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. 22-99012

Petitioner-Appellant, D.C. No. 2:22-cv-01935-SMM

v. OPINION

DAVID SHINN, Director, Arizona Department of Corrections, Rehabilitation and Reentry; STACI IBARRA, Warden, Eyman Prison; RODNEY CARR, Warden, Florence Prison,

Respondents.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding

Submitted November 15, 2022* San Francisco, California

Before: Jacqueline H. Nguyen, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.

Per Curiam Opinion

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1

PER CURIAM:

Murray Hooper is scheduled to be executed in Arizona on Wednesday,

November 16, 2022. On November 15, 2022, Hooper filed a second-in-time

habeas petition in the district court under 28 U.S.C. § 2254, alleging a freestanding

innocence claim, violations under Brady v. Maryland, 373 U.S. 83 (1963), and

Napue v. Illinois, 360 U.S. 264 (1959), and a due process violation based on the

surviving victim’s unreliable pretrial identification. The district court dismissed

the Brady and Napue claims, finding that they were unauthorized second or

successive claims. See 28 U.S.C. § 2244(b)(3)(A). It also dismissed the due

process claim, finding that it had been presented in Hooper’s first federal petition.

The district court determined that the actual innocence claim was not cognizable in

habeas, and alternatively, even if it were, Hooper failed to meet the demanding

standard for freestanding actual innocence claims.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the

dismissal of the due process and actual innocence claims. We agree with the

district court that the Brady and Napue claims are second or successive claims

subject to § 2244(b)(2). We construe Hooper’s notice of appeal as an application

for authorization to file a second or successive petition as to those claims. So

construed, we deny Hooper’s request to file a second or successive petition

2 because he has failed to satisfy the stringent standards under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244(b)(2).

I

Hooper was hired to murder Pat Redmond. On New Year’s Eve 1980,

Redmond, Marilyn Redmond (Redmond’s wife), and Helen Phelps (Marilyn’s

mother) were home preparing for a festive dinner when Hooper and his

coconspirators forced their way into the home at gunpoint. They demanded

jewelry, money, and guns. They herded Redmond, Marilyn, and Helen into the

main bedroom, forced them to lie face down on the bed, and bound and gagged

them. One or all the intruders shot each victim in the head, and one slashed

Redmond’s throat with a knife. Redmond and Helen died, but Marilyn

miraculously survived.1

In 1982, Hooper was convicted on eleven felony counts, including two

counts of first-degree murder. See Hooper v. Shinn, 985 F.3d 594, 602 (9th Cir.

2021). The court sentenced Hooper to death for the two first-degree murders. Id.

at 610. Hooper filed his first federal habeas petition in 1998. Id. at 613. The

1 We provide a brief summary of Hooper’s crimes, as we described them in detail in our prior decision denying Hooper’s habeas petition. See Hooper v. Shinn, 985 F.3d 594, 599–601 (9th Cir. 2021). We note that we previously denied Hooper’s application for leave to file a second or successive petition that would have alleged violations under Brady. Hooper v. Shinn, 859 F. App’x 79 (2021).

3 district court denied the petition, and we affirmed. Id. at 600. The Supreme Court

denied certiorari. Hooper v. Shinn, 142 S. Ct. 1376 (2022).

After the Arizona Supreme Court issued a warrant of execution, setting an

execution date of November 16, 2022, Hooper filed his sixth and seventh petitions

for post-conviction relief (“PCR”) in the Arizona Superior Court.2 His sixth PCR

petition stated a claim for actual innocence based on a report by Dr. Geoffrey

Loftus, an expert in human perception and memory. According to Hooper,

because Dr. Loftus’s opinions would have undermined Marilyn’s key eyewitness

testimony, no reasonable factfinder would have found him guilty of the murders.

Hooper’s seventh PCR petition asserted violations under Brady and Napue,

and a due process violation based on Marilyn’s unreliable pretrial identification.

All the claims in his seventh PCR petition rested on a single piece of allegedly

“new” evidence: Marilyn, contrary to her trial testimony and the testimony of

officers, had been shown a photo lineup of Hooper and was unable to identify him

before she identified Hooper in a live lineup. According to Hooper, this “new”

evidence exists based on a single statement made by the Maricopa County

Attorney’s Office in its October 28, 2022, letter to the Arizona Board of Executive

Clemency (“State’s Letter”): “On February 21, 1981, Hooper and Bracey were

2 “From 1986 through 2017, Hooper filed five state post-conviction petitions.” Hooper, 985 F.3d at 612.

4 arrested in Chicago. Marilyn was flown out and participated in live line ups with

them. She had previously been unable to pick them out of a paper lineup.”

