitioner had two .22 caliber bullets on his person.” (Dkt. No. 216 at 1112.) As a result, this objection is no longer relevant.
F. Hypnotic Programming
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.
1. Actual Innocence Standard
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.
The meaning of actual innocence as formulated ... does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.
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.
2. Hypno–Programming Evidence
Having reviewed Petitioner's evidence of mind control and hypno-programming and considered it in conjunction with the other evidence submitted with the habeas petition, the Court agrees that Petitioner has failed to demonstrate actual innocence in accordance with Schlup.
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. (Dkt. No. 207 at 42.)
According to Professor Scheflin, hypnosis via telephone was possible so long as the subject was given the proper conditioning. (Dkt. No. 180–2 at 22.) Other experts in the field dispute this. (See Dkt. Nos. 180–2 at 4:23–25, 5:15–16, 22:4–7; 180–3 at 19:25–26; 216 at 1119.)
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 serve as sufficient evidence of hypnotic programming and coercive persuasion to demonstrate actual innocence. (Dkt. No. 180–3 at 22.)
For example,
Petitioner recalled suggestions given to him by the strange man with the turned down moustache, who told him that government officials needed to be killed. The Petitioner also specifically recalled being given suggestions by an anonymous party over his short wave set that he wrote down in his spiral notebooks as suggested while in an hypnotic state and while engaging in an automatic writing.
(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.)
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 Scheflin concludes that “[t]he idea of a hypnotically programmed agent may be ‘fantastic,’ as the Respondents claim, but it is not untrue.” (Dkt. No. 180–2 at 30.) While Professor Scheflin has an extensive background on the subject, he offers little direct application of his research to Petitioner's case. The only part of Professor Scheflin's opinion that pertains directly to Petitioner is derived from the opinions of Dr. Simson–Kallas, a psychologist who had the opportunity to spend considerable time with Petitioner. (Dkt. No. 180–2 at 28.)
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.” (Dkt. No. 180–2 at 29.) Petitioner argues that Dr. Simson–Kallas's opinions should not be dismissed because they were in fact formed “in a time frame that was ‘contemporaneous' with the crime and found no medical evidence that [P]etitioner was schizophrenic.” (Dkt. No. 218 at 39.)
Dr. Simson–Kallas told Professor Scheflin that he was curious about Petitioner because he was “unable to remember details of the crime, unlike most killers he interviewed,” and his description of the events appeared artificial, as if he were “ ‘reciting from a book.’ ” (Dkt. No. 180–2 at 29.)
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. Accordingly, the Court has exercised its discretion to disregard this untimely evidence. See Howell, 231 F.3d at 623 (holding that the district court did not abuse its discretion when it disregarded supplemental evidence because the petitioner did not present facts to the magistrate judge or adequately explain the deficiency).
Petitioner only briefed these studies for the Magistrate Judge in his objections to the Report and Recommendation. (Dkt. No. 207 at 44.) One study aired in October 2011, and the other aired in October 2012. (Dkt. No. 218 at 44–45.) Petitioner's objections to the Magistrate Judge's Report and Recommendation were filed on April 3, 2013. (See Dkt. No. 207.) Petitioner does not explain the untimely introduction of this evidence. Accordingly, the Court concludes that Petitioner failed to exercise due diligence.
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 and Dr. Brown, finding that Petitioner is not a paranoid schizophrenic. Yet Dr. Pollack did not agree with their other findings, testifying that he “found no evidence of any altered state of consciousness or dissociate state, and various matters indicated to the contrary.” Sirhan, 7 Cal.3d at 725, 102 Cal.Rptr. 385, 497 P.2d 1121. Finally, neither Dr. Brown nor Petitioner addresses evidence from defense investigator Michael McCowan suggesting that Petitioner was not in an amnesiac state. Petitioner's evidence is far from conclusive on the issues of hypno-programming and coercive persuasion.
The California Supreme Court relied on the trial opinion of Dr. Pollack when considering whether there was substantial proof before the jury to show that Petitioner had the capacity to form intent. Dr. Pollack “examined [the Petitioner] on eight occasions.” Sirhan, 7 Cal.3d at 728, 102 Cal.Rptr. 385, 497 P.2d 1121. He also “reviewed extensive materials and interviewed members of defendant's family, [and] testified that although defendant was mentally ill, defendant did not have diminished capacity to harbor malice aforethought or to maturely and meaningfully reflect upon the gravity of his contemplated act.”Id.
Dr. Pollack noted that the
testimony of eyewitnesses showed defendant was aware of the significance of questions asked him and the tape recordings of his conversations at the police station indicated “a great deal of reasoning ability.” There was no substantial impairment of his attention (i.e., ability to attend to his environment in a meaningful manner), perception (i.e., ability to perceive objects in a meaningful manner, using past experiences), understanding (i.e., ability not simply to know but to appreciate “in a fuller sense”), ability to associate ideas logically, and freedom of choice. His emotions were “not that disturbed.” He was becoming more irritable and explosive but there was no substantial evidence that “this was an impulsive explosion.” His foresight (i.e., his ability to look forward and plan) appeared to be reasonably intact, and the same was true regarding his memory.
Id. at 725, 102 Cal.Rptr. 385, 497 P.2d 1121.
Petitioner provided Defense Investigator Michael McCowan with very detailed handwritten notes about the events. For example, Petitioner wrote about his visit to the shooting range, in which he identifies witnesses who later appeared before the grand jury. (Dkt. No. 162–5.) Petitioner also drew the layout of the Ambassador Hotel and wrote notes identifying individuals with whom he spoke or whom he saw prior to the shooting. (Dkt. Nos. 162, 162–4, 162–6.) Further, in a conversation with the investigator, Petitioner stated he made eye contact with Senator Kennedy. When asked why Petitioner did not shoot Senator Kennedy “between the eyes,” Petitioner responded “[b]ecause that son of a bitch turned his head at the last second.” (Dkt. No. 174 at 15; accord Dkt. No. 185 ¶ 25.)
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.” (Dkt. No. 218 at 40.) The Court does not find this distinction significant and accordingly finds the holding of Griffin to be binding precedent.
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.
V. REQUEST FOR EVIDENTIARY HEARING
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:
If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant can show that
(A) the claim relies on
(i) a new rule of constitutional law ...; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
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. Additionally, the conditions required for an evidentiary hearing are not met for the ballistics evidence. This evidence has already been considered by courts, as well as by a commission of experts. The commission was precluded from making a conclusive determination in 1975 because of “barrel fouling,” “impact damage and distortion,” and a “possible loss of fine detail over the intervening years.” (Dkt. No. 181–1 at 60–61.) Petitioner does not indicate how a renewed study of the evidence will overcome these same challenges. Further, in 1975, the commission did not make a recommendation for additional testing of the physical evidence. (Dkt. No. 181–1 at 62.) Petitioner thus “has not established that an evidentiary hearing would produce evidence more reliable or more probative” than the evidence currently before the Court. Griffin, 350 F.3d at 966.
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 hypno-programming. 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.
VI. CONCLUSION
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.
IT IS SO ORDERED.
SIRHAN BISHARA SIRHAN, Petitioner,
v.
P.D. BRAZELTON, Warden, Respondent.
