MURRAY HOOPER V. MARK BRNOVICH ( 2022 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MURRAY HOOPER, No. 22-16764
Plaintiff-Appellant, D.C. No. 2:22-cv-01923-SMM
v.
OPINION
MARK BRNOVICH, Attorney General of
Arizona; MICHAEL SULLIVAN, Police
Chief for the City of Phoenix,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted November 15, 2022
San Francisco, California
Before: Jacqueline H. Nguyen, Mark J. Bennett, and Ryan D. Nelson, Circuit
Judges.
Per Curiam Opinion
PER CURIAM:
The State of Arizona plans to execute Murray Hooper on Wednesday,
November 16, 2022. On September 22, 2022, in Maricopa County Superior Court,
Hooper moved under state law for an order permitting him to conduct DNA testing
and fingerprint analysis on evidence found at the crime scene more than forty years
ago. See Ariz. Rev. Stat. § 13-4240 (DNA testing); id. § 13-4241 (other forensic
testing). The superior court denied relief in an October 21, 2022 order. Hooper
sought review of this order via a special action petition in the Arizona Supreme
Court. The state supreme court accepted jurisdiction and affirmed the superior
court’s ruling in a November 10, 2022 order.
Hooper then commenced this federal lawsuit under 42 U.S.C. § 1983. He
seeks a declaratory judgment that the Arizona statutes providing for forensic
testing of DNA and other evidence are unconstitutional as applied to him as well as
an injunction ordering defendants to permit him to conduct the forensic testing. He
moved for a preliminary injunction prohibiting his execution until he obtains this
relief. The district court denied the injunction, and Hooper appeals.
We conclude that the district court lacked subject matter jurisdiction under
the Rooker-Feldman doctrine because this action amounted to an improper appeal
2
of the state courts’ judgment.1 Therefore, we vacate the district court’s order
denying the preliminary injunction and remand with instructions to dismiss.
I.
We have previously set forth the facts and procedural history of this case,
see Hooper v. Shinn, 985 F.3d 594 (9th Cir. 2021), cert. denied, 142 S. Ct. 1376
(2022), and we do not repeat them in detail here. On the evening of December 31,
1980, three armed intruders forced their way into Pat and Marilyn Redmond’s
Phoenix home, killing Pat along with Marilyn’s mother, Helen Phelps, and
shooting Marilyn in the head in an unsuccessful attempt to kill her. Although
“overwhelming evidence” supports the jury’s finding that Hooper was one of the
three intruders, id. at 617, he maintains his innocence.
A.
In 2000, Arizona amended its criminal code to provide a mechanism
whereby a person who has received a felony sentence, under certain circumstances,
can obtain forensic DNA testing of evidence related to the investigation or
prosecution of his case. Such a person may petition the court for this relief “[a]t
any time.” Ariz. Rev. Stat. § 13-4240(A). If the petitioner makes certain showings
and the prosecutor has notice and an opportunity to respond, then the court either
1
See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462 (1983).
3
“shall” or “may” order the DNA testing, id. § 13-4240(B), (C), depending on the
strength of the petitioner’s showing as to the evidence’s materiality.2
If the petitioner shows a “reasonable probability” that he “would not have
been prosecuted or convicted if exculpatory results had been obtained through
[DNA] testing,” id. § 13-4240(B)(1), then the court “shall order” the testing. Id.
§ 13-4240(B). If the petitioner cannot make that showing, the court still “may
order” testing if the petitioner shows a reasonable probability that either his
“verdict or sentence would have been more favorable if the results of [DNA]
testing had been available at the trial,” id. § 13-4240(C)(1)(a), or “[DNA] testing
will produce exculpatory evidence.” Id. § 13-4240(C)(1)(b).
Last year, the Arizona legislature added a general provision for
postconviction forensic testing using newly available techniques. See Ariz. Rev.
Stat. § 13-4241. This statute is modeled on the statute for DNA testing but
provides less flexibility as to the materiality showing. The petitioner must show a
“reasonable probability” that he “would not have been prosecuted or convicted if
exculpatory results had been obtained through the new forensic testing.”
2
In all cases, the petitioner must show that the evidence “is still in existence
and is in a condition that allows [DNA] testing to be conducted,” id.§ 13-4240(B)(2), (C)(2), and that it “was not previously subjected to [DNA] testing
or was not subjected to the testing that is now requested and that may resolve an
issue not previously resolved by the previous testing,” id. § 13-4240(B)(3), (C)(3).
These requirements are not at issue here.
4
Id. § 13-4241(B)(1). If the petitioner satisfies this and the statute’s other
requirements, then the court “shall order” the new testing. Id. § 13-4241(B).
