Filed April 19, 2000
Amended April 10, 2001
CRIMINAL LAW
USA v ZUNO ARCE-No. 9856770 - 04/19/00
CRIMINAL LAWUSA v ZUNO-ARCE-No. 9856770v2 - 04/10/2001-AMENDED
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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 98-56770
Plaintiff-Appellee,
D.C. No.
v. CV-98-02930-ER
CR-87-00422-ER
RUBEN ZUNO-ARCE,
Defendant-Appellant. ORDER
Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding
Argued and Submitted
February 15, 2000--Pasadena, California
Filed April 19, 2000
Amended April 10, 2001
Before: James R. Browning, Alfred T. Goodwin, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Browning
_________________________________________________________________
COUNSEL
Kenneth M. Miller, Law Office of Kenneth M. Miller, Santa
Ana, California, for the defendant-appellant.
Lawrence Ng, Assistant United States Attorney, Criminal
Division, Los Angeles, California, for the plaintiff-appellee.
_________________________________________________________________
4483
ORDER
The opinion in United States v. Zuno-Arce, 209 F.3d 1095
(9th Cir. 2000), decided on April 19, 2000, is amended to
include the attached dissent.
_________________________________________________________________
OPINION
GRABER, Circuit Judge:
Defendant Ruben Zuno-Arce is in custody following his
1992 conviction stemming from the kidnapping and murder of
DEA Agent Enrique Camarena and his pilot, Alfredo Zavala-
Avelar. Defendant appeals the district court's denial of his
motion to vacate, set aside, or correct sentence under 28
U.S.C. S 2255. On de novo review, see United States v. Span,
75 F.3d 1383, 1386 (9th Cir. 1996), we affirm.
Defendant was a member of a drug cartel centered in Gua-
dalajara, Jalisco, Mexico. In 1990 he was tried, along with
several co-defendants, on various charges arising from the
kidnapping and murder of Camarena and Zavala-Avelar.
Defendant was convicted, in part because of the testimony of
Hector Cervantes-Santos, an informant who testified at the
trial against several members of the cartel. However, the dis-
trict court granted Defendant a new trial because of an inap-
propriate comment during the government's closing
argument. This court affirmed the grant of a new trial in an
unpublished opinion. See United States v. Zuno-Arce, 958
F.2d 380 (9th Cir. 1992).
On retrial, in 1992, Defendant was found guilty of conspir-
ing to commit violent crimes in aid of a racketeering enter-
prise, 18 U.S.C. S 1959(a)(5); committing violent crimes in
aid of a racketeering enterprise, 18 U.S.C. S 1959(a)(1), (2);
conspiring to kidnap a federal agent, 18 U.S.C.S 1201(c);
4484
and kidnapping a federal agent, 18 U.S.C. S 1201(a)(5).
Cervantes-Santos did not testify at Defendant's second trial.
Instead, the government primarily relied on the testimony of
two witnesses who had not testified at Defendant's first trial,
Jorge Godoy-Lopez and Rene Lopez-Romero. On March 23,
1993, the district court sentenced Defendant to life in prison
on each of the kidnapping counts, plus 10 years in prison on
each of the racketeering counts.
This court affirmed on direct appeal on January 11, 1995.
See United States v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir.
1995). The mandate issued on April 7, 1995. In October 1995,
the Supreme Court denied Defendant's petition for a writ of
certiorari. See Zuno-Arce v. United States, 516 U.S. 945
(1995). The mandate was never stayed or recalled by this
court or by the Supreme Court.
On July 1, 1997, Cervantes-Santos stated in a declaration
that he had invented testimony to implicate Defendant in the
1990 trial, at the instruction of prosecutors and DEA agents.
However, on January 16, 1998, Cervantes-Santos repudiated
that recantation: In a videotaped interview with DEA agents,
Cervantes-Santos stated that he had recanted under pressure
from Defendant and Manuel Bartlett-Diaz, Governor of the
State of Puebla, Mexico. He then thought better of that repu-
diation and, on March 8, 1998, reaffirmed his original recan-
tation in a conversation with a defense investigator. On May
6, 1998, he reversed field again and denied having reaffirmed
the recantation. Cervantes-Santos' changes of heart are
described more fully in the district court's published opinion
in this case. See United States v. Zuno-Arce, 25 F. Supp. 2d
1087, 1093 (C.D. Cal. 1998).