The Clerk is directed to substitute P.D. Brazelton, the current warden of the prison where petitioner is incarcerated, as the respondent in this case. See Fed.R.Civ.P. 25(d).
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
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. Petitioner was charged with assassinating Senator Kennedy. The evidence of petitioner's guilt was overwhelming. Not only did numerous witnesses see petitioner shoot Senator Kennedy, but petitioner—who had written “RFK Must Die” and “Robert F. Kennedy must be assassinated” repeatedly in his diary—confessed to shooting Senator Kennedy “with malice aforethought.” Petitioner was convicted of first degree murder and five counts of assault with a deadly weapon. He received a death sentence.
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. Not surprisingly, respondent moved to dismiss the petition on the ground that it is barred by the statute of limitation. Petitioner opposes the motion, arguing, among other things, that he is entitled to an exception to the statute of limitation because he is actually innocent. For the following reasons, respondent's motion should be granted, and the petition should be dismissed as untimely.
The petition alleges that (1) the prosecution withheld exculpatory evidence, destroyed evidence, and presented false evidence; (2) the evidence is insufficient to support petitioner's conviction; and (3) petitioner's trial counsel provided ineffective assistance. [See Petition at 1–5, 9–181].
Procedural Background
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 April 30, 1997, the Superior Court denied the petition on the merits, noting that petitioner had offered to plead guilty to first degree murder in exchange for a sentence of life in prison, and that at trial, petitioner had admitted shooting Senator Kennedy. [LD 9].
A copy of this petition has not been made available to the Court. [See Docket No. (“DN”) 179 (Response and Declaration of Jaime L. Fuster) ]. Nevertheless, there is no dispute as to the date on which it was filed. [See LD 9 (the Superior Court's order denying the petition, stating that the petition was filed April 21, 1997); DN 106 (Motion to Dismiss) at 2; DN 135 (Opposition to Motion to Dismiss) at 5].
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.
Because petitioner was represented by counsel at the time he filed this and all relevant state petitions, the “mailbox rule” does not apply. See Houston v. Lack, 487 U.S. 266, 275–276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner's pleading is deemed filed at the moment it is delivered to prison authorities for mailing).
Discussion
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). Where, as here, a conviction became final before the enactment of the AEDPA, a petitioner has until April 24, 1997 within which to file a federal petition. See Patterson v. Stewart, 251 F.3d 1243, 1245–1246 (9th Cir.), cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001) ; Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) ; Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) & 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999).
It provides:
A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
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. A. Statutory tolling
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.
The limitation period would have expired on May 4, 1997, but that date was a Sunday, so petitioner had until the following day to file his petition. See Fed.R.Civ.P. 6(a)(1)(C).
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). As a result, unless petitioner is entitled to equitable tolling or delayed accrual under 28 U.S.C. § 2244(d)(1)(D), the limitation period expired on May 5, 1997.
Furthermore, petitioner cannot claim to have relied on precedent holding that an untimely state habeas petition is “properly filed” for purposes of tolling the limitation period. Although the Ninth Circuit so held in Dictado v. Ducharme, 244 F.3d 724, 727–728 (9th Cir.2001), abrogated by Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), Dictado was not decided until years after petitioner filed his state petitions (and also after he filed this federal petition). Thus, he is not entitled to equitable tolling based upon a misplaced reliance on then-binding federal law. Cf. Nedds v. Calderon, 678 F.3d 777, 781–782 (9th Cir.2012) (explaining that a petitioner who relies upon then-binding circuit precedent in making a tactical decision to delay filing a federal petition is entitled to equitable tolling); Harris v. Carter, 515 F.3d 1051, 1055–1056 (9th Cir.) (holding that a petitioner's reliance on Dictado justified equitable tolling), cert. denied, 555 U.S. 967, 129 S.Ct. 397, 172 L.Ed.2d 323 (2008).
B. Equitable tolling
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, 604 F.3d 1047, 1058 (9th Cir.) (finding that equitable tolling was not warranted where the petitioner's counsel failed to perfect a timely appeal, failed to inform the petitioner of the deadline for filing a state habeas petition, and failed to provide the petitioner with his case files in a timely manner because attorney negligence did not amount to “extraordinary circumstances” and did not prevent the petitioner from timely filing a federal petition), cert. denied, 562 U.S. 969, 131 S.Ct. 474, 178 L.Ed.2d 301 (2010) ; Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (“To apply the doctrine in extraordinary circumstances necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances stood in his way suggests that an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on the petitioner's part ....”) (internal quotation marks and brackets omitted), cert. denied, 558 U.S. 897, 130 S.Ct. 244, 175 L.Ed.2d 167 (2009) ; Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (holding that equitable tolling was not warranted where the petitioner's retained attorney negligently failed to file a habeas petition within the limitation period), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002) ; but see Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.2003) (holding that equitable tolling was warranted where the petitioner's attorney failed to prepare and file a petition even though he was hired a year in advance of the deadline and the petitioner and his mother contacted the attorney “numerous times, by telephone and in writing, seeking action, but these efforts proved fruitless. Furthermore, despite a request that he return [the petitioner's] file, [the attorney] retained it for the duration of the limitations period and more than two months beyond.”).
C. “Delayed accrual” pursuant to 28 U.S.C. § 2244(d)(1)(D)
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).
1. The Pruszynski recording
A reporter named Stanislaw Pruszynski, who was at the Ambassador Hotel on the night Senator Kennedy was shot, inadvertently left his tape recorder on and recorded the shooting. Petitioner alleges that Pruszynski's recording is a “key piece” of evidence that “demonstrates that thirteen shots were fired on the night Senator Kennedy was killed.” [DN 153 at 4–5]. According to petitioner, the recording was suppressed by government authorities, was not discovered by petitioner until 2001, and was not analyzed by petitioner until 2005 because the technology required to perform the analysis was not available until then. [DN 153 at 5–6].
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).
2. The factual predicate for petitioner's Brady and ineffective assistance of counsel claims
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 time of trial. For example, petitioner relies heavily on Thomas Noguchi's 1968 autopsy report [see Petition at 9–16, 25–30, 113–118], but as petitioner concedes, that report was provided to him during the trial. [See Petition at 114; DN 180 (Petitioner's Reply Brief on Actual Innocence) at 49; DN 153, Ex. E (Declaration of Robert Kaiser) ]. At the very latest, petitioner possessed the 1968 autopsy report in 1975 because it was attached as an exhibit to the habeas petition filed in the California Supreme Court. [LD 13, Ex. B (autopsy report) ]. Petitioner also relies on the testimony of DeWayne Wolfer during the special proceedings. Petitioner obviously knew about this testimony at the time it was offered in 1975 because petitioner and his counsel initiated the reinvestigation and petitioner's counsel was present during the testimony. [See LD 27; LD 6, Ex. B]. Further, the 1969 Special Unit Senator Report (“SUS”) upon which petitioner relies [see Petition at 37–38, 60] was readily available in 1988, when it was released to the public. [LD 6, Exs. C (John Kendall, “State Releases Records From R.F.K. Slaying,” Los Angeles Times, April 20, 1988) & J (LAPD Final Report, Special Unit Senator) ]. To the extent that petitioner's claims are based on testimony from his trial or alleged irregularities in exhibits presented at his trial [see Petition at 9–25], petitioner obviously knew about these “facts” at the time the testimony was given or the exhibits were offered, in 1969. His reliance on evidence of bullet holes in the door jamb near the crime scene [see Petition at 123–128] is similarly unavailing because he attached a photograph of the door frame bullet holes as an exhibit to his 1975 habeas petition filed in the California Supreme Court. [LD 13, Ex. E (photograph) ]. Thus, petitioner knew, or reasonably could have known, all of the facts he says he needed to pursue his claims as early as 1968, or at the latest, 1988.