Unlike the DNA-specific statute, the general statute does not grant courts the
discretion to order testing when the petitioner makes only a lesser showing of
materiality.
B.
Hooper moved under these two statutes to test approximately twelve
fingerprints and a bloody kitchen knife found at the Redmond home. He argued
that analyzing the fingerprints in local and national databases could have “linked
an alternative suspect to the crime.” He similarly argued that DNA testing of any
biological material on the knife could “identify the actual perpetrators and
undermine the integrity of [his] convictions.”
The Maricopa County Superior Court denied Hooper’s motion for
fingerprint testing based on a finding that “there is no ‘reasonable probability . . .
that [he] would not have been prosecuted or convicted if exculpatory results had
been obtained through the new forensic testing.’” Although the superior court
agreed with Hooper about the “absence of physical evidence” connecting him to
the murders, the court found that a “significant amount” of other evidence—
including Marilyn’s identification of Hooper—shows that he committed them. In
light of this evidence, including evidence that the perpetrators wore gloves, the
5
court reasoned that whatever fingerprint testing might reveal, it would not have
been reasonably likely to have affected the outcome. For similar reasons, the court
found that Hooper was not entitled to mandatory DNA testing under section
13-4240(B) or discretionary DNA testing under section 13-4240(C).
In affirming these rulings, the Arizona Supreme Court rejected Hooper’s
argument that the superior court had placed undue reliance on the overwhelming
evidence of Hooper’s guilt. The state supreme court concluded that “the superior
court applied the proper analysis” when it relied on the “compelling and
consistent” trial testimony, corroborated by circumstantial and other evidence, in
finding there was not a reasonable probability that Hooper would have avoided
prosecution or conviction with exculpatory evidence from forensic testing. The
supreme court explained that “exculpatory” evidence in this context means
“someone else’s fingerprints [or DNA] at the crime scene.” Because the superior
court provided “a reasonable explanation about why another person’s DNA may
have been on the knife” and why even fingerprint evidence that was “inconsistent
with the State’s version of the facts” did not outweigh the other evidence, the
supreme court found no abuse of discretion.
C.
Hooper filed this § 1983 action against the Arizona Attorney General and
the Phoenix Chief of Police in their official capacities “to challenge the
6
constitutionality of the [forensic testing] statutes as applied by the State of
Arizona.” He alleges that defendants’ “continued refusal to allow [him] to test key
evidence in their possession denies him due process of law and access to the courts
and violates his Eighth Amendment right to be free from cruel and unusual
punishment.”
Hooper moved for a preliminary injunction to prohibit his execution before
he obtains the DNA and fingerprint evidence that he maintains will exonerate him.
The State argued, among other things, that Rooker-Feldman bars Hooper from
litigating his claims in the district court. The district court concluded that Rooker-
Feldman does not apply but denied the motion for a preliminary injunction on the
ground that Hooper did not establish a likelihood of success on the merits of his
due process claim.
II.
Although the State does not reassert its Rooker-Feldman argument in its
appellate brief,3 “we have an independent obligation to determine that subject
matter jurisdiction exists both in this court and in the district court.” Serrano v.
180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007). We have appellate
jurisdiction under 28 U.S.C. § 1292(a)(1), which encompasses review of the
3
We asked counsel to address this issue at oral argument. Counsel for the
State maintained that “the district court did not have jurisdiction.”
7
district court’s “authority to rule on a party’s motion for a preliminary injunction.”
Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir. 2003); see also Hall v. U.S. Dep’t
of Agric., 984 F.3d 825, 834 (9th Cir. 2020) (considering federal subject matter
jurisdiction before addressing the merits of appeal from order denying preliminary
injunction). While “we ordinarily review the grant or denial of injunctive relief for
abuse of discretion, here the issue is jurisdiction which we review de novo.” Serv.
Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1069 (9th
Cir. 2010) (internal citation omitted); see also Benavidez v. County of San Diego,
993 F.3d 1134, 1141 (9th Cir. 2021).
III.
A.
Under the Rooker-Feldman doctrine, “a state-court decision is not
reviewable by lower federal courts.” Skinner v. Switzer, 562 U.S. 521, 532 (2011).
This doctrine bars a federal district court from exercising subject matter
jurisdiction “not only over an action explicitly styled as a direct appeal, but also
over the ‘de facto equivalent’ of such an appeal.” Morrison v. Peterson, 809 F.3d
1059, 1069–70 (9th Cir. 2015) (quoting Cooper v. Ramos, 704 F.3d 772, 777 (9th
Cir. 2012)).
“To determine whether an action functions as a de facto appeal, we ‘pay
close attention to the relief sought by the federal-court plaintiff.’” Cooper, 704
8
F.3d at 777–78 (quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir.