On October 29, 1997, Defendant filed a motion for new
trial under Rule 33 of the Federal Rules of Criminal Proce-
dure, based on Cervantes-Santos' declaration and other pur-
portedly "newly discovered evidence." In his motion,
Defendant also requested an evidentiary hearing. The claims
4485
in Defendant's motion fell into two general categories: claims
that the government withheld exculpatory evidence in viola-
tion of Brady v. Maryland, 373 U.S. 83 (1963), and claims
that the government knowingly presented false evidence in
Defendant's second trial, namely the testimony of Godoy-
Lopez and Lopez-Romero, in violation of Mooney v. Holo-
han, 294 U.S. 103 (1935), and Napue v. Illinois, 360 U.S. 264
(1959).
On March 30, 1998, the district court concluded that
Defendant's motion for a new trial was untimely under United
States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983). In Cook,
this court held that the two-year statute of limitations for
motions for new trial based on newly discovered evidence
runs from the date on which the "appellate court issues its
mandate of affirmance." Id.1 The district court noted that
Cook applies even in a case in which a defendant has filed a
petition for a writ of certiorari, provided that the mandate has
not been stayed or recalled. See id. The mandate in Defen-
dant's case issued on April 7, 1995, and Defendant filed his
new trial motion more than two years later. Accordingly, the
district court concluded that the motion was filed too late.
Defendant does not appeal that ruling.
At Defendant's request, the district court then construed the
motion as a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. S 2255. The court noted that, because the
motion was filed after April 23, 1996, it was subject to the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), which contains a one-year statute of limitations for
_________________________________________________________________
1 At the time of the district court's ruling, Rule 33 provided that a
motion based on newly discovered evidence could "be made only before
or within two years after final judgment." After the district court ruled on
Defendant's motion, Rule 33 was amended to provide that such a motion
could "be made only within three years after the verdict or finding of
guilty." The effective date of that amendment was December 1, 1998, and
the parties do not suggest that the new statute of limitations is relevant in
this case.
4486
S 2255 motions. See 28 U.S.C. S 2255. For motions based on
newly discovered evidence, the statute of limitations begins to
run on "the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence." 28 U.S.C. S 2255(4). In light of
that one-year limitation period, the court declared that Defen-
dant would be required to demonstrate that the facts support-
ing his claims could not have been discovered before October
30, 1996, one year before Defendant filed his motion.
In its order, the district court also required Defendant "to
file and serve the S 2255 forms required by local rule 26 no
later than April 10, 1998." When Defendant filed those forms,
he added two claims -- double jeopardy and ineffective assis-
tance of counsel -- that were not part of his motion for new
trial. Defendant never sought leave of the district court to
amend his petition to add those claims.
On July 30, 1999, the district court granted the govern-
ment's motion to exclude the results of a polygraph examina-
tion that Defendant had offered to bolster the credibility of
Cervantes-Santos' recantation. On July 31, August 3, and
August 10, 1998, the district court held an evidentiary hearing
to address Cervantes-Santos' recantation. During that hearing,
Cervantes-Santos reaffirmed under oath his 1990 trial testi-
mony.
After receiving further briefing from the parties, the district
court dismissed Defendant's motion in part and denied it in
part in a published opinion filed August 18, 1998. See Zuno-
Arce, 25 F. Supp. 2d at 1087. The court first concluded that,
under Federal Rule of Civil Procedure 15(a), Defendant was
required to seek leave of the court before amending his
motion, because the government already had filed an opposi-
tion to the motion. Because Defendant never sought leave to
amend, but unilaterally added his claims of ineffective assis-
tance and double jeopardy, the court concluded that those
4487
claims were not properly before it and refused to consider them.2
See id. at 1096, 1113.
The district court next concluded that, under Schlup v.
Delo, 513 U.S. 298 (1995), AEDPA's one-year statute of lim-
itations would not apply to Defendant's claims if Defendant
could avail himself of the "miscarriage of justice gateway" by
making a "colorable showing of factual innocence. " Zuno-
Arce, 25 F. Supp. 2d at 1101-02. However, after analyzing the
evidence presented at trial and Defendant's "newly discov-
ered evidence" -- including evidence that fell outside
AEDPA's statute of limitations -- the court held that Defen-
dant had failed to make a satisfactory showing of actual inno-
cence and, accordingly, was not entitled to use the
"miscarriage of justice" gateway. Id. at 1110. The court con-
cluded that Defendant's new evidence was impeachment evi-
dence that "merely confirms what was already known to the
jury during Zuno II -- that Godoy-Lopez and Lopez-Romero
were no angels." Id. Defendant had not "presented any evi-
dence of the type identified in Schlup as reliable `actual inno-
cence' evidence" or otherwise made a colorable showing of
innocence and, accordingly, could not escape AEDPA's stat-
ute of limitations. Id.
