Karen Chades v. Molly Hill ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN DENISE CHADES, No. 19-70365
Applicant,
v. OPINION
MOLLY HILL, Acting Warden,
Respondent.
Application for Leave to File a Second
or Successive Habeas Corpus Petition
Argued and Submitted February 13, 2020
Pasadena, California
Filed September 30, 2020
Before: Mary M. Schroeder, Jay S. Bybee, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Collins
2 CHADES V. HILL
SUMMARY*
Habeas Corpus
The panel denied Karen Denise Chades’s application for
leave to file a second or successive habeas corpus petition
pursuant to 28 U.S.C. § 2244(b)(1) claiming that she was
denied effective assistance of counsel in her federal habeas
proceedings because her habeas counsel did not adequately
press her ineffective-assistance-of-counsel claim against her
trial counsel.
Chades was convicted of first-degree murder in California
state court. Noting that Chades concedes that her application
does not meet the statutory exceptions under which a second-
or-successive claim can be reviewed, the panel held that it has
no authority under the Anti-Terrorism and Effective Death
Penalty Act (AEDPA) to authorize her to file a second-or-
successive application. The panel declined Chades’s
invitation to set aside the strictures of § 2244 by holding that
this court has jurisdiction to entertain her request directly
under the Constitution. The panel explained that the statute
does not impermissibly preclude judicial review of an
inmate’s constitutional challenges, but rather acts as a mere
regulation of repetitious requests for relief.
Before oral argument, the panel raised sua sponte whether
a single member of the panel could construe Chades’s request
as a habeas corpus application and transfer it to a district
court for further proceedings. Regardless of whether a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHADES V. HILL 3
transfer is properly done by a panel or an individual judge,
each member of the panel declined to transfer here. The
panel wrote that treating Chades’s claim as a habeas
application amenable to transfer would invariably mean that
it is an action subject to § 2244, and that the district court
would be without power to entertain the application given
that it is second or successive in nature and requires this
court’s authorization. The panel noted that AEDPA does not
foreclose Chades from filing an original petition for habeas
corpus with the Supreme Court of the United States.
Judge Collins concurred in the judgment. He wrote that
because only a habeas petitioner who asserts that he or she
can satisfy the requirements of § 2244(b)(2) must first file an
application to a three-judge panel, and because the three-
judge panel’s corresponding statutory jurisdiction to decide
such applications extends only to such applications, Chades’s
proposed second or successive habeas petition is not subject
to § 2244(b)(3)’s pre-filing requirement, and this court
likewise has no jurisdiction under § 2244(b)(3) to decide
whether to authorize its filing in the district court. He wrote
that even assuming arguendo that this court has discretion to
deem Chades’s proposed habeas petition as an original habeas
petition presented to each panel member as a “circuit judge,”
28 U.S.C. § 2254(a), and to then transfer it to the district
court, he agrees with the majority that the panel should not
exercise such discretion here.
4 CHADES V. HILL
COUNSEL
Stephan J. Willms (argued), Deputy Public Defender;
G. Christopher Gardner, Public Defender; Law Offices of the
Public Defender of San Bernardino County, Rancho
Cucamonga, California; for Petitioner.
Christopher P. Beesley (argued), Deputy Attorney General;
Daniel Rogers, Supervising Deputy Attorney General;
Julie L. Garland, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Attorney General’s Office, San
Diego, California; for Respondent.
OPINION
BYBEE, Circuit Judge:
In 2004, Applicant Karen Denise Chades was convicted
of first-degree murder in California state court. In 2007, after
her conviction was affirmed by the California Court of
Appeal and review denied by the California Supreme Court,
she brought a petition for habeas corpus in the United States
District Court for the Central District of California. In that
petition, she faulted her trial counsel for failing to investigate
her claim of imperfect self-defense due to PTSD stemming
from sexual abuse as a child. The district court denied her
petition in 2009. We granted a certificate of appealability as
to one issue and affirmed the district court. Chades ex rel.