(emphasis added).3

During the clemency hearing on November 3, 2022, Hooper argued that the

State’s reference to a “paper lineup” showed that there was a

never-before-disclosed photo lineup in which Marilyn had failed to identify

Hooper. The prosecutor explained that there was no evidence that Marilyn had

seen a photo lineup of Hooper and that to the extent the State’s Letter suggested

otherwise, it was an inadvertent misstatement. The prosecutor explained that

Marilyn had been shown sketches of a white man and a black man who was later

identified as William Bracy (Hooper’s co-defendant), but Marilyn could not

identify the subjects of those drawings. Marilyn had also failed to identify Ed

McCall (the third murderer) in two photo lineups. The prosecutor explained that

those were the “paper lineup[s]” referenced in the State’s Letter and that the State

had no evidence that Marilyn had ever seen a photo of Hooper before identifying

him in the live lineup. In its response to Hooper’s seventh PCR petition, the State

maintained its position expressed at the clemency hearing.4

3 The State submitted a revised letter to the Board on November 1, 2022, but this quoted language remained unchanged. 4 On November 3, 2022, the Arizona Board of Executive Clemency unanimously voted to deny relief.

5 The Superior Court consolidated the sixth and seventh PCR petitions and

held an evidentiary hearing on November 10, 2022. As relevant here, Jeffrey

Sparks, attorney for the State, avowed at the evidentiary hearing “that victim

Marilyn Redmond was not shown a printed lineup prior to her live identification of

[Hooper], that no evidence of any such lineup exists, and that counsel Sparks had

personally verified the explanation given by the prosecutor to the Arizona Board of

Executive Clemency.” Dr. Loftus testified at the evidentiary hearing. As found by

the Superior Court, Dr. Loftus testified that “much of the research forming the

foundation of [Hooper’s] current [innocence] claim was conducted decades ago,”

and “much of the research cited in his report was developed in the 1990s and

2000s.” The Superior Court also found that Dr. Loftus’s report was “cumulative to

that which [Hooper] presented at trial and would not have substantially

undermined Marilyn Redmond’s testimony to such an extent that the judgment

would have changed.”5

5 While we are likely required to give deference to the Superior Court’s findings regarding Dr. Loftus, see 28 U.S.C. § 2254(e)(1), Hooper’s actual innocence claim based on Dr. Loftus’s report fails even without any deference, as discussed below.

6 On November 14, 2022, the Superior Court issued its ruling dismissing all

of Hooper’s claims.6 In doing so, it expressly credited the State’s explanation that

the statement at issue in the State’s Letter was a misstatement:

This Court accepts the State’s explanation of the misstatement, the State’s avowal that [Hooper] is in possession of the same materials used by the State to prepare its letter opposing clemency, and the State’s avowal that there is no evidence that Marilyn Redmond was shown a printed lineup including [Hooper] before she identified him in person.

Hooper filed a petition for review in the Arizona Supreme Court. On

November 14, 2022, the Arizona Supreme Court granted review but denied relief.

The Arizona Supreme Court found “that [Hooper’s] claim the State has failed to

disclose a paper lineup, including allegations of misconduct and unethical conduct

has no evidentiary support and no basis in fact.” In reaching that finding, the

Arizona Supreme Court relied in part on the prosecutor’s retraction and

explanation at the clemency hearing.

Hooper then filed the instant second-in-time habeas petition in federal

district court, reasserting the claims alleged in his sixth and seventh state PCR

petitions. After finding that the Brady and Napue claims were second or

6 The Superior Court also denied Hooper’s motion for reconsideration of the court’s denial of his request for discovery. Hooper had asked that “he be allowed complete access to the State’s file and that he be able to interview the two prosecutors responsible for drafting a letter in opposition to his request for clemency.” The Superior Court denied the motion for reconsideration based on its acceptance of attorney Sparks’s avowal at the evidentiary hearing.

7 successive and the due process claim had been presented in his first petition, the

district court dismissed those claims. See Brown v. Muniz, 889 F.3d 661, 667 (9th

Cir. 2018) (“If the petition is second or successive, then the district court lacks

jurisdiction and must dismiss the petition unless and until the court of appeals

grants an application to file it.” (citing 28 U.S.C. § 2244(b)(3)(A))). The district

court also dismissed the actual innocence claim, finding that it was not cognizable

in habeas, and alternatively, even if it were, that Hooper failed to meet the

demanding actual innocence standard. The district court issued a certificate of

appealability (COA) on the Brady, Napue, and due process claims. Hooper

immediately appealed.