2003)). A “forbidden de facto appeal under Rooker-Feldman” arises “when the
plaintiff in federal district court complains of a legal wrong allegedly committed
by the state court, and seeks relief from the judgment of that court.” Noel v. Hall,
341 F.3d 1148, 1163 (9th Cir. 2003). But Rooker-Feldman “does not preclude a
plaintiff from bringing an ‘independent claim’ that, though similar or even
identical to issues aired in state court, was not the subject of a previous judgment
by the state court.” Cooper, 704 F.3d at 778 (quoting Skinner, 562 U.S. at 532).
Thus, “a statute or rule governing the [state court’s] decision may be challenged in
a federal action.” Skinner, 562 U.S. at 532.
Where the federal plaintiff “complain[s] of harm caused by a state court
judgment that directly withholds a benefit from . . . [him] based on an allegedly
erroneous ruling by that court,” Noel, 341 F.3d at 1163, the jurisdictional inquiry
hinges on whether the constitutional claims presented to the district court “are
inextricably intertwined with the state court’s [ruling].” Cooper, 704 F.3d at 778(quoting Feldman, 460 U.S. at 482 n.16). Claims are inextricably intertwined if
“the relief requested in the federal action would effectively reverse the state court
decision or void its ruling.” Id. at 779 (quoting Fontana Empire Ctr., LLC v. City
of Fontana, 307 F.3d 987, 992 (9th Cir. 2002)).
9
B.
Hooper primarily claims a denial of procedural due process, alleging that he
“was denied access to DNA and fingerprint testing of evidence due to the [state
courts’] unreasonably restrictive and unconstitutional interpretations of the [state]
statutes.” He seeks orders “directing that the fingerprint evidence collected at the
crime scene be run through local and national databases” and “requiring
[d]efendants to release the DNA evidence to [him] under a reasonable protocol . . .
so that [he] can have the evidence tested at his own expense.” He further seeks a
court declaration that he “is entitled” to this testing. Thus, the relief he seeks
would effectively reverse the state courts’ decision that he is not entitled to this
testing.
Hooper’s claim “is a pure horizontal appeal of the state court’s decision.”
Id. The entire premise of this lawsuit, as he summarizes it, is that “[his] motion for
DNA and fingerprint testing should have been granted.” He criticizes “[t]he
standard applied by the superior court” as “severely flawed” and “not the
[statutory] test.” He alleges that the state courts interpreted Arizona law
“unreasonably” because, “[c]ontrary to the state court’s construction in the present
case, the statutes do not require” such a demanding showing. And he alleges that
the state courts’ interpretation “thwarted” the statutory purpose. In short, he claims
that the state courts decided his case incorrectly.
10
As in Cooper, the complaint here “fundamentally mischaracterizes the state
court’s holding, attempting to cast the claim as [a constitutional] attack on the state
court’s statutory construction.” Id. The Cooper plaintiff alleged that the
California court’s interpretation of that state’s analogue to section 13-4240 “made
it impossible for [him] to utilize [the statute] to prove that he was framed” and
“deprive[d] [him] of his liberty and property interests in [the statute] without due
process of law.” Id. Hooper similarly alleges that the Arizona courts “impose[d]
an unconstitutional barrier” to his accessing exculpatory forensic evidence “by
reading into the statutes a near impossible requirement—that [he] must prove his
innocence as a precondition of obtaining DNA and fingerprint testing” when such
testing “[is] the only means in some cases,” including his, “to exonerate the
wrongly convicted.”4
The state courts “did not render a categorical holding,” id. at 779, that
overwhelming evidence of guilt at trial precludes a convicted person from
obtaining newly available forensic testing. They merely held that where
overwhelming evidence at trial identified the convicted person as the perpetrator
4
Arizona law does not provide an unfettered “right to postconviction
advanced forensic testing.” As the Supreme Court has explained, “all state statutes
impose conditions and limits on access to . . . evidence” for forensic testing, and a
state does not violate an inmate’s procedural due process rights merely by denying
him access to the evidence “for a perfectly adequate reason” under state law. Dist.
Att’y’s Off. v. Osborne, 557 U.S. 52, 71 (2009).