The court then considered the extent to which Defendant's
newly discovered evidence was barred by AEDPA's statute of
limitations. The court concluded that nearly all the evidence
presented in Defendant's motion could have been discovered
before October 30, 1996, through the exercise of due dili-
gence. See id. at 1110-13. The court dismissed the sections of
the motion that relied on that "time-barred" evidence. See id.
at 1110.
Next, the district court rejected Defendant's Mooney/Napue
claim, which was based on Defendant's assertion that Godoy-
_________________________________________________________________
2 The district court also rejected both claims on the merits, in the alterna-
tive. See Zuno-Arce, 25 F. Supp. 2d at 1096-97, 1113-15.
4488
Lopez and Lopez-Romero had testified falsely at his second
trial. The court stated that nearly every piece of evidence on
which Defendant relied in that claim was time-barred. See id.
at 1117. The remaining evidence was, in the court's estima-
tion, "insufficient to even warrant an evidentiary hearing on
this issue." Id.
Finally, the court rejected Defendant's many Brady claims.
First, the court noted that most of those claims were based on
facts from outside the statute of limitations and, accordingly,
were time-barred. See id. at 1118 n.46. Defendant's remaining
claims were that the government had failed to disclose: (1)
promises of $100,000 to Godoy-Lopez and Lopez-Romero for
their trial testimony; (2) information regarding DEA Agent
Berrellez's recruitment of witnesses; (3) an unredacted copy
of a 1992 DEA report; (4) Cervantes-Santos' false testimony
against Defendant during Defendant's first trial; (5) a promise
of $200,000 to Cervantes-Santos for that false testimony; and
(6) payments to Cervantes-Santos and his family before and
during Defendant's first trial in excess of amounts revealed at
the time. The district court rejected those claims on the
grounds that they were unsupported by evidence; that they
were based on Cervantes-Santos' recantation which, the court
concluded, was unreliable; and that they charged the govern-
ment with failing to disclose evidence that was not material
to Defendant's case. See id. at 1118-24.
Defendant moved for reconsideration, for leave to conduct
discovery in support of his motion, and for leave to amend his
motion to include his claims of ineffective assistance and dou-
ble jeopardy. The district court denied the motion in its
entirety. Defendant then filed a notice of appeal from the
denial of his S 2255 motion and a request for a certificate of
appealability (COA) as to all the issues that he had presented
in his motion.
On October 29, 1998, the district court issued a partial
COA. The court granted the COA as to a single issue: whether
4489
AEDPA's one-year statute of limitations operates to exclude
"time-barred" facts offered solely to trigger an evidentiary
hearing. As to all the other issues in Defendant's motion, the
court denied Defendant's request for a COA, concluding that
Defendant had not made a "substantial showing of the denial
of a constitutional right," which is required for a COA to issue
under AEDPA. 28 U.S.C. S 2253(c)(2).
Defendant filed his opening brief on appeal on September
9, 1999. In his brief, Defendant assigned error to a number of
conclusions and rulings as to which the district court had not
granted a COA. In its responding brief, the government
argued that those issues are not properly before the panel,
because Ninth Circuit Rule 22-1(d) requires a party who is
seeking to broaden a partial COA to file a motion to broaden
the COA with a motions panel of this court within 35 days of
obtaining the partial COA. In his reply brief, Defendant
argued that Rule 22-1(d) should not apply in his case, but also
filed a motion to broaden his COA. The date of that motion
was December 22, 1999.
I. Ninth Circuit Rule 22-1(d) Applies in this Case
Under 28 U.S.C. S 2253(c)(1), "[u]nless a circuit justice or
judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals" from the final order in a
S 2255 proceeding. This court has held that 28 U.S.C.
S 2253(c)(3) "limits the issues that may be considered on
appeal to those specified in a COA." Hiivala v. Wood, 195
F.3d 1098, 1103 (9th Cir. 1999).