Special Unit Senator was a task force set up by the Los Angeles Police Department to investigate the shooting of Senator Kennedy. [See LD 27 at 26; LD 6, Ex. J].
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.
D. Actual innocence
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 statute of limitation. McQuiggin v. Perkins, ––– U.S. ––––, 133 S.Ct. 1924, 1933–1934, 185 L.Ed.2d 1019 (2013). This exception, however, applies to a “severely confined category” of cases—those in which a petitioner can demonstrate “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Perkins, 133 S.Ct. at 1933 & 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ); see also Lee v. Lampert, 653 F.3d 929, 937 (9th Cir.2011) (en banc) (“where an otherwise time-barred habeas petitioner demonstrates that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner may pass through the Schlup gateway and have his constitutional claims heard on the merits”). In order to fit within the exception, a petitioner is required “to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851 ; see Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002) (same). The habeas court then “consider[s] all the evidence, old and new, incriminating and exculpatory,” admissible at trial or not, and, “[o]n this complete record, the court makes a probabilistic determination about what reasonable, properly instructed jurors would do.” Lee, 653 F.3d at 938 (internal quotation marks omitted) (quoting House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) and Carriger v. Stewart, 132 F.3d 463, 477–478 (9th Cir.1997) (en banc)). Even where post-conviction evidence merely “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)).
“New” evidence does not necessarily mean newly discovered evidence. Rather, it also includes evidence which was available but was not presented at trial. Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003), cert. denied, 541 U.S. 998, 124 S.Ct. 2039, 158 L.Ed.2d 510 (2004).
Both parties have submitted exhibits that arguably do not satisfy the rules of evidence, including, for example, interviews referenced in books or copies of newspaper articles containing hearsay. Schlup, however, makes clear that this Court “is not bound by the rules of admissibility that would govern at trial.” Schlup, 513 U.S. at 327–328, 115 S.Ct. 851 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970)). Further, neither party has objected to the Court considering any of the lodged documents or exhibits submitted by the other. Accordingly, the Court considers all of the documents and exhibits presented by the parties regardless of their admissibility.
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 ).
1. Evidence presented at trial
In order to provide context for evaluating petitioner's new evidence, a brief summary of the evidence presented at trial is necessary.
After independent review of the record, the Court adopts the California Supreme Court's factual summary as a fair and accurate summary of the evidence presented at trial. See Sirhan, 7 Cal.3d at 717–726, 102 Cal.Rptr. 385, 497 P.2d 1121. The factual summary is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Slovik v. Yates, 556 F.3d 747, 749 n. 1 (9th Cir.2009) ; Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir.2009).
At the trial it was undisputed that defendant fired the shot that killed Senator Kennedy. The evidence also established conclusively that he shot the victims of the assault counts. The principal defense relied upon by defendant was that of diminished capacity. Extensive evidence was presented of the circumstances surrounding the shootings and of defendant's mental condition, which evidence may be summarized as follows:
About 8:30 p.m. on June 2, 1968, two days before defendant shot Senator Kennedy, the senator made a speech in the Coconut Grove at the Ambassador Hotel in Los Angeles, following which he delivered a second speech outside the hotel. Defendant was seen at the hotel about 8:45 that night by an acquaintance. A half hour or less after the senator's second speech a hostess saw a man who looked like defendant in the kitchen near the Coconut Grove.
During the day on June 4, 1968, defendant practiced firing at a gun range for several hours and had also practiced shooting at ranges on several prior occasions. On June 4 he engaged in rapid fire with the .22 revolver he used a few hours later to kill Senator Kennedy. The revolver had been obtained by defendant in February 1968 when his brother Munir paid a fellow employee for it.
A person who talked with defendant at the gun range on June 4 testified that defendant stated he was “going to go on a hunting trip with his gun,” that he told defendant it was not permissible to use pistols for hunting “because of the accuracy,” and that defendant said, “Well, I don't know about that. It could kill a dog.”
About 10 or 11 p.m. on June 4, 1968, a secretary whose duties included seeing that unauthorized persons were not near the Embassy Ballroom of the Ambassador Hotel, saw defendant near that room and asked him who he was, and he turned and walked toward the doors leading into the ballroom.
Shortly before midnight on the same day defendant asked hotel employees if Senator Kennedy was going to come through the pantry, and they told him that they did not know. One of the employees observed defendant for about a half hour in the pantry and noticed nothing unusual about his manner or activity.
About midnight on June 4, Senator Kennedy made a speech in the Embassy Ballroom announcing his victory as a Democratic candidate for president in the California primary. Following the speech he and his entourage proceeded toward the hotel's Colonial Room, which was then being used as a press room. En route the senator stopped in the pantry to shake hands with the kitchen staff. Suddenly defendant darted toward the senator, pulled out a revolver, and fired several shots. The senator and a man adjacent to him, Paul Schrade, fell. Pandemonium ensued.
A hotel employee grabbed defendant around the wrist of the hand holding the gun, but defendant, who was still able to
move that hand, continued shooting. Irwin Stroll, William Weisel, Elizabeth Evans and Ira Goldstein were injured by the gunfire. Several persons joined in the struggle and succeeded in restraining defendant, and one took the gun from him. When asked, “Why did you do it?,” defendant replied something to the effect “I can explain.”
The senator was taken to a hospital where he underwent surgery. He subsequently died on June 6, 1968. According to the autopsy surgeon, the cause of death was a gunshot wound “to the right mastoid” that penetrated the brain; the senator also received two additional gunshot wounds, one in an armpit and another slightly lower. Expert testimony indicated that the gun was an inch and a half or less from the senator's head when the fatal bullet was fired and in contact with him or within a few inches when the other wounds were inflicted.
Around the time that the senator was taken to the hospital the police arrived at the hotel and took custody of defendant. Two officers, defendant and Jesse Unruh got into a car and drove to the police station. En route the officers advised defendant of his constitutional rights. Subsequently Unruh asked defendant “Why did you shoot him?” and defendant replied “You think I am crazy? You think I will tell you so you can use it as evidence against me?” Unruh also heard defendant say “I did it for my country.” Unruh believed that defendant was not intoxicated, and police officers who were with defendant at the time of his arrest or shortly thereafter reached the same conclusion.
About 12:45 a.m., minutes after defendant arrived at the police station, he was seen by Officer Jordan. The officer estimated that he was with defendant between four and five hours on this occasion. Jordan stated that defendant never appeared irrational and that in the officer's many years on the force defendant was “one of the most alert and intelligent people I have ever attempted to interrogate.” Jordan initially identified himself and asked defendant his name but received no response. The officer then advised defendant of his constitutional rights, and defendant, after asking a few questions, indicated he wished to remain silent. Defendant, Jordan, and other officers subsequently discussed various matters other than the case. Tapes of the conversations were played to the jury.