11
and the desired forensic evidence, even if favorable, would not reasonably call the
trial evidence into question, the state statutes do not authorize the discovery. The
Arizona Supreme Court repeatedly stated that the analysis required “coupl[ing]” or
“weigh[ing]” the substantial evidence of Hooper’s guilt with a “reasonable
explanation” for why another person’s fingerprints or DNA might have been in the
Redmond home. That holding does not implicate due process. See Osborne, 557
U.S. at 62 (“DNA testing alone does not always resolve a case. Where there is
enough other incriminating evidence and an explanation for the DNA result,
science alone cannot prove a prisoner innocent. The availability of technologies
not available at trial cannot mean that every criminal conviction . . . is suddenly in
doubt.” (internal citation omitted)); cf. Bible v. Schriro, 651 F.3d 1060, 1065 (9th
Cir. 2011) (per curiam) (holding applicant for second or successive habeas petition
could not establish actual innocence through proposed DNA testing because,
“[w]hatever the DNA testing . . . might reveal, it could not refute the
overwhelming inculpatory evidence presented at . . . trial”); Landrigan v. Trujillo,
623 F.3d 1253, 1257 (9th Cir. 2010) (explaining that test results excluding the
inmate as a contributor of any of the DNA on the victim’s jeans, blanket, and
12
curtain “do not show that [the inmate] was not, at a minimum, a major participant
in [the victim’s] death”).5
Hooper’s claim differs in critical ways from those in Skinner and Morrison,
where Rooker-Feldman did not apply. In Skinner, the plaintiff “[did] not
challenge . . . the decisions reached by the [state court] in applying [the state
statute] to his motions” for DNA testing and challenged only the constitutionality
of the statute “as construed” by the state court. Skinner, 562 U.S. at 530–32. Here,
Hooper does not challenge the state statute as written or as actually construed by
the state courts; he merely disagrees with the way in which the state courts applied
the statute to the facts of his case.
In Morrison, the plaintiff argued that the California statute violated
procedural due process “as applied in those cases . . . where a petitioner’s motion
must be adjudicated by a judge who did not preside over the petitioner’s original
trial.” Morrison, 809 F.3d at 1069–70. The plaintiff challenged the statute’s
5
At oral argument, the State urged us to rule in the alternative that even if
Hooper’s claims are not barred by Rooker-Feldman, he failed to show a likelihood
of success on the merits. The two analyses are obviously related. As the district
court found, the state court’s denial of forensic testing did not deprive Hooper of
due process, in part because “[t]he state court did not require [him] to establish
actual innocence to qualify for forensic testing under the statute.” Hooper’s
counsel acknowledged that the Arizona Supreme Court recited the correct
standard. And in fact the state supreme court applied that standard by balancing
the most exculpatory results that testing might reveal with the overwhelming
evidence of Hooper’s guilt.
13
constitutionality based on an alleged procedural defect that was “not limited to the
particulars of [his] situation.” Id. at 1070. Crucially, the plaintiff “[did] not seek
an order that he be allowed DNA testing,” id. (emphasis added), contrary to what
the state courts had ruled, id. at 1063–64, but that is precisely what Hooper seeks
here.
Because Hooper “in fact challenges the particular outcome in his state case,
‘it is immaterial that [he] frames his federal complaint as a constitutional challenge
to the state court’s decision, rather than as a direct appeal of that decision.’”
Cooper, 704 F.3d at 781 (cleaned up) (quoting Bianchi, 334 F.3d at 900 n.4). The
Rooker-Feldman doctrine bars federal courts from adjudicating his procedural due
process claim. See id.Hooper’s remaining constitutional claims are “variation[s] on his first
claim.” Id. In his second claim, he asserts that the Arizona courts “impose[d] an
unreasonable barrier to court access not contemplated by the legislature by reading
into these statutes an impossible hurdle to obtaining fingerprint and DNA testing
results,” depriving him “of meaningful access to post-conviction procedures
provided by Arizona law . . . in violation of the Petition Clause of the First
Amendment to the United States Constitution.” In his third claim, he asserts that
“Arizona’s construction of these statutes to deny [his] basic procedural rights to
access fingerprint and DNA testing to demonstrate his innocence before he is
14
executed violates the Eighth Amendment.” And in his fourth claim, he asserts that
defendants violated the Due Process Clause of the Fourteenth Amendment “[b]y
refusing to release the physical evidence for fingerprint and DNA analysis, and
thereby preventing [him] from gaining access to evidence that could exonerate
him.” These claims all seek to undo the state courts’ judgment and are similarly
barred by Rooker-Feldman.
IV.
Because the district court lacked subject matter jurisdiction over this suit, we
vacate its order denying the preliminary injunction and remand with instructions to
dismiss the suit.6 See Ass’n of Flight Attendants v. Mesa Air Grp., Inc., 567 F.3d
1043, 1046 (9th Cir. 2009).
VACATED and REMANDED.
6
We deny Hooper’s motion for stay of execution (docket entry no. 7) as
moot. See Mitchell v. United States, 971 F.3d 1081, 1085 n.6 (9th Cir. 2020) (per
curiam).
15