We treat Hooper’s notice of appeal as a request for a certificate of

appealability (COA) on the actual innocence claim, see Jones v. Ryan, 733 F.3d

825, 832 n.3 (9th Cir. 2013) (construing an appeal as an application for a COA),

and we grant Hooper a COA on the actual innocence claim.7 Because we hold that

7 “A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the COA stage, the only question is whether the applicant has shown that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). Under the circumstances, we believe that, as to the actual innocence claim, “jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id.

8 Hooper’s Brady and Napue claims are second or successive, we also treat his

appeal as a request for authorization to file a second or successive habeas petition.

See id. at 840–41 (construing an appeal as a request for authorization to file a

second or successive petition).

II

A

“We review a district court’s dismissal of a habeas petition as second or

successive de novo.” Brown, 889 F.3d at 666. “Our review of an application to

file a second or successive habeas petition is governed by the standard set forth in

AEDPA, as is our determination of whether a second-in-time habeas petition is

second or successive under AEDPA.” Id. at 666–67.

B

We first address Hooper’s due process claim based on Marilyn’s supposed

unreliable pretrial identification. We agree with the district court that this claim is

barred because Hooper presented it in his first federal habeas petition.

“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). “[A] claim ‘is successive if the basic thrust or gravamen

of the legal claim is the same, regardless of whether the basic claim is supported by

new and different legal arguments . . . [or] proved by different factual

9 allegations.’” Gulbrandson v. Ryan, 738 F.3d 976, 997 (9th Cir. 2013) (ellipsis

and second alteration in original) (quoting Babbitt v. Woodford, 177 F.3d 744, 746

(9th Cir. 1999)).

Hooper’s first petition asserted that he “was denied due process of law in

violation of the Fourteenth Amendment because the pretrial identification by

Marilyn Redmond was unduly suggestive.” His present claim has the same “basic

thrust or gravamen”: “Marilyn Redmond’s pretrial identification was unduly

suggestive, inadmissible, and tainted her in court identification of Mr. Hooper such

that it should have been precluded.” That his present claim is based on new

evidence is irrelevant. See Babbitt, 177 F.3d at 746 (“[W]e will not consider new

factual grounds in support of the same legal claim that was previously presented.”).

Because Hooper’s due process claim was presented in his first petition, we

affirm the district court’s dismissal of the claim. See 28 U.S.C. § 2244(b)(1).

C

We also agree with the district court that Hooper’s Brady and Napue claims

are second or successive for purposes of federal court review. In this circuit, “[i]t

is now understood that a federal habeas petition is second or successive if the facts

underlying the claim occurred by the time of the initial petition, and if the petition

challenges the same state court judgment as the initial petition.” Brown, 889 F.3d

10 at 667 (citations omitted).8 “[A] factual predicate accrues at the time the

constitutional claim ripens—i.e., when the constitutional violation occurs.” Id. at

672.

Hooper’s Brady and Napue claims are based on the alleged “new” factual

predicate that Marilyn was shown a photo lineup of Hooper. But the only evidence

supporting that alleged fact is the statement in the State’s Letter, which the

Superior Court found was a misstatement and which the Arizona Supreme Court

found had “no evidentiary support and no basis in fact.” We must accept those

findings, unless Hooper can show that they are wrong by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1); cf. King v. Trujillo, 638 F.3d 726, 730–31

(9th Cir. 2011) (per curiam) (applying § 2254(e)(1), which requires us to presume

that a state court’s factual finding is correct unless the applicant can rebut it by

clear and convincing evidence, in determining whether to permit the applicant to

file a second or successive petition). Hooper has failed to do so.9 Because the

8 Below Hooper did not cite or discuss Brown in arguing that his petition was not second or successive. As a three-judge panel we are bound by Brown. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). As discussed below, Brown compels the conclusion that Hooper’s Brady and Napue claims are second or successive. 9 Hooper tries to rebut the state courts’ findings by arguing that it was improper for the courts to rely on Sparks’s avowal at the evidentiary hearing. But the Arizona Supreme Court did not solely rely on Sparks’s avowal. It also relied

11 factual predicate supporting Hooper’s Brady and Napue claims does not exist, his

claims fail.

But even were we to assume that the factual predicate exists, it existed

before Hooper’s trial, well before the time Hooper filed his first federal habeas

petition in 1998.10 And the alleged constitutional violations based on that factual

predicate occurred before 1998. The alleged Brady violation—the State’s

suppression of a photo lineup of Hooper—occurred before Hooper’s trial. The

alleged Napue violation—the State’s knowing use of false testimony—occurred

during trial. Thus, Hooper’s Brady and Napue claims and the facts underlying

them all accrued before he filed his first petition. His Brady and Napue claims are

therefore second or successive.