Gallegos v. Lattimore, 459 F. App’x 596, 598 (9th Cir. 2011).
Chades has now filed an “Application for Leave to File
Second or Successive Petition Pursuant to 28 U.S.C.
§ 2244(b)(1),” claiming that she was denied effective
CHADES V. HILL 5
assistance of counsel in her federal habeas proceedings
because her habeas counsel did not adequately press her
ineffective-assistance-of-counsel claim against her trial
counsel. This she cannot do. We deny this application.
Under the Anti-Terrorism and Effective Death Penalty
Act (AEDPA), “[b]efore a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an
order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). A claim “permitted
by this section” is one “that was not presented in a prior
application.” Id. at § 2244(b)(2), (b)(3)(A); see also Young
v. Pfeiffer, 933 F.3d 1123, 1125–26 (9th Cir. 2019) (per
curiam). “A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in
a prior application shall be dismissed.” 28 U.S.C.
§ 2244(b)(1). Chades concedes that she is seeking to file a
second-or-successive federal habeas corpus application. She
further concedes that her application does not meet the
statutory exceptions under which a second-or-successive
claim can be reviewed. We have no authority under AEDPA
to authorize Chades to file a second-or-successive
application. See Cooper v. Calderon, 274 F.3d 1270, 1275
(9th Cir. 2001).
Anticipating this problem, Chades invites us to hold that
we nevertheless have jurisdiction to entertain her request
directly under the Constitution. We decline to exercise such
jurisdiction in this case. Doing so would necessarily require
us to find that the provisions in § 2244 that bar Chades’s
application are unconstitutional as applied to her. See, e.g.,
28 U.S.C. §§ 2244(b)(1), (b)(3)(C). The Supreme Court has
already addressed AEDPA’s limitations on second or
6 CHADES V. HILL
successive habeas petitions. In Felker v. Turpin, the Court
characterized the “new restrictions on successive petitions”
as “a modified res judicata rule, a restraint on what is called
in habeas corpus practice ‘abuse of the writ,’” and held that
such restrictions “do not amount to a ‘suspension’ of the writ
contrary to Article I, § 9.” 518 U.S. 651, 664 (1996); see also
Alley v. Bell, 392 F.3d 822, 833 (6th Cir. 2004) (“[T]he
contours of [the Suspension Clause] are wide enough to
accommodate the limits Congress imposed on successive
relief in AEDPA.”); Graham v. Johnson, 168 F.3d 762,
787–88 (5th Cir. 1999) (rejecting the argument that AEDPA’s
bar on successive applications violates the Due Process
Clause); Bannister v. Bowersox, 128 F.3d 621, 623 (8th Cir.
1997) (rejecting the assertion that § 2244(b)(1) “denies a
judicial forum for a colorable constitutional claim” (internal
quotation marks omitted)). Consistent with Felker, we
likewise conclude that the statute does not impermissibly
“preclude judicial review of an inmate’s constitutional
challenges,” but rather acts as “a mere regulation of
repetitious requests for relief.” Bannister, 128 F.3d at 623(internal quotation marks omitted). We therefore reject
Chades’s invitation to set aside the strictures of § 2244.
Before oral argument, we raised sua sponte the question
of whether a single member of the panel could construe
Chades’s request as a habeas corpus application and transfer
it to a district court for further proceedings. See Fed. R. App.
P. 22(a); see also 28 U.S.C. § 2242. Regardless of whether
a transfer is properly done by a panel or by an individual
judge, we each decline to transfer here. See Zimmerman v.
Spears, 565 F.2d 310, 316 (5th Cir. 1977). Treating Chades’s
claim as a habeas application amenable to transfer would
invariably mean that it is an action subject to § 2244.
Notwithstanding Chades’s due-process arguments, the district
CHADES V. HILL 7
court would be without power to entertain the application
given that the application is second or successive in nature
and requires our authorization. See 28 U.S.C. § 2244(b)(1);
see also In re Bowles, 935 F.3d 1210, 1220–21 (11th Cir.