The police found various items on defendant's person, including a newspaper article which in part noted that in a recent speech Senator Kennedy “favored aid to Israel ‘with arms if necessary’ to meet the threat of the Soviets.”
A trash collector testified that on one occasion he told defendant he was going to vote for Kennedy in the primary election and that defendant replied “What do you want to vote for that son-of-a-b for? Because I'm planning on shooting him.” On cross-examination the witness admitted that following the assassination when asked if he would testify he stated he “would not want to take the oath because (he) hated Sirhan so much that (he) would do anything to see him convicted.”
The prosecution also introduced documents found by the police at defendant's home. The documents contain statements in defendant's handwriting regarding various matters including, inter alia, killing Senator Kennedy.
Later in the opinion, the California Supreme Court summarized the contents of these documents as follows:
For example, one of the pages introduced by the defense (which had been excluded by the trial court when the prosecution attempted to introduce it) stated in part “I advocate the overthrow of the current president to the fucken (sic) United States of America. I have no absolute plans yet—but soon will compose some. I am poor—This country's propaganda says that she is the best country in the world—I have not experienced this yet.... I firmly support the communist cause and its people—wether (sic) Russian, Chinese, Albanian, Hungarian or whoever—Workers of the World unite, you have nothing to loose (sic) but your Chains and a world to win.” Other pages introduced by the defense stated, “2 June 67 ... A Declaration of War Against America ... When in the course of human events, it has become necessary for me to equalize and seek revenge for all the inhuman treatment committed against me by the American people the manifestation of this Declaration will be executed by its purporter (s)(sic) as soon as he is able to command ... $2000 ... and to acquire some firearms.... The victims of the party in favor of this declaration will be or are now—the president, vice etc.—down the ladder. The time will be chosen by the author at the convenience of the accused ... the author expresses his wishes very bluntly that he wants to be recorded by historians as the man who triggered off the last war ... Sirhan must begin to work on uphold (sic) solving the problems and difficulties of assassinating the 36th president of the glorious United States.”
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.
Defendant, testifying in his own behalf, admitted having shot Senator Kennedy, but claimed that he did not remember having done so. He conceded, however, that he stated “I killed Robert Kennedy wilfully, premeditatively, with twenty years of malice aforethought.” ... Defendant further testified that he ‘must have,’ or had no doubt that he, shot the victims of the assault counts.
Defendant's account of what transpired on June 4 and 5, was as follows: He intended to go to the races on June 4, but did not like the entries and decided to go target shooting instead. He took his revolver to a gun range, stopping en route to buy ammunition, and stayed at the range until about 5 p.m. He practiced shooting there but was not the person who engaged in rapid fire. He had gone to gun ranges on several prior occasions and practiced with the gun because he “liked to” and “was interested ... in ... target practicing perfection.” He first developed an interest in guns as a member of a high school cadet corps. He did not recall making a statement about killing a dog. He might have said “it (apparently his gun) is strong enough to kill an animal,” but he did not have in mind killing Senator Kennedy. After leaving the range, he stopped to eat and subsequently saw an article concerning a march for Israel, which made him angry. He drove to the area where the march was scheduled but found it was not on that date. On the drive he passed Thomas Kuchel's headquarters and went in. There someone mentioned a “bigger party” at the Ambassador. The person did not mention whose party it was, and defendant did not know there was to be a Kennedy party that night. He went to the Ambassador, was mad at the Zionists, and started to drink. He bought two Tom Collins during about an hour. He does not recall how many drinks he had that
evening. After a while he felt high and returned to his car to go home but was afraid to drive because of his condition and decided to return to the hotel for coffee.
He did not recall picking up his gun but as a result of what subsequently transpired he realized he must have done so. Upon returning to the Ambassador, he found some coffee and talked with a girl. The next thing he remembered he was being choked.
He did not remember asking anyone “where Kennedy was going to come through” and did not know if he asked “what time (Kennedy) would be there.” He did not remember saying “I did it for my country” but “Jesse Unruh must have been correct in saying that (defendant made the statement).” He recalled getting into the police car, being advised of his constitutional rights, and various other matters following his arrest.
Defendant also admitted having gone to the Ambassador Hotel on June 2 where he heard Senator Kennedy speak but denied having been in the kitchen that night. He stated that the senator “looked like a saint” but that defendant still had in the back of his mind a broadcast in which the senator committed himself to sending jet bombers to Israel.
Defendant denied having made the statement to the trash collector regarding killing Senator Kennedy.
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.
Defendant also described in detail his views regarding the Arab–Israel conflict and his hatred of the Zionists.
Additional evidence was introduced by the defense regarding the bombings in Old Jerusalem during the period defendant resided there, the various gruesome matters he saw during his childhood, and his poor living conditions in that city. Several defense witnesses also testified that they saw defendant with a drink in his hand on the night of June 4, 1968.
In support of his defense of diminished capacity defendant called to the stand two psychiatrists Eric Marcus, M.D. (a court-appointed psychiatrist) and Bernard Diamond, M.D.; two psychologists
who administered psychological tests to defendant (Drs. Orville Richardson and Martin Schorr) and four psychologists who evaluated the tests administered to defendant by Dr. Richardson and/or Dr. Schorr (Drs. Stephen Howard, William Crain, Georgene Seward, and George De Vos).
Doctors Marcus and Diamond testified that at the time of the alleged murder defendant was a paranoid schizophrenic, and Dr. Diamond further stated that defendant was then in a “dissociated state of restrictive consciousness as a ... consequence of (his) psychotic condition.” According to both psychiatrists, defendant lacked the capacity to maturely and meaningfully reflect upon the gravity of the contemplated act of murder and to comprehend his duty to govern his actions in accord with the duties imposed by law, and they explained the reasons for their conclusion. They further testified concerning the origin, development, and manifestations of the illness.
Doctors Richardson, Schorr, Crain, De Vos and Seward likewise testified that defendant was a paranoid schizophrenic, and, according to Dr. Schorr, defendant went into a dissociate state before the shooting. Doctors Richardson and Schorr also agreed with the psychiatrists that defendant lacked the capacity to maturely and meaningfully reflect upon the gravity of his contemplated act of murder and to harbor malice aforethought.
Dr. Howard concluded that defendant has “paranoid features” and is “a borderline psychotic person,” i.e., a person “who can go in and out of psychosis, depending on the ... relative minor stresses ... in daily life.”
In rebuttal the prosecution called to the stand Seymour Pollack, M.D., a Professor of Psychiatry and Law at the University of Southern California. Dr. Pollack interviewed defendant eight times, spending about 24 hours with him. The first such interview was on January 19, 1969. The doctor also observed defendant in the courtroom during preliminary proceedings that began June 28, 1968, and during the trial. In addition he interviewed members of defendant's family; reviewed the psychological tests given by Drs. Richardson and Schorr to defendant and numerous other matters such as the grand jury transcript and tapes of defendant's conversations after his apprehension; and attended a conference with other psychiatrists and psychologists concerning the case. The overall time Dr. Pollack spent on the case was close to 200 hours.
With respect to his diagnosis, Dr. Pollack testified: Defendant was not “clinically psychotic,” i.e., there were “no observable signs or symptoms to a degree and of a kind that would allow (the witness) as a psychiatrist to say that (defendant) was mentally ill as a psychotic person.” There was insufficient proof of schizophrenia.
