NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRENCE EDWIN PRINCE, No. 16-55418

Petitioner-Appellant, D.C. No. 2:15-cv-04222-R-DTB v.

JOE A. LIZARRAGA, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted October 19, 2017 San Francisco, California

Before: CALLAHAN and BEA, Circuit Judges, and RESTANI,** Judge.

Petitioner Terrence Prince challenges his 1982 conviction and sentence for

first degree murder, claiming that the state suppressed materially exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court

dismissed Prince’s action for lack of jurisdiction. Because Prince failed first to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. apply to this court for leave to file a second or successive petition for habeas relief

in the district court, see 28 U.S.C. § 2244(b), we AFFIRM.

1. In 1982, a jury convicted Prince of first-degree murder and possession of

a concealed firearm by a convicted felon. Prince was one of two or three men who

broke into a restaurant and check-cashing business in an attempted robbery gone

awry. Over the course of a minute, Prince shot multiple times at the restaurant

owner, Bruce Horton. Horton died from his wounds and Prince was charged with

Horton’s murder. Prince is currently serving a life sentence without the possibility

of parole.

Substantial evidence inculpated Prince: multiple eyewitnesses positively

identified him; Prince had previously been photographed brandishing the type of

gun used to kill Horton; eyewitness descriptions of Prince’s gun were consistent

with the type of gun used to kill Horton; Prince had a jacket at his residence that

eyewitnesses testified was of the type he wore to commit the crime; Prince brought

his co-conspirator to the hospital to receive treatment for gunshot wounds shortly

after the crime; Prince appeared flustered and paranoid at the hospital; Prince did

not wait for his co-conspirator to be treated but instead left hurriedly; Prince never

reported his co-conspirator’s injuries to the police; and Prince’s testimony at trial

contradicted the testimony of multiple witnesses in material ways.

2 2. The California Court of Appeal affirmed Prince’s conviction and sentence

and the California Supreme Court denied review in 1984. In 1989, Prince filed a

petition for a writ of habeas corpus in federal district court, which the court

dismissed without prejudice for failure to exhaust state-court remedies. In 1991,

Prince refiled his petition, which the district court dismissed on the merits. The

Ninth Circuit affirmed the dismissal in 1994.

In 2007, Prince filed a second state habeas petition. Over the course of that

proceeding, the Los Angeles County District Attorney’s Office turned over Officer

Robert Peloquin’s notes of interviews related to the robbery-murder. The notes

were the same as the notes the State disclosed to Prince before his trial, except that

now—twenty-seven years later—they included an additional page. The previously

undisclosed page was an account of Peloquin’s interview with one Nelida Walsh.

Walsh was standing across the street from the restaurant at the time of the crime

when she heard gunshots. She saw a man armed with a shotgun or rifle standing in

the doorway of the restaurant. Walsh’s description of the man conflicted with the

eyewitness descriptions of Prince. Walsh provided the same account to Detective

Charles Worthen, but Worthen did not document Walsh’s existence or her

statements in any official reports.1

1 The California Superior Court determined that defense counsel was apprised of some of the information provided by Walsh. For example, Detective Worthen testified that the shooter wore a red and white striped shirt—a detail that came

3 In 2013, the state superior court granted Prince’s habeas petition based on

the Walsh statement, concluding it was Brady material, but the California Court of

Appeal reversed in 2015, and the California Supreme Court denied review. Later

in 2015, Prince filed a federal habeas petition in district court asserting a Brady

claim based on the Walsh evidence. The court dismissed the case for lack of

jurisdiction because it held that the petition was second or successive under 28

U.S.C. § 2244(b), and therefore Prince could invoke the district court’s jurisdiction

only with the approval of this court.

3. Prince argues that his petition is not second or successive because he filed

his first federal habeas petition before § 2244(b) was enacted as part of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). He reasons that

applying AEDPA’s second-or-successive bar would amount to an impermissible

retroactive application of AEDPA. The district court rejected this argument, as do

we.

We have already considered and decided the issue that Prince raises in his

petition. In United States v. Villa-Gonzalez, 208 F.3d 1160, 1163–64 (9th Cir.

2000), we explained that applying AEDPA to second-in-time habeas petitions,

from Walsh. In addition, some of the information Walsh provided to police was included in a preliminary investigation report and in Williams’ arrest report. It is unclear from the record what information was, in fact, included in any official documents disclosed to defense counsel at trial.

4 where the initial habeas petition was filed pre-AEDPA, does not constitute

retroactive application of AEDPA, let alone impermissible retroactive application.

This is because AEDPA’s enactment does not “impair” a petitioner’s right to file a

second-in-time habeas petition, regardless of when he filed his initial petition. See

id. at 1163. The fact that the standard for bringing a second or successive petition

was different at the time of the first habeas filing “does not make the application of

the new [AEDPA] provisions to his most recent motion retroactive.” Id. Prince’s

argument to the contrary is therefore foreclosed.

Moreover, for the reasons set forth in our concurrently filed published

opinion, Brown v. Muniz, No. 16-15442, --- F.3d ---- (9th Cir. 2018), Prince’s

petition is second or successive notwithstanding his ignorance of the Brady

material at the time he filed his initial federal petition. Because the factual

predicate for Prince’s Brady claim—the State’s failure to turn over the alleged

exculpatory evidence—accrued before Prince filed his initial petition, AEDPA

§ 2244(b)(2)(B) governs his action. It is therefore second or successive, meaning

Prince must first apply to this court for permission to have his petition heard in the

district court. 28 U.S.C. § 2244(b)(3). He has not done so.

AFFIRMED.

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