2019) (“AEDPA completely stripped federal district courts of
jurisdiction to hear successive claims unless the prisoner first
received authorization from the court of appeals.”).
Finally, we note that Chades is not left entirely without a
forum for airing her due-process claim while seeking habeas
relief. AEDPA does not foreclose Chades from filing an
original petition for habeas corpus with the Supreme Court of
the United States. See Felker, 518 U.S. at 654 (“[T]he Act
does not preclude this Court from entertaining an application
for habeas corpus relief . . . .”); see also Sup. Ct. R. 20.4(a).
The Supreme Court can then choose whether to act on her
petition and grant any such relief as it may find necessary.
See, e.g., In re Davis, 557 U.S. 952, 952 (2009) (mem.); Ex
parte Hull, 312 U.S. 546, 551 (1941); Ex parte Grossman,
267 U.S. 87, 121–22 (1925).
APPLICATION DENIED.
COLLINS, Circuit Judge, concurring in the judgment:
I agree with the majority that we lack jurisdiction to grant
Chades’s application to file a second or successive petition
for a writ of habeas corpus, and I likewise agree that her
application should not be transferred to the district court.
Because my reasoning differs in some respects from the
majority’s, I concur only in the judgment.
8 CHADES V. HILL
I
A
In 2004, Chades was convicted of first degree murder in
California state court based on her strangulation of a man she
claimed attempted to sexually assault her. Her conviction
was affirmed on appeal, see People v. Chades, 2006 WL
2875453 (Cal. Ct. App. Oct. 11, 2006), and the California
Supreme Court denied review.
Chades retained new counsel who, rather than filing a
state habeas corpus petition, instead proceeded straight to
federal court. In her federal habeas corpus petition, Chades
argued, inter alia, that her trial counsel had been ineffective
in failing to investigate the possibility that she had been
suffering from post-traumatic stress disorder (“PTSD”) due
to childhood sexual abuse, a fact that she claimed would have
supported an imperfect self-defense theory at trial.
Concluding that the ineffective-assistance-of-trial-counsel
claim was not colorable, the district court dismissed it on the
merits despite the fact that it had not been exhausted in state
court. See Chades v. Lattimore, 2009 WL 657006, at *7
(C.D. Cal. Mar. 10, 2009) (citing 28 U.S.C. § 2254(b)(2)).
Specifically, the magistrate judge recommended denying
Chades’s claim on the merits, concluding that Chades had
failed to present any evidence that she suffered from PTSD
and that “trial counsel cannot be deemed ineffective for
failing to pursue” a “speculative” defense. Id. at *18. In
adopting the magistrate judge’s report, the district judge
added that, for the same reason, there was no evidence of
prejudice from the alleged failure to investigate PTSD. Id. at
*1–2. Neither the district court nor this court granted a
certificate of appealability with respect to this ineffective-
CHADES V. HILL 9
assistance-of-trial-counsel claim. Instead, we granted a
certificate of appealability only as to Chades’s separate
challenge to the sufficiency of the evidence of premeditation,
and we ultimately affirmed the district court’s denial of
habeas relief on that ground. Chades ex rel. Gallegos v.
Lattimore, 459 F. App’x 596 (9th Cir. 2011).
B
In 2016, Chades filed a habeas petition in state court,
presenting the same ineffective-assistance-of-trial-counsel
claim that she had presented in her first federal habeas
petition. This time, however, Chades presented new evidence
to support the claim, including “testimony from Petitioner
about her prior sexual abuse, testimony from Petitioner’s
family members to corroborate the prior abuse, and testimony
from a psychologist confirming Petitioner suffered from post-
traumatic stress disorder.” In February 2018, the state trial
court denied the petition, finding it both meritless and
procedurally barred.