On the other hand, according to Dr. Pollack, defendant is, and was at the time of the killing and for “some time before that,” mentally ill and emotionally disturbed, and his mental illness was substantial, i.e., of a degree and kind that is not present in most of the population.
Dr. Pollack concluded that defendant is a paranoid personality, which is not a psychosis but a form of mental illness in which there is an exaggeration of certain personality characteristics. Such a personality is more suspicious and sensitive than most people, “takes things more personally to a greater degree than the
average person,” and tends to collect grievances.
Dr. Pollack testified that defendant also is “a borderline schizophrenic,” i.e., “a person who has ... or shows some minimal evidence of peculiarity in his thinking, in his feeling ... but who doesn't have, who hasn't shown ... any clinical signs or symptoms of psychosis.” According to Dr. Pollack, there are indications that defendant has “a psychotic personality structure,” and a person with such a structure is not “held together as well” and becomes “more easily unglued than ordinary.”
* * * * * *
Dr. Pollack further testified that “I believe the assassination of Senator Robert Kennedy was triggered by political reasons with which (defendant) was highly emotionally charged; I believe that Sirhan focused on Senator Robert Kennedy as an individual who should die, not only because of the Kennedy promise to give Israel the jet bombers that would cause death to thousands of Arabs, in Sirhan's opinion, but also because Sirhan wanted the world to see ... how strongly our United States policy was in the pro-Israel-anti-Arab movement in ... spite of our Government's professed interest for the underdog, and world justice” and “Sirhan ... saw himself as a defender of the Arab cause and, as an individual who through this act would bring world attention to the Arab plight and also ... materialize his fantasy of success.”
He testified, “In my opinion when Sirhan shot Kennedy, Sirhan's mental capacity was not impaired to the extent of diminished capacity to maturely and meaningfully premeditate and deliberate and reflect upon the gravity of the contemplated act of shooting the Senator” and that Sirhan “did not have ... diminished mental capacity to harbor malice aforethought.” The doctor explained that he considered the following “functions” in reaching the foregoing conclusions: He found no evidence of any altered state of consciousness or dissociate state, and various matters indicated to the contrary. For example, testimony of eyewitnesses showed defendant was aware of the significance of questions asked him and the tape recordings of his conversations at the police station indicated “a great deal of reasoning ability.” There was no substantial impairment of his attention (i.e., ability to attend to his environment in a meaningful manner), perception (i.e., ability to perceive objects in a meaningful manner, using past experiences), understanding (i.e., ability not simply to know but to appreciate “in a fuller sense”), ability to associate ideas logically, and freedom of choice. His emotions were “not that disturbed.” He was becoming more irritable and explosive but there was no substantial evidence that “this was an impulsive explosion.” His foresight (i.e., his ability to look forward and plan) appeared to be reasonably intact, and the same was true regarding his memory.
* * * * * *
Dr. Pollack also testified that defendant believed it was “good” and “right” to kill Senator Kennedy and had that belief when he made the entries in his notebooks. Defense counsel then asked, “As a matter of fact, he felt it was his duty almost to do it, didn't he?”, and Dr. Pollack replied, “Almost, yes. As an Arab he felt that it was his duty, that he would be looked up to by the Arab world and that he would be considered a hero.” Dr. Pollack indicated that he did not consider defendant's belief that it was “right” and “good” to kill the senator a delusion and stated that “it's there that
I think a major difference exists between the other psychiatrists and myself.” He testified defendant gave no evidence of believing himself to be a person chosen by God to kill Kennedy whom he regarded as the devil—that such a belief would have been a delusion. Dr. Pollack further testified that defendant did not expect to be punished for his act because in his view Kennedy and others having the senator's views about the Arab–Israel conflict were murderers.
Sirhan, 7 Cal.3d at 717–726, 102 Cal.Rptr. 385, 497 P.2d 1121 (footnotes omitted).
2. “New evidence”
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].
Both the petition and portions of petitioner's briefs addressing the merits of his claims include numerous other allegations and citations to evidence relating to, among other things, the alleged existence of a second shooter and revelations of purported anomalies and inconsistencies in the prosecution's evidence. The Court's discussion is restricted to the evidence that petitioner's counsel has identified as supporting petitioner's claim that he falls within the actual innocence exception to the statute of limitation. Accordingly, petitioner's numerous other allegations are not addressed.
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.
The Pruszynski recording
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) ]. Van Praag's opinion is far from “conclusive” evidence of a second gunman because other experts analyzing the Pruszynski recording have reached contrary conclusions. [LD 17 (Mel Ayton, How the Discovery Channel Duped the American Public About the RFK Assassination Acoustics Debate, George Mason University's History New Network, November 20, 2007); LD 18 (Steve Barber, The Robert F. Kennedy Assassination: The Acoustics Evidence, George Mason University's History News Network, March 25, 2007); LD 23 (Philip Harrison: Summary Curriculum Vitae); LD 24 (analysis of the Pruszynski Tape by Acoustics Expert Philip Harrison, Appendix B to Mel Ayton, The Forgotten Terrorist: Sirhan Sirhan and the Assassination of Robert F. Kennedy (Potomac Books, 2007) ] ). In any event, as discussed in detail below, evidence that another firearm was discharged during the assassination is not sufficient to demonstrate that petitioner is innocent.
In particular, Phillip Harrison, a forensic audio examiner from the United Kingdom, analyzed the Pruszynski recording and concluded that no more than eight shots were fired. [LD 24]. Petitioner complains that Harrison's opinion is not reliable because Harrison did not know where in the room the Pruszynski microphone was located, and because he “appeared” to be working from a dubbed copy of one of Van Praag's master recordings. [DN 180 at 18]. Petitioner also attacks the reliability of another expert, Steve Barber, whose conclusion contradicted Van Praag's. The Court need not resolve petitioner's challenges, which are directed to the weight or credibility of expert opinions that contradict Van Praag's opinion. The existence of contradictory expert opinions is sufficient to preclude Van Praag's opinion from constituting “conclusive” proof of petitioner's theory.
Eyewitnesses to petitioner's position at the time of the shooting
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) ].
Evidence that petitioner was “in front” of Senator Kennedy
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 moved his arm between two of the gunshots) ].
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].
Evidence that petitioner's hand was pinned down after firing the first shots
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].
Evidence that petitioner was too far away from Senator Kennedy to inflict the fatal gunshot wound
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 hands with the last man, Uecker grabbed his hand and said, “Let's go now, Senator.” [RT 3097]. Uecker turned toward the right and immediately felt someone brush in front of him, positioning himself between Uecker and the steam table. [RT 3095, 3097]. Uecker heard what sounded like a firecracker, then heard a shot. Senator Kennedy began to “fall out of” Uecker's hand. At this point, Uecker saw petitioner right in front of him holding a gun. [RT 3097]. Uecker grabbed for the gun and ended up forcing petitioner down onto the steam table, but petitioner continued to shoot. [RT 3097–3098]. Because Uecker was near enough to be touching Senator Kennedy and petitioner passed so closely in front of Uecker that he brushed against him, Uecker's testimony actually undermines petitioner's contentions. From Uecker's testimony, the jury could have concluded that when petitioner stepped in front of Uecker, who was within arm's reach of Senator Kennedy, petitioner was close enough to have fired the fatal shot.