This court has wrestled with the question of how a party
who wishes to expand a partial COA should attempt to do so.
In United States v. Cruz-Mendoza, 147 F.3d 1069, 1074 (9th
Cir. 1998) (Cruz-Mendoza I), the court held that, "in the inter-
est of efficiency, where a district judge has issued a COA on
some but not all the issues, we will treat the briefing of an
uncertified issue as a request for a COA and first decide
4490
whether one should issue." (Footnote omitted.) This court
then adopted Circuit Rule 22-1, which, as noted, had an effec-
tive date of January 1, 1999. In anticipation of the new rule's
taking effect, the Cruz-Mendoza panel amended its opinion on
December 31, 1998. See United States v. Cruz-Mendoza, 163
F.3d 1149 (1998) (Cruz-Mendoza II). The panel deleted the
above-quoted passage and, in its place, inserted a section
explaining the new circuit rule. See id. at 1149-50. The panel
also stated that there was no need to "decide whether this rule
should be applied to [the defendant's] case, which had been
argued and initially decided before the rule's adoption,"
because the defendant had failed to demonstrate that he had
been denied a constitutional right. Id. at 1149.
Circuit Rule 22-1(d) provides, in part:
If the district court denies a certificate of appeala-
bility in part, the court of appeals will not consider
uncertified issues unless petitioner first seeks, and
the court of appeals grants, broader certification.
Petitioners desiring broader certification must file,
in the court of appeals, a separate motion for
broader certification, along with a statement of rea-
sons why a certificate should be granted as to any
issue(s) within thirty-five days of the district court's
entry of its order denying a certificate of appeal-
ability.
(Emphasis added.) The Advisory Committee Note accompa-
nying the rule states that "[m]otions for broader certification
will be decided by motions panels" except in capital cases.
The Advisory Committee Note also states that, if "a party
wishes to ask the merits panel to broaden the scope of the
appeal beyond what was allowed by a motions panel of this
court, such a motion . . . may be filed in the court of appeals
promptly after the completion of briefing."
Defendant argues that Rule 22-1 does not apply in his case,
because he filed his notice of appeal before the rule's effec-
4491
tive date. Applying the rule in his case, he contends, would
violate the presumption against retroactive application of stat-
utes by robbing him of a right that he had at the time he filed
his notice of appeal, namely the right to seek to broaden his
COA simply by filing a brief on the merits of the uncertified
issues. Defendant contends that he should be able to rely on
the rule from Cruz-Mendoza I, and thus be entitled to seek to
expand his COA without filing a motion, even though the sec-
tion of that opinion on which he relies was withdrawn nine
months before he filed his opening brief in this case.
[1] Defendant's argument on that point is unpersuasive. As
a general matter, rules of appellate procedure apply to pend-
ing appeals to the extent that their application is just and prac-
ticable. Amendments and additions to the Federal Rules of
Appellate Procedure are accompanied by orders so stating.
See, e.g., Order of April 23, 1996, West Federal Civil Judicial
Procedure and Rules 442 (1999) ("[T]he foregoing amend-
ments . . . shall govern all proceedings in appellate cases
thereafter commenced and, insofar as just and practicable, all
proceedings in appellate cases then pending."). This court's
meager case law on the issue of circuit rules is to the same
effect. See Volkswagenwerk Aktiengesellschaft v. Church, 413
F.2d 1126, 1127-28 (9th Cir. 1969) (applying a new proce-
dural rule to a pending appeal where application of the rule
would not work an injustice). Further, in Hiivala, this court
stated: "Circuit Rule 22-1 and the Advisory Committee Note
became effective before this case was submitted for decision.
It would appear, therefore, that we should apply the Rule to
Hiivala's appeal." 195 F.3d at 1103. Although that statement
from Hiivala is not a holding, it supports application of Rule
22-1 in this case.
