Morales v. Ornoski ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANGELO MORALES, 
Petitioner,
v.

No. 06-70884
STEVEN W. ORNOSKI, Acting ORDER
Warden, for the California State
Prison at San Quentin,
Respondent.

Filed February 19, 2006
Before: Andrew J. Kleinfeld, M. Margaret McKeown, and
Raymond C. Fisher, Circuit Judges.
ORDER
Michael Angelo Morales, a California state prisoner sched-
uled to be executed on February 21, 2006 at 12:01 a.m., has
filed a request for stay of execution and an application for
leave to file a second or successive (“SOS”) petition for writ
of habeas corpus under 28 U.S.C. § 2244(b). The Supreme
Court of California denied Morales’s most recent habeas peti-
tion on February 15, 2006. We have jurisdiction under 28
U.S.C. § 2244, and we deny the applications Morales now
presents to this court.1
Morales was convicted of first degree murder with premed-
itation and two special circumstances — intentional killing by
1
In a separate opinion, we deny Morales’ appeal from the district court’s
denial of a stay of execution pursuant to his 42 U.S.C. § 1983 claim. See
Morales v. Hickman, ___ F.3d ___, (9th Cir. 2006).
2009
2010 MORALES v. ORNOSKI
torture and intentional killing by lying in wait — for the bru-
tal murder and rape of Terri Winchell. His conviction became
final in 1989, after the California Supreme Court affirmed the
conviction and the United States Supreme Court denied cer-
tiorari. People v. Morales, 48 Cal. 3d 527, cert. denied Mora-
les v. California, 493 U.S. 984 (1989). On July 20, 1992,
Morales filed a petition for writ of habeas corpus in the
United States District Court and, after some of his claims
were dismissed without prejudice as not exhausted, he filed a
state habeas petition to exhaust them. The California Supreme
Court denied his petition “on the merits and as untimely,” on
July 28, 1993. Morales amended his federal petition to
include the unexhausted claims; his petition raised 52 claims.
The district court dismissed the unexhausted claims as proce-
durally defaulted. We reversed and remanded for consider-
ation of all claims on the merits. Morales v. Calderon, 85
F.3d 1387, 1388 (9th Cir. 1996). The district court then
denied his petition on the merits. On appeal, we affirmed and
the United States Supreme Court denied certiorari. Morales v.
Woodford, 388 F.3d 1159 (9th Cir. 2004), cert. denied, ___
U.S. ___, 126 S. Ct. 420 (2005).
We may grant leave to file an SOS petition only if “the
application makes a prima facie showing that the application
satisfies the requirements of” § 2244(b).2 28 U.S.C.
§ 2244(b)(3)(C). Section 2244(b)(1) requires dismissal of
claims that were previously presented in a federal habeas peti-
tion. 28 U.S.C. § 2244(b)(1). Section 2244(b)(2) requires dis-
missal of claims not previously presented unless:
(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court,
that was previously unavailable; or
2
Morales also asks us to exercise our power to recall the mandate
because of grave new circumstances. We decline to do so.
MORALES v. ORNOSKI 2011
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exer-
cise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
dence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of
the underlying offense.
Morales’s application does not rest on a “a new rule of consti-
tutional law” that requires relief, so § 2244(b)(2)(A) is not
applicable. Thus, to the extent that Morales raises claims not
previously presented, he must make a prima facie showing of
due diligence and actual innocence.
Morales seeks to raise four claims in the district court, each
of which revolves around the assertion that informant Bruce
Samuelson offered perjured testimony at trial. Morales’s
claims must be dismissed as they were either raised in the pre-
vious habeas petition and are barred under § 2244(b)(1), or
because they fail to meet § 2244(b)(2)(B)’s requirements.
In Claim One of the proposed SOS petition, Morales argues
that the prosecution fraudulently presented Samuelson’s false
testimony that Morales confessed to him while they were both
in jail, and that this false testimony was the sole basis for the
lying-in-wait special circumstances finding, which established
his death eligibility. In his previous habeas petition, Morales
raised the same arguments regarding Samuelson’s false testi-
mony about the purported confession and the prosecutor’s
knowledge of the false testimony and the purported effect on
the lying-in-wait special circumstance finding. This court
denied a Certificate of Appealability as to those claims, and
the Supreme Court denied certiorari. See Morales v. Brown,
126 S. Ct. 420 (2005).
2012 MORALES v. ORNOSKI
Morales cites now-retired Judge McGrath’s recent state-
ment made in a letter supporting the clemency petition that he
would not have permitted Morales to be subject to the death
penalty in light of the new allegations about Samuelson’s per-
jured testimony. This new assertion does not, however,
change the analysis because “the basic thrust or gravamen” of
Claim One is predicated on the same challenges to Samuel-
son’s testimony and the government’s alleged misconduct that
were previously considered by this court. As we explained in
Babbitt v. Woodford, a “ground is successive if the basic
thrust or gravamen of the legal claim is the same, regardless
of whether the basis claim is supported by new and different
legal arguments . . . [or] proved by different factual allega-
tions.” 177 F.3d 744, 746 (9th Cir. 1999) (quoting United
States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)). Accord-
ingly, this previously considered claim is dismissed under
§ 2244(b)(1).
Claims Two and Three of the proposed SOS petition are
virtually identical to claims already presented and rejected
either on the merits or through denial of a Certificate of
Appealability in the previous habeas proceeding in this Court.