For the same reasons, petitioner's reliance on Martin Patrusky's F.B.I. statement is unfounded. Patrusky observed a man “pushing his way toward Senator Kennedy and Karl Uecker.... He pushed himself around to the right of Uecker. This man leaned around the left side of Uecker's body and extended his hand toward Senator Kennedy.... I immediately heard a sound like that of a firecracker.” [DN 180, Ex. A]. Patrusky's observations corroborate Uecker's testimony and place petitioner immediately next to Senator Kennedy.
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].
Contrary to his 1975 statement, Uecker did not testify to this, and his prior statements to police do not include a similar statement regarding the distance between petitioner's gun and Senator Kennedy. [See RT 3075–3133; September 11, 1968 Interview by F.B.I., found at maryferrell.org; June 5, 1968 Interview with LAPD, found at maryferrell.org]. Nevertheless, the Court assumes Uecker would testify that he never saw petitioner's gun get closer than 1.5 feet from Senator Kennedy.
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. [See RT 3081–3086, 3105–3106, 3118]. Moreover, the ballistic evidence presented at trial corroborated the extensive eyewitness testimony that petitioner shot Senator Kennedy. Expert testimony showed that the three bullets removed from the victims, including the bullet that struck Senator Kennedy's neck, were fired from petitioner's revolver, and that these bullets were .22 caliber Mini–Mag ammunition. [RT 4152–4153, 4165]. These bullets were the same type of ammunition bought by petitioner just days before the assassination. [RT 3762–3768, 3893–3897, 4070, 4076–4081, 5153]. In addition, when he was arrested, petitioner had two .22 caliber bullets on his person. [RT 3517–3519].
Among the factors identified as relevant to determining the weight of eyewitness testimony include: the opportunity of the witness to observe the alleged perpetrator and criminal act, and the stress, if any, to which the witness was subjected at the time of the observation. See CALJIC No. 2.92.
Petitioner disputes the accuracy of the ballistics evidence, and his allegations are discussed in detail below.
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.
Evidence about the angle of petitioner's gun
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.
Ballistics evidence
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 fired by petitioner's gun and concluded that they had been fired from the same gun. [RT 4128–4194]. Because petitioner's counsel stipulated to the authenticity of the bullet, Wolfer was never asked whether Exhibit 47 bore the “TN31” mark. [RT 4129, 4157–4160].
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]. Nevertheless, if petitioner could show that prosecution witnesses substituted bullets in order to obtain false testimony of a match between his gun and the bullets involved in the shooting, such evidence would undermine confidence in the jury's verdict of petitioner's guilt. For the following reasons, however, petitioner has not made such a showing.
This bullet shattered in Senator Kennedy's head and experts were unable to retrieve a sufficient portion of it to test. [RT 4525; LD 27 at 98; LD 6, Ex. N (Partial Transcript of Tomas Noguchi's Statements to Special Hearing Conducted by Supervisor Baxter Ward) at 86].
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” on the bullet, but not “31.” [LD 6, Ex. E]. The discrepancy is insufficient to show that petitioner's gun did not fire the fatal bullet, in part because Garland never indicated that the “31” was absent (perhaps because he simply was not asked to look for it).
TN and DW are the initials for Thomas Noguchi and DeWayne Wolfer, respectively.
Of course, as petitioner was a party to the 1975 reinvestigation into the ballistics, this “evidence” was known to him at that time, a quarter of a century before he presented it in this federal habeas corpus petition. [See LD 27].
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 introduced as Exhibit 55 had been fired from petitioner's revolver (Exhibit 6) and that Wolfer compared those test bullets with the victim bullets. [RT 4156–4160]. In addition, during the 1975 reinvestigation, Wolfer testified in detail about the erroneous serial number marked on the envelope for Exhibit 55. He explained that on June 5, 1968, he obtained the revolver taken from petitioner (serial number H–53725), loaded it with eight bullets of the identical ammunition type removed from the victims, fired all eight test rounds into a water tank, and recovered seven of them. On that day or the following day, Wolfer compared one of the test rounds to the victim bullets. [LD 27 at 60–61, 107, 127–128, 170–171, 175, 177, 183, 193, 195–196, 335, 339]. Petitioner's gun was taken to the Grand Jury on June 6, 1968, and Wolfer testified before the Grand Jury on June 7, 1968. [LD 27 at 128]. Wolfer placed four of the test bullets into a Grand Jury evidence envelope [LD 27 at 114, 129; LD 6, Ex. L (photograph of envelope) ], and took the remaining three bullets back to his office in case further testing was needed. Those three remaining bullets were entered into evidence at petitioner's trial (Exhibit 55). [LD 27 at 103–105, 113–114, 120–123, 128–132, 136–139]. Grand Jury Exhibit 5B was dated on June 7, 1968, and contained the correct serial number from petitioner's gun (H–53725). [LD 27 at 179, 184–185, 188–189; see LD 6, Ex. L (photograph of Exhibit 5B) ]. Exhibit 55 was not dated until the time of trial and contained the wrong serial number (H–18602). [LD 27 at 137–140, 185]. The error was discovered after the trial and the appeal concluded. [LD 27 at 122–125, 174–175].
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 same gun, but the panel explained that a conclusive match to petitioner's gun was impossible due to extrinsic factors, such as “barrel fouling” and “possible loss of fine detail over intervening years.” [LD 6, Ex. B].
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. Instead, the discrepancies that petitioner points out are equally likely to be the result of innocent mistakes or negligence, rather than a complex conspiracy involving numerous governmental officials and agencies.
As respondent points out, petitioner has been pursuing this claim since at least 1975. In 1975, petitioner sent a letter to Judge Wenke (who conducted the 1975 reinvestigation), alleging that the prosecution substituted false bullets in order to rig the ballistics evidence at trial. [LD 6, Ex. H (letter from petitioner to Judge Wenke) ]. Despite the fact that petitioner—who has been represented by counsel—has been pursuing this claim for more than 30 years, he has been unable to produce any evidence affirmatively proving his conspiracy allegations.
Petitioner's position requires the most sinister and convoluted reading of every piece of evidence. For example, petitioner contends that when Dr. Noguchi asked Robert Joling to hold onto an exhibit because “we might need it some day,” Noguchi must have “strongly suspected that a major cover-up was in progress and that its extent and dimensions were so serious that nothing short of his removal of a crucial item of evidence for safekeeping would allow the truth to someday emerge.” [Petition at 36].
Eyewitnesses who saw a second shooter
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]. Next, according to petitioner, Griffin said in a 1987 interview with author Philip Melanson that he was at the Ambassador Hotel on the night of the assassination and he saw petitioner with a taller man and a woman in a polka dot dress. [See DN 153 at 40; Petition at 131]. According to Griffin, petitioner shot at Senator Kennedy from a distance of eight or nine feet while the taller man shot Paul Schrade then ran out of the hotel with the woman. Griffin also claimed that the other witnesses testified incorrectly because he was the first person to capture petitioner and he was pulled off petitioner by Rosie Greer and Rafer Johnson. [www.maryferrel.org, Ex. 33 to Request to Los Angeles County Grand Jury (interview of Griffin by Melanson on June 5, 1987) ]. Not only is Griffin's statement at odds with the statements of almost every other witness who was in the kitchen pantry that night, but it actually inculpates petitioner because Griffin is very certain that petitioner shot Senator Kennedy while the second gunman shot another victim.