[2] Defendant's argument that applying the rule to his
appeal would have a "retroactive" effect is similarly unper-
suasive. "A statute does not operate [retroactively] merely
because it is applied in a case arising from conduct antedating
the statute's enactment . . . or upsets expectations based in
4492
prior law." Landgraf v. USI Film Prods., 511 U.S. 244, 269
(1994) (citation omitted). Rather, the inquiry is "whether the
new provision attaches new legal consequences to events
completed before its enactment." Id. at 270. Here, Circuit
Rule 22-1 did not change the legal effect of anything that
Defendant did before its enactment. Rather, it placed a pro-
spective procedural requirement on him. Defendant argues as
if he already had filed his opening brief in reliance on Cruz-
Mendoza I when Circuit Rule 22-1 took effect. But he had
not; nor had he requested in any other manner that this court
broaden his COA. When he first attempted to broaden his
COA, in his September 1999 opening brief, Circuit Rule 22-
1 long since had taken effect.
[3] In sum, we conclude that Circuit Rule 22-1 applies in
this case. New rules of appellate procedure, including circuit
rules, apply in pending cases to the extent that their applica-
tion is just and practicable. Defendant has not argued persua-
sively that application of Circuit Rule 22-1(d) in this appeal
would not satisfy those standards. There is no compelling rea-
son, legal or equitable, to apply the superseded rule from
Cruz-Mendoza I and treat Defendant's opening brief as a
motion for an expanded COA.
II. Defendant's Rule 22-1(d) Motion Was Not Timely
Defendant finally attempted to comply with Rule 22-1(d)
by filing a motion for an expanded COA on December 22,
1999. That motion is untimely.
As noted, Rule 22-1(d) states that a party seeking to
broaden a COA "must file . . . a separate motion for broader
certification . . . within thirty-five days of the district court's
entry of its order denying a certificate of appealability." Here,
however, the district court's order was entered on October 29,
1998, more than a month before the rule's effective date, and
the parties agree that the 35-day filing period cannot begin to
run from the entry of the court's order.
4493
The government argues that the filing period should run
from January 1, 1999, the date when the rule went into effect,
and that the filing period therefore expired on February 5,
1999. As support for that argument, the government cites Cal-
deron v. United States Dist. Court (Beeler), 128 F.3d 1283,
1286-87 (9th Cir. 1997), in which this court held that limita-
tion periods contained in AEDPA begin to run from the stat-
ute's effective date for convictions that became final before
the statute's effective date.
Defendant counters that the government's argument would
result in an unjust application of the rule, because Defendant's
counsel was not appointed until February 16, 1999. That argu-
ment does not aid Defendant; its logical result is that Defen-
dant's 35-day filing period should have begun to run on
February 16, in which case it would have expired on March
22, nine months before he filed his motion.
More fundamentally, Defendant appears to argue that his
newly appointed counsel should have been able to ignore
Rule 22-1 and rely on the old rule from Cruz-Mendoza I,
which was withdrawn before counsel even was appointed.
That argument is somewhat puzzling. Defendant does not
suggest that counsel was unaware of Rule 22-1 or that he
believed that Cruz-Mendoza I remained the law of the circuit
on this point even after it was withdrawn. Indeed, it is clear
that Defendant knew of the requirements of Rule 22-1 at the
latest on September 9, 1999, the date of his opening brief,
because he discusses the rule in that brief. However, Defen-
dant did not attempt even at that time to comply with the rule
by filing a motion for an expanded COA.
Defendant finally filed a motion under Rule 22-1(d) on
December 22, 1999. In that motion, he repeats his argument
that the rule should not apply in his case and argues that he
reasonably could have believed that a motion was unneces-
sary. However, he also acknowledges that Hiivala suggests
that the rule applies in pending cases, and he appears to state
4494
that he is filing his motion to comply with the Hiivala court's
suggestion.
Thus, it appears that Defendant is arguing that the trigger-
ing event for his motion was the publication of Hiivala. The
implication of that argument is that Defendant should have
been given 35 days after Hiivala was published within which
to file his motion, because he had no way to know before that
date that a motion was required. A fatal difficulty with Defen-
dant's argument is that Hiivala was published on September
13, 1999. Thus, even if Defendant is correct that his 35-day
filing deadline runs from Hiivala's publication, his motion
still is untimely, because he did not file it until 100 days after
that case issued.
As noted, Rule 22-1(d) states that a motion to broaden a
COA must be filed within 35 days. Here, even accepting any
of Defendant's suggestions as to when that 35-day period
began to run, the motion is untimely. Because Defendant has
failed to comply with the express terms of Rule 22-1(d), or to
provide a compelling reason for his noncompliance, we
decline to address his motion to broaden the COA. As a con-
sequence, we decline to address the issues in Defendant's
brief that fall outside the limited COA that the district court
granted; appeal from the denial of a S 2255 motion is strictly
limited to the issues specified in the COA. See Hiivala, 195
F.3d at 1103.