D

Turning to Hooper’s actual innocence claim, we agree with the district

court’s alternative holding: assuming it is a cognizable habeas claim,11 Hooper

on the prosecutor’s retraction at the clemency hearing and Hooper’s failure to present any evidence that the statement was not a mistake. 10 That Hooper became aware of the fact recently is irrelevant. See Brown, 889 F.3d at 672–73 (rejecting argument that factual predicate accrues at the time the petitioner becomes aware of it). 11 See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[The Supreme Court has] not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”).

12 cannot meet the demanding standard. “The standard for establishing a freestanding

claim of actual innocence is extraordinarily high and the showing for a successful

claim would have to be truly persuasive.” Jones v. Taylor, 763 F.3d 1242, 1246

(9th Cir. 2014) (cleaned up) (citation omitted).

Hooper’s claim appears to rest primarily on Dr. Loftus’s recent report and

other “evidence developed through the years.” He claims that this evidence would

cast doubt on the State’s case, including by undermining Marilyn’s identification

of Hooper as one of the murderers. But “[e]vidence that merely undercuts trial

testimony or casts doubt on the petitioner’s guilt, but does not affirmatively prove

innocence, is insufficient to merit relief on a freestanding claim of actual

innocence.” Jones, 763 F.3d at 1251. And, as noted in our prior opinion denying

Hooper’s petition, the evidence was overwhelming and extended beyond Marilyn’s

testimony. For example, Nina Marie Louie testified that she saw Hooper in

Phoenix on New Year’s Eve and, the next day, one of Hooper’s coconspirators

confessed to her that Hooper was one of the murderers. Hooper, 985 F.3d at 603–

04. An officer also testified that Valinda Lee Harper called the police the day after

the murders and implicated Hooper in the murders. Id. at 604. George

Campagnoni testified that Hooper was in Phoenix on New Year’s Eve, Hooper and

his coconspirators possessed property that looked like property owned by

Redmond, and he drove Hooper and another coconspirator to the airport around

13 midnight on New Year’s Eve and they had airline tickets bearing false names. Id.

at 604. Arnold Merrill also testified that Hooper was in Phoenix on New Year’s

Eve, Hooper and his coconspirators had several items that might have come from

the Redmond home, and one of the coconspirators confessed to Merrill that Hooper

was one of the murderers. Id. at 605.

The evidence Hooper points to does not affirmatively prove his innocence.

Given the overwhelming evidence implicating Hooper as the murderer, he fails to

show actual innocence.

III

As discussed above, Hooper’s Brady and Napue claims are second or

successive. Thus, we next discuss whether they meet the requirements under

§ 2244(b)(2)(B).

A

Because Hooper does not argue that his claims rely on a new rule of

constitutional law, we may grant Hooper’s application only if he makes a “prima

facie showing,” 28 U.S.C. § 2244(b)(3)(C), that his petition would satisfy the

requirements in § 2244(b)(2)(B):

(i) the factual predicate for the claim[s] could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim[s], if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable

14 factfinder would have found the applicant guilty of the underlying offense.

“In other words, [Hooper] must make a prima facie showing his claim (1) is

based on newly discovered evidence and (2) establishes that he is actually innocent

of the crimes alleged.” Bible v. Schriro, 651 F.3d 1060, 1064 (9th Cir. 2011) (per

curiam); see also King, 638 F.3d at 729 (explaining that § 2244(b)(2) has been

interpreted to require an actual innocence standard). A “prima facie showing” is “a

sufficient showing of possible merit to warrant a fuller exploration by the district

court.” Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997) (per curiam)

(quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).

B

As discussed above, Hooper’s Brady and Napue claims all hinge on the

alleged “new” factual predicate that Marilyn was shown a photo lineup of Hooper.

But the only evidence supporting that alleged fact is the lone statement in the

State’s Letter, which was a misstatement, unsupported by any evidence. Thus,

Hooper offers no newly discovered evidence to support the alleged factual

predicate for his Brady and Napue claims. In other words, Hooper cannot make a

prima facie showing that he meets the stringent standards under § 2244(b)(2)(B)

because he fails to show that the alleged new evidence—that Marilyn saw a photo

lineup of Hooper—even exists. See Woratzeck, 118 F.3d at 651 (“Woratzeck must

15 make a prima facie showing that this evidence exists, and that it would exonerate

him under the stringent standard of section 2244(b)(2).”).

IV

We AFFIRM the district court. It properly dismissed Hooper’s due process

and actual innocence claims. It also correctly determined that the Brady and

Napue claims are second or successive subject to § 2244(b)(2). Because Hooper

has failed to meet the requirements under § 2244(b)(2)(B) as to his Brady and

Napue claims, his petition, which we construe as a request for leave to file a

second or successive petition, is DENIED.12 For the foregoing reasons, we also

deny Hooper’s motion for a stay of execution.

12 “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244 (b)(3)(E).

16