Smith v. Davis

Background

Troy Smith, an inmate at San Quentin State Prison, was convicted by a jury in 2006 of robbery, false imprisonment, burglary, conspiracy, and a firearm enhancement arising from the robbery of Lang’s Jewelry Store near Union Square in San Francisco. He received a 26-year state-prison sentence. The opinion states that the conviction relied primarily on fingerprint evidence from a newspaper and poster board found at the crime scene, along with other evidence described by the court.

Smith previously filed a federal petition challenging his conviction. That petition included a due-process claim based on insufficient evidence and a claim under Brady v. Maryland, which requires disclosure of material evidence favorable to the defense. The earlier Brady claim concerned the State’s failure to timely disclose evidence about lead investigator Daniel Gardner’s prior misconduct. The district court denied the first petition in 2015, and the Ninth Circuit affirmed in 2016.

After the first federal petition was denied, Smith obtained a declaration from George Turner, who had also been convicted in connection with the robbery and was later deceased. The declaration stated that Smith was not involved in the robbery and that Deputy District Attorney Jerry Coleman offered Turner leniency if Turner did not testify for Smith. Smith filed a second state petition based on the declaration, which the state courts denied. The Ninth Circuit later granted Smith permission to seek a second or successive federal petition. The district court then required the parties to address whether the petition satisfied 28 U.S.C. § 2244.

Legal standard

Under § 2244, a federal district court must perform a threshold review of a second or successive petition, even after the court of appeals grants permission to file it. A claim presented in an earlier petition cannot be presented again. A new claim generally cannot proceed unless it relies on a previously unavailable, retroactive constitutional rule or on newly discoverable facts that could not have been found through due diligence and that would clearly and convincingly show that no reasonable factfinder would have convicted the petitioner absent a constitutional error.

The Brady claim

The court ruled that Smith’s second Brady claim was successive and had to be dismissed under § 2244(b)(1). Smith argued that Turner’s declaration made the earlier Brady claim materially different by providing an explanation for how Gardner allegedly planted evidence. The court disagreed. It found that both petitions had the same basic legal thrust: the State allegedly suppressed evidence of Gardner’s misconduct, and that evidence would have undermined Gardner’s credibility. The court held that relying on new evidence to support the same basic claim did not make the claim different for purposes of the successive-petition rule.

The prosecutorial-misconduct claim

The court separately evaluated Smith’s claim that Coleman violated his constitutional due-process rights by offering Turner leniency in exchange for not testifying. To proceed with this new claim, Smith had to satisfy both parts of § 2244(b)(2)(B).

First, the court found that Smith had not exercised due diligence. The court acknowledged that Turner might not have provided exculpatory information earlier, even if Smith had asked, but found that Smith made no attempt after trial to obtain the information, despite knowing that Turner might be able to exonerate him.

Second, the court found that Turner’s declaration was inadmissible hearsay. It did not qualify as a dying declaration because it concerned the robbery rather than the cause or circumstances of Turner’s death, and the opinion states that Turner was not facing death with an immediately impending sense of death when he made it. The declaration also did not qualify under the residual hearsay exception because the surrounding circumstances did not provide sufficient guarantees of trustworthiness. The court cited, among other factors, the 13-year delay after the robbery, the lack of a witness to the declaration, the lack of authentication of the signature, the fact that the declaration was not sworn, the absence of cross-examination, and the lack of corroborating evidence concerning the alleged meetings with Coleman.

The court added that, even if the declaration were admissible, it would not clearly and convincingly establish that no reasonable factfinder would have convicted Smith. The court pointed to the fingerprint evidence, Smith’s flight, his abandonment and cleaning of his apartment, and the discovery of robbery-related items associated with him.

Actual-innocence gateway

The court also considered whether Smith could obtain review through the actual-innocence gateway, a procedural exception allowing review of otherwise barred claims when new reliable evidence shows that a person was probably wrongly convicted. The court found that Turner’s declaration was not reliable and that the other evidence Smith cited was not new or reliable. It concluded that Smith had not shown that, considering the entire record, it was more likely than not that a reasonable factfinder could not have found him guilty.

Disposition

The court denied Smith’s motion to proceed with the second petition. The opinion’s discussion states that the second Brady claim must be dismissed as successive and that the prosecutorial-misconduct claim failed the requirements for review, including due diligence, admissibility, and the showing required for actual innocence. The order was signed by United States District Judge Susan Illston.