III. The "Time-Barred" Evidence That Defendant Offered
Did Not Require an Evidentiary Hearing
The district court granted Defendant a COA as to only one
issue. In its partial certification, the court stated: "While it is
well settled that the one-year period of limitation[in AEDPA]
operates to exclude evidence when the Court considers the
merits of S 2255 claims, it is a first-impression issue as to
whether the period of limitation operates to exclude specific
facts that the Defendant believes entitle[ ] him to an evidenti-
4495
ary hearing." As noted, the district court held an evidentiary
hearing to address some of Defendant's "newly discovered
evidence," most notably Cervantes-Santos' recantation. How-
ever, the court declined to hold any further evidentiary hear-
ing on Defendant's Mooney/Napue claim, concluding that the
timely evidence supporting Defendant's request for a hearing
"constitutes no more than conclusory allegations. " Zuno-Arce,
25 F. Supp. 2d at 1118.
[4] When a prisoner files a motion under 28 U.S.C. S 2255,
the district court must grant an evidentiary hearing to deter-
mine the validity of the motion "[u]nless the motion and the
files and records of the case conclusively show that the pris-
oner is entitled to no relief." 28 U.S.C. S 2255; see also, e.g.,
United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).
A district court's decision to grant or deny an evidentiary
hearing is reviewed for abuse of discretion. See United States
v. Andrade-Larrios, 39 F.3d 986, 991 (9th Cir. 1994). Defen-
dant's Mooney/Napue claim alleges that Godoy-Lopez and
Lopez-Romero lied at his 1992 trial. The standard one-year
statute of limitations for a S 2255 motion based on this claim
-- which ran from "the date on which the judgment of con-
viction becomes final," 28 U.S.C. S 2255(1) -- began to run
on AEDPA's effective date, April 23, 1996, and expired
before Defendant filed his motion in October 1997. See
Beeler, 128 F.3d at 1286-87 (holding that limitation period
contained in AEDPA begins to run from the statute's effective
date for convictions that became final before the statute's
effective date).
[5] Accordingly, Defendant's motion is timely only insofar
as it qualifies under one of the exceptions to AEDPA's stan-
dard limitation period. The only arguably applicable excep-
tion is the one contained in S 2255(4): "The limitation period
shall run from . . . the date on which the facts supporting the
claim or claims presented could have been discovered through
the exercise of due diligence." To prevail, Defendant must
prove his claim through facts that he could have discovered
4496
only in the year before he filed his S 2255 motion. Only evi-
dence that would demonstrate the possibility of the existence
of such "newly discovered evidence" is relevant to the ques-
tion whether he was entitled to an evidentiary hearing. In
other words, Defendant is entitled to an evidentiary hearing if,
but only if, his motion and the record give the court some spe-
cific reason to believe that such "new" evidence exists.
[6] In its COA, the district court posed the question
whether it was required to consider parts of the record that, on
their face, fell outside AEDPA's statute of limitations in
deciding whether to hold an evidentiary hearing. We need not
resolve that broad question to resolve this appeal. Even
assuming that the district court was required to consider those
"time-barred" parts of the record, the district court did not
abuse its discretion in denying an evidentiary hearing.
[7] First, we agree with the district court's conclusion that
the materials that the court did consider -- Cervantes-Santos'
repudiated recantation and the dismissal of the Godinez-
Cervantes prosecution -- were insufficient to warrant an evi-
dentiary hearing. See Zuno-Arce, 25 F. Supp. 2d at 1118. Nor
does the material that the district court refused to consider
necessitate a hearing. That material is offered either to
impeach Godoy-Lopez and Lopez-Romero or to challenge
specific statements that they made at trial. Taken together,
that material is insufficient to establish that a hearing is
required, because nothing to which Defendant points specifi-
cally suggests that "newly discovered evidence " of the sort
that would be admissible on the merits of Defendant's S 2255
motion might be unearthed at a hearing. Defendant has
alleged that the government violated Mooney and Napue in
1992 and has presented material in support of that allegation,
most of which cannot be considered under AEDPA's statute
of limitations. What he has not done is present anything to
demonstrate the possible existence of timely evidence to sup-
port his allegations. In the absence of anything more concrete
than the speculation -- present in every case -- that new evi-
4497
dence might exist, we decline to order an evidentiary hearing
on Defendant's Mooney/Napue claim.
