1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6

KENNETH HUTCHINS,

7 Case No. 17-cv-03921-BLF Petitioner, 8 ORDER DENYING PETITIONER’S v. MOTION TO VACATE COURT’S FINAL 9 ORDER AND JUDGMENT JOE A. LIZARRAGA, Warden, 10 [Re: ECF 30] Respondent. 11

12 13 Before the Court for a second time is Petitioner Kenneth Hutchins’ Motion to Vacate the 14 Court’s Final Order and Judgment, brought under Federal Rules of Civil Procedure 59(e) and 15 60(b). See Mot., ECF 30. Petitioner filed the motion on April 27, 2020, asserting that new 16 evidence of actual innocence warrants relief from the Court’s adverse habeas ruling and entry of 17 judgment on March 30, 2020. See id. Respondent filed opposition. See Opp., ECF 31. The 18 Court deemed the motion appropriate for decision without oral argument, determined that it raises 19 a new claim for habeas relief based on actual innocence, and denied it as an unauthorized second 20 or successive habeas petition. See Order Den. Mot., ECF 32. 21 Petitioner filed a timely notice of appeal as to both the judgment and the post-judgment 22 order denying his motion to vacate. See Ninth Cir. Order, ECF 35. The United States Court of 23 Appeals for the Ninth Circuit remanded the case, noting that “[s]hortly after the district court 24 entered its post-judgment order, the United States Supreme Court issued its opinion in Banister v. 25 Davis, __ U.S. __, 140 S. Ct. 1698 (2020), holding that a Rule 59(e) motion is not a second or 26 successive habeas petition.” Id. The remand is for the limited purpose of allowing this Court to 27 reconsider Petitioner’s post-judgment motion. See id. 1 I. BACKGROUND 2 A California state court jury convicted Petitioner of several sex offenses against his eight- 3 year-old great niece, Zoe,1 and possession of child pornography. See People v. Hutchins, No. 4 A141037, 2016 WL 369800, at *1 (Cal. Ct. App. Jan. 29, 2016). He was sentenced to a prison 5 term of 55 years to life, plus 8 years and 8 months. See id. After filing an unsuccessful direct 6 appeal and petition for review, Petitioner filed a counseled federal habeas petition to commence 7 the present action. See Pet., ECF 1. The petition asserts four claims relating to the admission of 8 evidence, ineffective assistance of counsel, failure to properly instruct the jury, and prosecutorial 9 misconduct. See id. at 10-21. This Court denied the petition and entered judgment against 10 Petitioner on March 30, 2020. See Order Denying Pet., ECF 28; Judgment, ECF 29. 11 Petitioner thereafter filed the present motion, asserting that relief from the Court’s habeas 12 denial and entry of judgment is warranted under Rules 59(e) and 60(b). The motion asserts that 13 new evidence of actual innocence has been unearthed. The first piece of purportedly new 14 evidence is a transcript of a hearing conducted by the state superior court in October 2019 – five 15 months before this Court entered judgment – regarding the prosecution’s post-conviction motion 16 for additional victim restitution. See Fahn Decl. ¶ 3 & Exh. 1, ECF 30-1. Petitioner opposed the 17 motion and testified that he had not molested Zoe. See id. The superior court imposed the 18 requested additional restitution. See Fahn Decl. ¶ 4. Petitioner nonetheless contends that the 19 hearing transcript is significant because it contains his only sworn testimony that he did not molest 20 Zoe, as he did not testify at trial. See Mot. at 5, ECF 30. 21 The second piece of purportedly new evidence is information that Petitioner suffers from a 22 neurological condition. See Fahn Decl. ¶ 9. Petitioner’s counsel in the present action, Meredith 23 Fahn, obtained that information from attorney Barry Karl, who was appointed in 2019 to represent 24 Petitioner as to his appeal of the superior court’s order for additional restitution and as to state 25 habeas proceedings. See Fahn Decl. ¶¶ 7-9. On April 24, 2020, Mr. Karl told Ms. Fahn that 26 Petitioner was treated from 2007 through his arrest in 2013 for a neurological condition resulting 27 1 from a head injury; Petitioner took medication; and Petitioner suffered headaches and difficulty 2 with memory. See id. ¶ 9. Petitioner contends that his neurological condition could explain why 3 he shaved off his body hair after the prosecution obtained a court order to take a hair sample for 4 comparison with a human hair found on Zoe’s genital area. See Mot. at 6, ECF 30. He also 5 contends that his neurological condition could explain why he did not testify at trial and why he 6 had tapes containing child pornography in his home. See id. 7 The third piece of purportedly new evidence is a transcript of the police station interview 8 of Petitioner on January 16, 2013, the date of his arrest. See Fahn Decl. ¶ 12. Mr. Karl obtained 9 the transcript from the file of Petitioner’s trial counsel, and emailed it to Ms. Fahn, who had not 10 previously seen the transcript. See id. According to Petitioner, the transcript “relays what appears 11 to be genuine cluelessness as to why Mr. Hutchins was roused from his bed and brought to the 12 station, as well as his utter willingness to cooperate and apparent lack of anything to hide.” Mot. 13 at 13, ECF 30. 