In addressing the merits, the trial court noted that, in order
to establish that her trial counsel was ineffective, Chades
would have to show prejudice, i.e., that “but for counsel’s
ineffectiveness, the result would have been more favorable
for Petitioner.” The court held that, although the “additional
testimony would have provided context to Petitioner’s claim
[at the trial that] she acted on a rash impulse,” it was not
reasonably probable that the outcome of the trial would have
been different. The new evidence did “not undercut the
contradictions between Petitioner’s testimony and the
physical evidence,” nor did it undercut the fact that
strangulation takes time and therefore reflects deliberation “or
10 CHADES V. HILL
that Petitioner not only beat and strangled the victim but
returned minutes later to strangle him a second time.”
The trial court also concluded that Chades’s petition was
procedurally defective because it was “untimely and
successive.” The court rejected Chades’s contention that, due
to the ineffective assistance of post-conviction counsel, there
was good cause to excuse these procedural defects. That
justification would require a showing that post-conviction
counsel’s deficiencies were prejudicial, and that showing
could not be made “under the above analysis that there is not
a reasonable probability of a more favorable result.”
Chades then filed a petition in the California Court of
Appeal, which denied relief in June 2018. The California
Supreme Court denied review in August 2018.
C
Chades now seeks to file a successive federal habeas
corpus petition raising the same claim of ineffective
assistance of trial counsel. She recognizes that, under the
plain language of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), this petition must be dismissed. See
28 U.S.C. § 2244(b)(1) (“A claim presented in a second or
successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.”).
But she contends that the bar of § 2244(b)(1) is
unconstitutional as applied to her, because she assertedly has
a constitutional right to the effective assistance of counsel in
the presentation of an ineffective-assistance-of-trial-counsel
claim in her first collateral-review petition, and her counsel
in her first federal habeas petition provided ineffective
CHADES V. HILL 11
assistance of counsel in failing to develop and present
evidence in support of that claim.
Chades, however, did not file her proposed petition in the
district court, which ordinarily would be the venue in which
any original petition would first be filed. Cf. FED. R. APP. P.
22(a). Instead, she filed an application in this court for leave
to file a second or successive petition, and that is the
application before us here. For the reasons set forth below,
I conclude that we lack jurisdiction to grant Chades’s
application.
II
AEDPA’s amendments place significant limitations on
the filing of a “second or successive habeas corpus
application.” 28 U.S.C. § 2244(b). As already noted,
§ 2244(b)(1) states that a claim in a “second or successive
habeas corpus application” that was “presented in a prior
application shall be dismissed.” Id. § 2244(b)(1). Subsection
(b)(2), in turn, states that a claim in such an application “that
was not presented in a prior application shall be dismissed
unless” it meets certain specified criteria. Id. § 2244(b)(2)
(emphasis added).1 In addition, before a second or successive
habeas application that is permitted by § 2244(b)(2) may be
filed in the district court, the statute imposes a streamlined
1
Specifically, the statute allows the filing of a new claim in a second
or successive habeas application in two circumstances. The first applies
when the claim relies on a new rule of constitutional law, made retroactive
by the Supreme Court. See 28 U.S.C. § 2244(b)(2)(A). The second
applies when the factual predicate for the claim could not have been
discovered previously, and the facts underlying the claim would be
sufficient to establish that, but for the constitutional error, no reasonable
factfinder would have found the applicant guilty. See id. § 2244(b)(2)(B).
12 CHADES V. HILL
pre-filing requirement as set forth in § 2244(b)(3). Under
§ 2244(b)(3)(A), “[b]efore a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” Id. § 2244(b)(3)(A) (emphasis added). Such a
motion must be decided “by a three-judge panel of the court
of appeals,” id. § 2244(b)(3)(B), “not later than 30 days after
the filing of the motion,” id. § 2244(b)(3)(D), and the panel’s
decision on the motion “shall not be appealable and shall not
be the subject of a petition for rehearing or for a writ of
certiorari,” id. § 2244(b)(3)(E).2 The panel “may authorize
the filing of a second or successive application only if it
determines that the application makes a prima facie showing
that the application satisfies the requirements of this
subsection,” id. § 2244(b)(3)(C) (emphasis added), and even
if the panel makes such a determination, the district court
upon accepting the application for filing must dismiss it
“unless the applicant shows that the claim satisfies the
requirements of this section,” id. § 2244(b)(4) (emphasis
added).
