The 9th Circuit “re tried” another habeas corpus case relying on the evidence presented to a magistrate judge who had presided over a post trial hearing and who obviously knew nothing about criminal law.  The case was originally tried by a state court jury in 1999.  Larsen, convicted and sentenced, filed a habeas corpus petition in federal court after his appeal and petitions for habeas corpus in state court were denied.

First, the 9th Circuit had to dispose of the one year statute of limitations for filing petitions for habeas corpus in federal court under AEDPA.  According to the panel, if the petition alleges and supports “factual innocence” AEDPA does not apply.  The panel considered the evidence presented at the hearing and affirmed the district court decision granting the petition.  The Warden appealed to the 9th Circuit.

Officers responded to a call from a bar that a shooting had occurred by a man wearing a green flannel shirt and sporting a pony tail.  Upon arrival at the bar parking lot, the officers saw Larsen, the man who matched the description, throw a knife under a car.  Officers arrested Larsen, who had several prior convictions, gave officers a false name. The jury convicted Larsen of possession of a deadly weapon; conviction affirmed on appeal;  review denied by the state Supreme Court. Subsequent petitions denied.

The U.S. district court granted the petition alleging ineffective counsel and the Warden appealed to the 9th Circuit. Larsen alleged he was “factually innocent.” He asserted his attorney ineffectively represented him on 3 grounds: failure to call defense witnesses; failure to request evidence of fingerprints, or the lack thereof, on the knife; failure to present evidence of third party liability.  All this “evidence” was available to Larsen at the time of trial, verdict and sentence in 1999.  He did not file his state petition on these grounds until 2005, clearly in violation of the AEDPA rule requiring habeas corpus petitions filed within one year after final judgment.

Larsen filed 13 exhibits at the federal habeas hearing. One was signed recently by Mr.McNutt and his wife.who were present at the time of the arrest. Their testimony at the hearing roughly matched their declarations.  Mr. McNutt said another man threw the knife under the car, and Larsen threw nothing. Mrs. McNuttt saw no knife in Larsen’s hand. The McNutts  moved out of state for 2 years and did not know Larsen had been tried and convicted although they saw officers arrest him.

In another hearsay declaration by  a woman, she stated a man told her he was the one who threw the knife under the truck but had not testified at trial because no one subpoenaed him.  Apparently the magistrate judge did not bother to hear the testimony of trial counsel for Larsen nor that of the officers.  She listened to the testimony of the above witnesses and found Larsen “factually innocent” on this absurd story.   No evidence was submitted on the ineffective assistance of counsel. Based on this story the 9th Circuit panel wrote an opinion that could have been resolved in one paragraph. Or one word.  Denied.

Larsen filed his state petition alleging ineffective counsel in 2005-after 6 years had elapsed and clearly an ineligible time to file a federal petition.  Under Supreme Court law, AEDPA does not apply to cases alleging “factual innocence” if the evidence warrants an exception by presentation of “new evidence.”  There is no “new evidence” here-just a credibility argument.  Obviously the jury rejected it.

The panel cites all the elements of the Warden’s arguments and rebuts every one.   The officers testified the arrest occurred at 12:30 a.m. The McNutts, said it was 7:30. p.m. Oh, just a disagreement on time except it gets dark later at night.  One of the witnesses who testified  at the hearing had been convicted of several felonies.  No problem, said the panel, he could still tell the truth.  It took petitioner 2 years to put this federal  case together and it is no different than the allegations in the state petitions.  And most importantly, said the panel, Larsen pled “not guilty.”

Time for en banc.

Comment: this is another example of record manipulation.  Larsen alleged ineffective counsel on 3 grounds from the beginning.  All he had to do was assert the reasons for ineffective counsel within the one year period in state court. Instead, he waited 6 years and filed nothing until then. He could have proceeded pro per or sought appointed counsel.  The  panel says nothing about counsel nor cites any record of the trial or appeal in state court. The petition was untimely and Larsen had no grounds for factual innocence any different than at trial.