Petitioner has not submitted the actual affidavit, so the Court's citation is to petitioner's quotation of Freed's affidavit in petitioner's federal habeas petition. According to the petition, the affidavit was submitted to the California Supreme Court as Exhibit 88 to the 1997 habeas petition. [Petition at 131]. Although this Court requested and received the exhibits attached to petitioner's 1997 petition [DN 197], Freed's affidavit is not among the exhibits, nor, for that matter, are any of the exhibits numbered. For purposes of analysis, the Court assumes that petitioner's recitation of Freed's declaration is accurate.
Again, petitioner has not submitted a declaration from Griffin. For purposes of analysis, the Court assumes petitioner could obtain admissible evidence consistent with his recitation of Griffin's 1987 statements.
Nina Rhodes–Hughes
Petitioner relies on witness Nina Rhodes–Hughes, who also was in the kitchen pantry at the time of the shooting. According to Rhodes–Hughes, she was six or seven feet behind Senator Kennedy when she heard two or three “popping sounds” originating from her left. [Rhodes–Hughes Declaration at 3]. According to Rhodes–Hughes, Senator Kennedy “did not appear at that moment to have been wounded by those first couple of shots.” [Rhodes–Hughes Declaration at 3]. Rafer Johnson and Rosie Grier ran to a spot to Rhodes–Hughes's left where the popping sounds had come from and joined others in an attempt to subdue a dark skinned man with a blue denim jacket. As the man was being subdued, Rhodes– Hughes heard gunshots originating from her right, where Senator Kennedy was located. The shots from the right “continued in a more rapid fire and with a different sound,” and Senator Kennedy “had disappeared from [her] view.” [Rhodes–Hughes Declaration at 4]. Rhodes–Hughes saw Senator Kennedy lying on the floor with blood next to his head. She screamed and then fainted. [Rhodes–Hughes Declaration at 4]. Rhodes–Hughes states that she “counted a total of between 12 and 14 shots fired in the kitchen pantry from the two different locations.” [Rhodes–Hughes Declaration at 4]. Finally, she says that the statements attributed to her in the 1968 F.B.I. interview—in which she is reported to have said that she heard eight shots fired—were inaccurate or falsified. [Rhodes–Hughes Declaration at 6–7].
Petitioner originally failed to submit a declaration from Rhodes–Hughes, but relied upon statements attributed to her in Melanson's 1998 book, Shadow Play. [DN 195 at 31]. After the original report was issued noting this failure, petitioner submitted Rhodes–Hughes's declaration as an exhibit to his objections. The Court has discretion, but is not required, to consider the declaration. See Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir.2012) ; Brown v. Roe, 279 F.3d 742, 744–745 (9th Cir.2002) ; United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000), cert. denied, 534 U.S. 831, 122 S.Ct. 76, 151 L.Ed.2d 40 (2001). Arguably, the circumstances of this case do not warrant consideration of the belatedly submitted declaration. In particular, petitioner is represented by competent counsel and has been since the date he filed his petition. The petition has been pending for more than 12 years, during which time the Court has granted numerous extensions of time and allowed petitioner to submit evidence supporting his claims. Petitioner knew about Rhodes–Hughes long ago, and has offered no explanation for his failure to submit a declaration before the report was issued. See Howell, 231 F.3d at 622–623 (upholding the district court's decision not to consider new allegations made for the first time in objections to a report, noting that Howell, who was represented by counsel, had the opportunity to provide the specific facts earlier, but failed to do so, and also noting Howell did not provide an adequate explanation for his failure). Nevertheless, in the interest of a thorough analysis and record of petitioner's claims, the Court considers the declaration.
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.
It bears repeating that almost none of the evidence petitioner relies upon is “new”—in fact, most of it was known, or reasonably could have been known, to petitioner at the time of his trial. In particular, Freed's statements were known to petitioner in 1992, and Griffin's were known to petitioner in 1987. The strength of this evidence is reduced by the lengthy delay in presenting it. See Perkins, 133 S.Ct. at 1935–1936.
Analysis
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]. Furthermore, petitioner himself has denied the plausibility of this second-shooter theory. During a parole hearing, petitioner stated:
If anybody else was involved, wouldn't I help myself after all these years, by telling authorities who else was in on it? The second gun theory is interesting but it is implausible since I was not acting in concert with anyone else. The only one it could have been was a security guard next to Kennedy, who might have fired by mistake. Frankly, for a long time I had encouraged those putting forth the second gun theory. I would have liked somehow to find out that the fatal bullet had been fired by someone else. But is seems quite unlikely and besides, it would not erase what I did.
[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) ].
The parties have not provided the Court with a transcript from the 1985 parole hearing. Petitioner, however, has not objected to consideration of respondent's lodged document, nor has he disputed the accuracy of the quote attributed to him. In fact, in a 2010 letter to his attorney, petitioner admitted making these statements, but explained that he made them only because “it was literally inculcated into me that I was the only person who killed Bobby Kennedy. But, when the LAPD released the files of my case to the State Archives in 1988(?), and I began to hear from other inmates who watched T.V. programs, that I could not have committed the crime, and later when Lynn Mangan began to delve into the records at the Archives in Sacramento, I began to question my involvement in this horrible crime.” [DN 135, Ex. 2].
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 Ex. 33 to Request to Los Angeles County Grand Jury (interview of Griffin by Melanson on June 5, 1987) ].
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.
Evidence regarding hypnotic programming
While the Court considers this and other new evidence for purposes of determining whether petitioner has made a sufficient showing of actual innocence, it notes that consideration of some of this evidence in the context of a determination of the merits of petitioner's claims may be precluded by Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 1400, 179 L.Ed.2d 557 (2011) (explaining that review under section 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits and federal courts may not consider evidence introduced for the first time in federal court).
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]. Scheflin states that “the creation of an hypnotically programed assassin or patsy (distractor) is possible only with a very small percentage of people who fall within the category of ‘high hypnotizables.’ ” Sirhan Sirhan, based upon Dr. Daniel Brown's extensive psychological testing and interviews with him, meets the criteria for “an ideal subject for this extreme form of mental manipulation.” [DN 180, Ex. G at 6]. Scheflin provides a lengthy history of the study of the possible uses of hypnosis by the CIA, including projects researching whether a person could be hypnotized by phone, whether a person could be induced to commit murder or suicide, and whether it was possible to create full amnesia for actions taken under hypnosis. The answer to all of these questions, according to Scheflin, is “yes.” [DN 180, Ex. G at 22–24]. In fact, one CIA document from 1954 indicates that the agency was investigating whether an individual could “be induced under [hypnosis ] to perform an act, involuntarily, of attempted assassination against a prominent [redacted] politician or if necessary, against an American official.” [DN 180, Ex. G at 24–25]. In conclusion, Scheflin states that “it is possible, with a small select group of individuals, to influence the mind and behavior beyond legally and ethically permissible limits.” [DN 180, Ex. G at 30].
For example, Scheflin quotes CIA memoranda from the 1950s indicating that the CIA was interested in “gett[ing] control of an individual to the point where he will do our bidding against his will and even against such fundamental laws of nature ... as self preservation....” [DN 180, Ex. G at 17].