Against this backdrop, it is clear that Chades’s application
does not fall within this court’s very limited jurisdiction
under § 2244(b)(3) to authorize the filing of a second or
successive habeas petition. Under the plain language of the
statute, Chades’s proposed second habeas petition is not
subject to the pre-filing bar of § 2244(b)(3), and consequently
her application for leave to file such a habeas petition is not
2
We have treated the 30-day deadline as “‘hortatory, not
mandatory.’” Orona v. United States, 826 F.3d 1196, 1199 (9th Cir.
2016) (quoting Ezell v. United States, 778 F.3d 762, 764–65 (9th Cir.
2015)).
CHADES V. HILL 13
within our correlative jurisdiction under that section. Section
2244(b)(3)(A) only imposes a pre-filing requirement—and
only grants us jurisdiction to authorize the filing of a second
or successive habeas petition—when the applicant seeks to
file in the district court a “second or successive [petition]
permitted by this section.” Id. § 2244(b)(3)(A) (emphasis
added). The only petitions “permitted by this section” are
those described in § 2244(b)(2)—i.e., a habeas petition
containing claims that were “not presented in a prior
[petition].” Id. § 2244(b)(2) (emphasis added). Chades,
however, does not contend that she can meet the criteria set
forth in § 2244(b)(2) for filing a “second or successive habeas
corpus application” that contains claims “that [were] not
presented in a prior application.” Id. (emphasis added).
Indeed, § 2244(b)(2) has nothing at all to do with her
application in this court. Rather, Chades’s argument is that
she wants to file a “second or successive” habeas petition
containing a claim “that was presented in a prior [petition],”
and that subsection (b)(1), by flatly requiring dismissal of that
successive habeas petition, unconstitutionally infringes on her
asserted constitutional right to effective assistance of counsel
in her first post-conviction habeas petition that alleges
ineffective assistance of trial counsel. Id. § 2244(b)(1)
(emphasis added).
Because only a habeas petitioner who asserts that he or
she can satisfy the requirements of § 2244(b)(2) must first file
an application to a three-judge panel, and because the three-
judge panel’s corresponding statutory jurisdiction to decide
such applications extends only to such applications, Chades’s
proposed second or successive habeas petition is not subject
to § 2244(b)(3)’s pre-filing requirement, and we likewise
have no jurisdiction under § 2244(b)(3) to decide whether to
authorize its filing in the district court.
14 CHADES V. HILL
III
Even assuming arguendo that we have discretion to deem
Chades’s proposed habeas petition (which is attached to her
application for leave to file it) as an original habeas petition
presented to each panel member as a “circuit judge,”
28 U.S.C. § 2254(a), and to then transfer it to the district
court, I agree with the majority that we should not exercise
such discretion here.
As the majority recognizes, we could not properly transfer
the petition to the district court without finding that the
district court would have jurisdiction over the petition.
Arreola-Arreola v. Ashcroft, 383 F.3d 956, 964–65 (9th Cir.
2004), overruled on other grounds by Morales-Izquierdo v.
Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc). Chades
concedes that § 2244(b)(1)’s bar is jurisdictional in nature,
and we therefore could not transfer the petition to the district
court unless (at the very least) we first were to conclude that
Chades is correct in contending that the jurisdictional
limitation in § 2244(b)(1) is unconstitutional as applied to
her. I do not think that she has made such a showing.