14 Based on this evidence, Petitioner asks the Court to vacate its order denying his habeas 15 petition, vacate the judgment, and impose a stay of proceedings pending conclusion of state habeas 16 proceedings. The Court initially denied the motion as a second or successive habeas petition, as it 17 raises an entirely new claim of actual innocence. See Order Den. Mot., ECF 32. With respect to 18 Petitioner’s request for relief under Rule 59(e), the Court relied on Ninth Circuit authority holding 19 that “a Rule 59(e) motion that raises entirely new claims should be construed as a second or 20 successive habeas petition subject to AEDPA’s restrictions.” Rishor v. Ferguson, 822 F.3d 482, 21 492 (9th Cir. 2016). With respect to Petitioner’s request for relief under Rule 60(b), the Court 22 relied on Supreme Court authority that using Rule 60(b) to present “new evidence” “would 23 impermissibly circumvent the requirement that a successive habeas petition be precertified by the 24 court of appeals as falling within the exception to the successive-petition bar.” Gonzalez v. 25 Crosby, 545 U.S. 524, 532 (2005). 26 As noted above, after this Court denied Petitioner’s motion, the Supreme Court held that a 27 Rule 59(e) motion may not be construed as a second or successive habeas petition. See Banister, 1 reconsideration. Nothing in Bannister or the Ninth Circuit’s remand suggests that this Court’s 2 denial of Petitioner’s request for relief under Rule 60(b) was improper. To the contrary, Bannister 3 distinguishes Rule 59(e) motions from Rule 60(b) motions and explains why “[a] Rule 59(e) 4 motion, unlike a Rule 60(b) motion, does not count as a second or successive habeas application.” 5 Bannister, 140 S. Ct. at 1711. This Court therefore reconsiders Petitioner’s motion only to the 6 extent it seeks relief under Rule 59(e). 7 II. LEGAL STANDARD 8 “Rule 59(e) allows a litigant to file a ‘motion to alter or amend a judgment.’” Bannister, 9 140 S. Ct. at 1703. The purpose of the rule is to allow the district court “the chance to rectify its 10 own mistakes in the period immediately following its decision.” Id. (quotation marks and citation 11 omitted). “In keeping with that corrective function,” federal courts generally use Rule 59(e) only 12 to address “matters properly encompassed in a decision on the merits,” and “will not address new 13 arguments or evidence that the moving party could have raised before the decision issued.” Id. 14 (quotation marks and citation omitted). “The motion is therefore tightly tied to the underlying 15 judgment.” Id. 16 “Since specific grounds for a motion to amend or alter are not listed in the rule, the district 17 court enjoys considerable discretion in granting or denying the motion.” Allstate Ins. Co. v. 18 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (quotation marks and citation omitted). “In general, 19 there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is 20 necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such 21 motion is necessary to present newly discovered or previously unavailable evidence; (3) if such 22 motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 23 intervening change in controlling law.” Id. 24 A prisoner may use Rule 59(e) to seek relief from denial of a habeas petition, but “only to 25 request reconsideration of matters properly encompassed in the challenged judgment.” Bannister, 26 140 S. Ct. at 1708 (quotation marks and citation omitted). “And ‘reconsideration’ means just that: 27 Courts will not entertain arguments that could have been but were not raised before the just-issued 1 maintains a prisoner’s incentives to consolidate all of his claims in his initial application.” Id. 2 “The motion’s disposition then merges into the final judgment,” in that manner helping to 3 “produce a single final judgment for appeal.” Id. 4 III. DISCUSSION 5 Petitioner asserts that relief is necessary to allow consideration of newly discovered 6 evidence, discussed above, that was previously unavailable. He also asserts that relief is necessary 7 to prevent manifest injustice. He asks the Court to vacate its order denying his habeas petition, 8 vacate the judgment, and enter a King/Kelly2 stay pending completion of state habeas proceedings. 