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 people begin to come through the back doors. The woman put her arm on petitioner's shoulder. Then petitioner had a “flashback” to the shooting range. He did not know that he had a gun. But he saw a target. Petitioner loaded his gun and saw circles. He tried to hit the target and fired one or two shots before snapping out of it and thinking, “I'm not at the range,” and then “what is going on?” People grabbed petitioner. He did not realize until later that Senator Kennedy had been shot and that he was the shooter. [DN 153, Ex. I at 11–13].
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:
I am convinced that Mr. Sirhan legitimately recalled a flashback to shoot target circles at a firing range in response to the post-hypnotic touch cue and did not have the knowledge, or intention, to shoot a human being, let alone Senator Kennedy.... [I]t is my opinion that Mr. Sirhan did not act under his own volition and knowledge or intention at the time of the assignation and is not responsible for actions coerced and/or carried out by others, and further that the system of mind control which was imposed upon him has also made it impossible for him to recall under hypnosis or consciously, many critical details of actions and events leading up to and at the time of the shooting in the panty of the Ambassador Hotel.
[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:
It is relevant that Petitioner was missing for two weeks after falling from a horse and came back “different” according to his family and friends. He remembers
a “prison-like” hospital unit where he drifted in and out of consciousness, likely under the influence of hallucinogenic or psychiatric drugs and hypnotic suggestions.
[DN 180, Ex. H at 20–21]. Brown also identifies “new evidence” supporting his theory, including:
strong scientific data for a range of the Petitioner's personality factors highly predictive of vulnerability to coercive persuasion; a memory of shooting upon cue; evidence of being missing for two weeks immediately after his horse injury during which he recalled a prison-like hospital unit; a memory of meeting a strange man with a foreign accent and turned down moustache who first introduced the idea that government officials needed to be killed; a memory of that same strange man sharing a mutual interest in short wave radios with the Petitioner (the Petitioner's passionate hobby as a short wave radio operator was never explored at trial); a memory of learning to shoot at vital organs and human targets with a “range master” at Corona Police Firing Range; corroboration that the Corona Police Firing Range actually existed and that petitioner signed in the Saturday before the assassination to practice at the Corona range days before the assassination accompanied by a man fitting the description of the strange man with the turned down moustache and foreign accent, who refused to sign in; and a memory that Petitioner often wrote in his spiral notebooks at night in an hypnotic state, while communicating with other parties on his short-wave radio.
[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]. As respondent points out, the Ninth Circuit has said that, “it is clear that the mere presentation of new psychological evaluations ... does not constitute a colorable showing of actual innocence.” Griffin v. Johnson, 350 F.3d 956, 965 (9th Cir.2003) (quoting Harris v. Vasquez, 949 F.2d 1497, 1516 (9th Cir.1990) ), cert. denied, 541 U.S. 998, 124 S.Ct. 2039, 158 L.Ed.2d 510 (2004). As the court explained:
According to Brown, the two schools of thought “mainly disagree about whether or not hypnosis plays a special role in behavioral control....” He explains that in all laboratory research studies, “it was relatively easy to produce antisocial behaviors, with and without hypnosis. The only disagreement between socio-cognitive and state theorists is whether hypnosis contributes anything special to this end.” [LD 180, Ex. H at 8–9].
“Because psychiatrists [let alone psychologists] disagree widely and frequently on what constitutes mental illness,” we have observed that evaluations such as Dr. Stanulis's merit little weight on habeas review because “a defendant could ... always provide a showing of factual innocence by hiring psychiatric experts who would reach a favorable conclusion.”
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.
In the social security context, the Ninth Circuit has held that the opinion of a treating psychiatrist whose examination post-dated the alleged date of disability may be disregarded because “[a]fter-the-fact psychiatric diagnoses are notoriously unreliable.” Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984).
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, the “pinch,” and his subsequent drawing out the gun and shooting during his “flashback” to the shooting range are “facts” that could fit the mind control theory. Then again, they are fuzzy recollections of portions of a night more than forty years ago that contradict petitioner's prior, more contemporaneous statements.
Among other things, most of these occurrences are commonplace and typically do not suggest anything out of the ordinary.
Petitioner's own story is internally inconsistent. If petitioner was the subject of a sophisticated hypno-programming effort, it makes no sense that the only reason he ended up at the Ambassador Hotel was the chance suggestion by “some guys” who wanted to party and meet girls. [See DN 153, Ex. I at 8].
Some of the contradictory statements are found in petitioner's handwritten notes provided to defense investigator Michael McGowan, in which petitioner provides great detail about his actions at the Ambassador Hotel prior to the shooting. These notes, filed under seal, contain a detailed account of petitioner's conduct that is not consistent with the account petitioner recently “recalled” during his interviews with Brown. [DNs 189–194 Declaration of Michael McGowan, Exs. D, E, F, G; LD 25 (letter between petitioner's investigator Michael McGowan and Dan Moldea dated February 25, 1995 indicating that petitioner recalled meeting Senator Kennedy's eyes just before shooting him, and when McGowan asked petitioner why he didn't shoot him between the eyes, petitioner answered), “Because that son of a bitch turned his head at the last second.”]. Petitioner's inconsistent versions of events undermine the reliability of Brown's conclusions.
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, and evidence that a scenario under which petitioner acted under the influence of a form of mind control is, in the view of some, theoretically possible. Under Schlup, the Court must “assess how reasonable jurors would react to the overall, newly supplemented record,” including all the evidence petitioner has submitted in this proceeding. House, 547 U.S. at 538, 126 S.Ct. 2064. Considering all of the evidence, old and new, incriminatory and exculpatory, admissible and inadmissible, the Court cannot say that it is more likely than not that no reasonable juror would have found petitioner guilty of the assassination of Senator Kennedy beyond a reasonable doubt. See Lee, 653 F.3d at 943–945 (finding that the petitioner failed to satisfy the actual innocence exception where he presented (a) an expert opinion that the child victim's statements were not reliable; (b) a police report showing that the boyfriend of the victim's babysitter had molested the victim; and (c) evidence that the victim's babysitter initially denied that the petitioner was present when she left the victim at her apartment); Beaty v. Schriro, 554 F.3d 780, 784 (9th Cir.) (noting that “mere speculation about a possible suspect is not enough”), cert. denied, 558 U.S. 832, 130 S.Ct. 364, 175 L.Ed.2d 50 (2009) ; Griffin, 350 F.3d at 963–965 (finding that the petitioner failed to make an adequate showing of actual innocence based on newly presented psychiatric hospital records indicating that the petitioner suffered from a kind of brain damage with a history of aggressive behavior because the evidence would not lead a reasonable juror to conclude that the petitioner could not have formed the criminal intent necessary to commit murder over twenty years later).
Since the fatal shot was at point-blank range, it seems highly unlikely that the unknown second shooter could have approached Senator Kennedy that closely, shot him, and then escaped a crowded room essentially unnoticed.
Conclusion
For the foregoing reasons, it is recommended that respondent's motion to dismiss the petition be granted.
Dated: August 26, 2013.
JUDGMENT
It is hereby adjudged that the petition for a writ of habeas corpus is dismissed as untimely.