Specifically, in his previous habeas proceeding, Morales
argued that his death sentence rested on the state’s presenta-
tion of false testimony from a government-planted snitch who
testified in exchange for prosecutorial favors.3 These claims
are recycled in the present petition. In Claim Two, Morales
argues that the prosecution knowingly presented Samuelson’s
false testimony regarding the extent of his plea bargain, and
also failed to disclose impeachment evidence. In Claim Three,
Morales argues that Samuelson was an unlawful government
agent planted to elicit incriminating statements from Morales,
3
Notably, in his Petition for Rehearing or Rehearing on En Banc, which
was denied in March 2005, counsel for Morales argued that “Morales’s
death sentence rests entirely on the DA’s use of false evidence from a state
sponsored snitch who testified in exchange for undisclosed prosecutorial
favors.”
MORALES v. ORNOSKI 2013
in violation of Massiah v. United States, 377 U.S. 201 (1964).
See Morales v.Woodford, 388 F.3d at 1179-80. Because these
claims were previously presented, they are dismissed. 28
U.S.C. § 2244(b)(1).
Even if we were to conclude that Claims One, Two and
Three were not previously presented, we would nonetheless
deny the application to file an SOS petition on these grounds
because Morales fails to make a prima facie showing that he
could not have previously discovered the factual predicate for
these claims through due diligence. 28 U.S.C. § 2244(b)(2)(i).
Morales has known about the alleged infirmities in Samuel-
son’s testimony since as early as 1993. To the extent that
Morales now offers more specific details about the allegedly
perjured testimony and prosecutorial misconduct, he offers
insufficient justification for failing to present the arguments
earlier; nor does he suggest that he could not have uncovered
this evidence through the exercise of due diligence as the evi-
dence has all been available since the time of Samuelson’s
original testimony. Morales offers no legitimate justification
for why the new evidence “regarding three key players in this
case: Samuelson’s lawyer, John C. Schinck; Judge K. Peter
Saiers; and the prosecutor, Bernard Garber,” was not pre-
sented earlier. The judge’s recent statement is predicated on
a favorable resolution of an evidentiary issue that Morales has
known about and been pursuing for over a decade—
Samuelson’s credibility. The Samuelson allegations, even
when coupled with the judge’s statement, do not meet the
standards necessary for a second or successive habeas corpus
application.
Morales characterizes Claim Four as a “stand-alone claim
of actual innocence,” citing Herrera v. Collins, 506 U.S. 390,
417 (1993). Morales must satisfy an “extraordinarily high”
burden under Herrera. Id. at 417. As explained in Schlup v.
Delo, 513 U.S. 298, 327 (1995), a substantive “Herrera-type
claim”—i.e., a claim based on factual innocence—“would
have to fail unless the federal habeas court is itself convinced
2014 MORALES v. ORNOSKI
that th[e] new facts unquestionably establish [Morales’s]
innocence.” This burden is not met.4
Although “Morales acknowledge[s] his involvement in and
responsibility for the homicide,” he argues that absent Sam-
uelson’s perjured testimony regarding his confession, a find-
ing of the lying-in-wait special circumstance would not have
been possible. He also argues that “uninvestigated informa-
tion about [his] history of drug abuse and his drug use [of
PCP] on the day of the offense . . . show him to be innocent”
of capital murder. This latter argument was previously raised
in his first petition in connection with his ineffective assis-
tance of counsel claim. As Morales acknowledges responsibil-
ity for the homicide, Claim Four appears to be a claim of
actual innocence solely with respect to the special circum-
stance of lying in wait.
“It is important to note in this regard that ‘actual innocence’
means factual innocence, not mere legal insufficiency.” Bous-
ley v. United States, 523 U.S. 614, 623 (1998). Significantly,
Samuelson’s testimony is not the sole basis for the lying-in-
wait circumstance. Several other witnesses, including Patricia
Flores, Morales’s housemate, and Raquel Cardenas, his girl-
friend, testified that Morales spoke with them about the mur-
der both before and after the fact. Cardenas testified that
Morales “told me how he killed her.” Morales was in the back
seat of the car and Terri Winchell was in the front passenger
seat when he “tried to strangle her . . . with the belt and it
broke so he hit her over the head . . . with a hammer.” In addi-
tion, Flores testified that the day before Morales murdered
Terri Winchell, he came up behind her in their home and
4
To the extent the claim is alternately characterized as a procedural
“gateway” claim—i.e. the miscarriage of justice exception—under Schlup
v. Delo, 513 U.S. 298 (1995), “he must show ‘by clear and convincing evi-
dence’ that no reasonable juror would have found him eligible for the
death penalty in light of the new evidence.” Calderon v. Thompson, 523
U.S. 538, 559-60 (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 348
(1992)). Morales fails to satisfy this standard as well.
MORALES v. ORNOSKI 2015
“practiced” putting a belt around her neck as if to strangle her.
Judge McGrath does not reference this testimony. With the
additional testimony of Flores and Cardenas, Morales cannot
demonstrate that the new facts, particularly Judge McGrath’s
statement, “unquestionably” establish his innocence.
As noted in our earlier opinion:
There is no reason to doubt on this record that the
jury decided that Morales had murdered her because
he was Rick Ortega’s cousin and Rick was angry and
jealous of her. There is no reason to doubt that the
jury decided Morales helped trick her into the car,
sat behind planning to kill her after some practice
with the belt and having brought a belt, hammer, and
knife to do it with. There is no reason to doubt that
after he failed to kill her by strangling her with the
belt, he beat her head in with a hammer, and when
she still lived, dragged her out of the car, raped her,
and stabbed her several times.
Morales, 388 F.3d at 1172.
Accordingly, the application for leave to file an SOS peti-
tion is denied. The request for stay of execution is denied.
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