Defendant's remaining arguments address issues that mani-
festly are outside the district court's partial COA. Accord-
ingly, we decline to address them.3
AFFIRMED.
_________________________________________________________________
BROWNING, Circuit Judge, dissenting:
I respectfully dissent from Parts I and II. The members of
the panel agree that new rules of appellate procedure apply to
pending appeals only to the extent their application is just and
practicable. See, e.g., Order of April 23, 1996, West Federal
Civil Judicial Procedure and Rules 442 (1999).1 That stan-
dard is not met here. Zuno-Arce's certificate of appealability
(COA) was partially denied more than 35 days before Circuit
Rule 22-1(d) took effect. It was therefore not "practicable" for
him to comply with the express terms of the new rule. To
require him to do so would be "unjust." As Circuit Rule 22-
1(d) did not apply to his pending case, Zuno-Arce correctly
relied on the old rule from Cruz-Mendoza I. See Solis v.
Garcia, 219 F.3d 922 (9th Cir. 2000) (per curiam) (treating
petitioner's briefing of uncertified issues as a request to
_________________________________________________________________
3 Specifically, we decline on that ground to address Defendant's conten-
tions concerning alleged violations of Brady; ineffective assistance of
counsel; double jeopardy; the district court's denial of leave to amend the
motion; discovery; the "actual innocence gateway"; and any other argu-
ments subsumed within Defendant's discussion of those issues.
1 The majority's reliance on Volkswagenwerk Aktiengesellschaft v.
Church, 413 F.2d 1126 (9th Cir. 1969), is misplaced. In that case, we
declined to apply a new procedural rule to a pending appeal where the
party, relying on the previous rule, filed an exception to the cost bill one
day late. We applied the previous rule "to avoid injustice." Id. at 1127-28.
4498
expand the COA where COA partially denied more than 35
days before Rule's effective date).2
Whether Zuno-Arce should nonetheless have attempted to
"substantially comply" with the new rule by filing a separate
motion for broader certification within some court-created
"grace period" is a separate question. Since no "grace period"
was established in law, this question is governed not by the
"just and practicable" standard, but by the "actual notice" rule
of Fed.R.App.P. 47(b). Under Rule 47(b), "No sanction or
other disadvantage may be imposed for noncompliance with
any requirement not in federal law, federal rules, or the local
circuit rules unless the alleged violator has been furnished in
the particular case with actual notice of the requirement."
Fed.R.App.P. 47(b) (emphasis added).
No requirement exists in federal law, federal rules, or the
local circuit rules that petitioners whose COAs were partially
denied more than 35 days before Circuit Rule 22-1(d)'s effec-
tive date must file a motion to expand their COA within a
specified "grace period." Indeed, Circuit Rule 22-1(d), the
only federal or circuit rule to impose a 35-day filing period
for expanding COAs,3 is silent on its applicability to pending
cases. Neither is there any general rule, recognized by circuit
or federal rule, that litigants who can not practicably comply
_________________________________________________________________
2 Although Solis did not discuss Circuit Rule 22-1(d), supplemental
briefing on the rule's applicability to the pending appeal was ordered and
considered by the panel. The panel necessarily determined Rule 22-1(d)
did not apply.
3 The Federal Rules of Appellate Procedure permit the courts of appeals
to consider the notice of appeal as a direct request to expand the COA. See
Fed.R.App.P. 22(b) ("If no express request for a certificate is filed, the
notice of appeal constitutes a request addressed to the judges of the court
of appeals."); see also Slack v. McDaniel, 529 U.S. 473 (2000) ("[T]he
Court of Appeals should have treated the notice of appeal as an application
for a COA."); Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000) ("Consistent
with Slack, we treat petitioner's brief on uncertified issues in this appeal
as a request to expand the COA issued by the district court.").
4499
with a filing period established by a local procedural rule that
became effective while their appeals were pending must none-
theless substantially comply with the new rule within a
judicially-prescribed "grace period."4 If the majority desires
such a rule, it should propose an amendment to the Circuit
Rules Committee to supercede the actual notice rule of
Fed.R.App.P. 47(b).