9 In opposition, the Government argues that the proffered evidence is not newly discovered or 10 previously unavailable. The Government also argues that Petitioner has not demonstrated that 11 relief is required to prevent manifest injustice. 12 The Court agrees with the Government that the proffered evidence does not qualify as 13 newly discovered or previously unavailable. With respect to the transcripts of the October 2019 14 restitution hearing and the January 2013 police interview, both could have been obtained by 15 Petitioner’s counsel prior to entry of judgment in this case. Moreover, the information contained 16 in those transcripts – that Petitioner denied molesting Zoe – is not new. Petitioner pled not guilty 17 and pursued a trial strategy of actual innocence. That he took the same position during his police 18 interview and a post-conviction restitution hearing proves nothing. 19 Moreover, while Petitioner’s neurological condition apparently came as news to his current 20 habeas counsel, Petitioner himself was aware of his condition, for which he obtained medical 21 treatment from 2007-2013. See Fahn Decl. ¶ 9, ECF 30-1. The transcript of Petitioner’s police 22 interview on January 16, 2013, the date of his arrest, reflects that Petitioner told the police about 23 his head injury, medication, headaches, and memory issues. See Fahn Decl. Exh. 4, Tr. 23:7- 24 24:16, ECF 30-1. Petitioner’s trial counsel’s file included an investigator’s memorandum 25 documenting an interview with Petitioner’s mother, Barbara Hutchins, in which she disclosed 26 Petitioner’s head injury, medications, headaches, and memory issues. See Fahn Decl. ¶ 10 & Exh. 27 1 3, Memo., ECF 30-1. Evidence of Petitioner’s neurological condition therefore could have been 2 presented to this Court prior to entry of judgment. 3 Even if the evidence of Petitioner’s neurological condition were newly discovered or 4 previously unavailable, it would not warrant relief from judgment. As the Government points out, 5 Petitioner has never denied knowing or remembering what happened between him and his great 6 niece. Petitioner suggests that his neurological condition could explain why he shaved off his 7 body hair, did not testify at trial, and had tapes containing child pornography in his home. 8 However, it is entirely unclear how a condition causing headaches and memory issues could have 9 caused the conduct at issue. 10 Finally, Petitioner has failed to show that Rule 59(e) relief is necessary to prevent manifest 11 injustice. Petitioner argues that the proffered evidence, and other evidence that may result from 12 investigation by his state habeas counsel, may support a new claim of actual innocence. He asks 13 the Court to vacate its order denying habeas relief, vacate the judgment, and grant a King/Kelly 14 stay. In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), and Kelly v. Small, 315 F.3d 1063 (9th Cir. 15 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), the Ninth 16 Circuit articulated a three-step procedure for addressing mixed habeas petitions. That procedure 17 permits “(1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its 18 discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the 19 petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) once the 20 claims have been exhausted in state court, the petitioner to return to federal court and amends his 21 federal petition to include the newly-exhausted claims.” King, 564 F.3d at 1139. The King/Kelly 22 procedure simply does not fit the posture of this case, in which the habeas petition has been denied 23 and judgment has been entered. Petitioner has not cited any case in which a district court granted 24 a Rule 59(e) motion for the purpose of imposing an immediate King/Kelly stay to allow 25 development of a potential new habeas claim. Assuming a King/Kelly stay could be used for that 26 purpose, Petitioner has not demonstrated a colorable claim of actual innocence on this record, nor 27 has he shown that such a claim is likely to result from the state habeas proceedings. Thus, he has 1 In conclusion, after considering Petitioner’s motion on the merits, the Court finds that 2 || Petitioner has failed to demonstrate that relief is warranted under Rule 59(e). Specifically, the 3 || Court finds that Petitioner has failed to show that relief is necessary either to allow consideration 4 || of newly discovered evidence that was previously unavailable, or to prevent manifest injustice. 5 IV. ORDER 6 Petitioner’s Motion to Vacate the Court’s Final Order and Judgment is DENIED. Loy hen tr 8 || Dated: February 1, 2021

BETH LABSON FREEMAN

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