Chades’s argument that the limitations of § 2244(b)(1) are
unconstitutional as applied here rests on her contention that
her first post-conviction counsel’s ineffective assistance
deprived her of her asserted constitutionally guaranteed right
to effective assistance of post-conviction counsel in the
presentation of an ineffective-assistance-of-trial-counsel
claim. Even assuming that this theory has any legal validity
(a point I do not reach), I think that Chades’s contention fails
on the specific facts of this case. As the state trial court
recognized in its 2018 order, unless Chades can show that her
trial counsel’s assertedly deficient performance was
CHADES V. HILL 15
prejudicial, she cannot show that her post-conviction counsel
was ineffective in failing to present that claim. Moreover,
Chades concedes in her proposed second federal habeas
petition that, because a California state court has now ruled
on the merits of her augmented ineffective-assistance-of-trial-
counsel claim, the question of whether trial counsel’s
performance was prejudicial would be governed by AEDPA’s
deferential standards of review. See 28 U.S.C. § 2254(d).
The end result is that Chades’s constitutional challenge to the
jurisdictional limitations of § 2244(b)(1) here overlaps with
the merits of her underlying ineffective-assistance-of-trial-
counsel claim. As a result, if the state court reasonably
concluded that the additional evidence that her trial counsel
failed to uncover would not have altered the outcome of the
trial, then (1) she cannot show that her ineffective-assistance-
of-trial-counsel claim has merit; (2) she therefore cannot
show that her post-conviction counsel’s alleged
ineffectiveness was prejudicial; and (3) she would lack any
basis for contending that the bar of § 2244(b)(1) is
unconstitutional as applied to her here. And because I think
that she is wrong in contending that the state court’s
conclusion is unreasonable, I think her attack on § 2244(b)(1)
necessarily fails.
In arguing that the trial court’s order represents an
unreasonable application of the ineffective-assistance-of-
counsel standards set forth in Strickland v. Washington,
466 U.S. 668 (1984), Chades rests almost entirely on the
contention that the underlying trial testimony did not support
the trial court’s statement that there were “minutes” between
Chades’s two strangulation attempts of the victim. (That
characterization, in turn, originated in the California Court of
Appeal opinion affirming Chades’s conviction. See Chades,
2006 WL 2875453, at *3.) Chades is correct that, in
16 CHADES V. HILL
recounting her post-arrest incriminating statements at trial,
the officer who testified did not explicitly state that there
were “minutes” between the two strangulation attempts. But
given that one strangulation attempt occurred while Chades
and the victim were standing and the second attempt occurred
while they were on the ground, and given the evidence of an
extended struggle between the two (which included Chades
beating him with a broomstick), the inference that the two
strangulation attempts were not immediately successive was
reasonable.
More importantly, even if the two attempts occurred
seconds apart rather than minutes apart, that would not
materially detract from the trial court’s overall conclusion
that prejudice had not been shown. As the trial court noted,
Chades’s version of the incident in her trial testimony was
repeatedly and directly contradicted by the physical evidence.
The point is confirmed by the Court of Appeal’s opinion on
direct appeal, which noted that Chades’s denial that she
struck the victim was contradicted by the bloody broomstick
at the scene; her claim that his wallet fell out during the
struggle was contradicted by the evidence that the wallet had
been rifled through; and her claim that she had not tried to
clean the murder scene was contradicted by evidence showing
that the garage floor was wet and smelled of bleach. Chades,
2006 WL 2875453, at *4. The trial court did not act
unreasonably in concluding that it is not reasonably probable
that the jury would have reached a different result by
receiving additional testimony bearing upon Chades’s mental
state at the time of the crime.
At the very least, I am unable to conclude, on this record,
that Chades is entitled to a favorable exercise of discretion in
CHADES V. HILL 17
the disposition of her jurisdictionally deficient application for
leave to file a second or successive habeas petition.
IV
In light of these conclusions, I do not reach any of the
other issues addressed in the majority’s opinion, and I concur
only in the majority’s judgment dismissing Chades’s
application for lack of jurisdiction.