No such rule is prescribed by circuit caselaw. Cruz-
Mendoza II, 163 F.3d 1149 (9th Cir. 1998), merely replaced
a sentence from Cruz-Mendoza I, 147 F.3d 1069, 1974 (9th
Cir. 1998), with the text of Circuit Rule 22-1(d); it provided
no analysis nor did it address the rule's applicability to pend-
ing cases. Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), is
similarly unhelpful: it did not even involve Circuit Rule 22-
1(d) or its mandatory 35-day filing period.5 The majority's
_________________________________________________________________
4 Analogy to the Beeler period is misplaced. Different standards apply
to procedure imposed by statute and local rule. While a judicially-crafted
"grace period" is clearly appropriate with regard to statutory time limits,
see Calderon v. United States Dist. Court (Beeler) , 128 F.3d 1283 (9th
Cir. 1997); Jones v. United States, 121 F.3d 1327 (9th Cir. 1997), it is not
appropriate with regard to local rules where a party loses rights because
it reasonably construed a local rule in a way the court of appeals ulti-
mately rejected. See Fed.R.App.P. 47(a)(2) ("A local rule imposing a
requirement of form must not be enforced in a manner that causes a party
to lose rights because of a nonwillful failure to comply with the require-
ment.").
The reasonableness of Zuno-Arce's interpretation of Circuit Rule 22-
1(d) is underscored by Mathis v. Ducharme, 1999 U.S.App.LEXIS 5186,
at 2 (9th Cir. Mar. 15, 1999) (unpublished), in which a panel of this court
held that the new rule "only applies to appeals filed after 1/1/1999," the
rule's effective date. Id. ("Ninth Circuit Rule 22-1(d) now requires peti-
tioners desiring a broader certification to file a separate motion. This new
rule, however, only applies to appeals filed after 1/1/1999."). A Ninth Cir-
cuit panel also declined to apply Rule 22-1(d) in a case procedurally iden-
tical to this case in Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000).
5 As Hiivala's request for a COA was denied in full by the district court,
his appeal would have been controlled by Circuit Rule 22-1(c), which
imposes no filing deadline nor motion requirement. In fact, even the sug-
4500
attempt to establish these cases as triggering events for Rule
22-1(d)'s 35-day filing deadline must fail under Fed.R.App.P.
47(b).
Fed.R.App.P. 47(b) allows us to apply Circuit Rule 22-1(d)
to Zuno-Arce only if he was furnished with "actual notice" of
the proposed requirement. Zuno-Arce was not given such
notice.6
Because federal law imposes no trigger date for application
of Rule 22-1(d)'s 35-day filing period to pending cases and
because Zuno-Arce did not have "actual notice " that any such
date would be applied in his case, Fed.R.App.P. 47(b) prohib-
its the panel from imposing a new procedural requirement on
Zuno-Arce that works a disadvantage to him. To do so would
_________________________________________________________________
gestion that Circuit Rule 22-1 might apply to Hiivala (or that Hiivala actu-
ally "complied" with it) was clearly erroneous, as all relevant events and
full briefing by both parties occurred before January 1, 1999, the Rule's
effective date. Rather, Hiivala, like Zuno-Arce, relied on Fed.R.App.P.
22(b).
6 The majority suggests Zuno-Arce "knew" of the 35-day requirement
"at the latest" on September 9, 1999, when he filed his opening brief,
because he mentions the rule, and on December 20, 1999, when he filed
a motion to expand his COA in reliance on Hiivala. Plainly, knowledge
of the rule, which is silent on its applicability to pending cases, does not
provide actual notice that the rule will be applied to pending cases that fail
the "just and practicable" test. Moreover, even assuming Hiivala provided
actual notice that Rule 22-1(d) would be applied to cases in which COAs
were partially denied more than 35 days before the rule's effective date,
Hiivala was not published until after Zuno-Arce filed his opening brief.
It would be unreasonable to find Zuno-Arce had such notice until the Gov-
ernment filed its response brief on December 6, 1999, in which Hiivala
was raised for the first time. Once Zuno-Arce was put on notice of Hii-
vala, he filed a motion to expand his COA within 14 days.
Zuno-Arce never "argued," as the majority suggests, that any event
"triggered" the 35-day filing period under Rule 22-1(d) -- e.g., appoint-
ment of counsel, publication date of Hiivala. To the contrary, he at all
times insisted that Rule 22-1(d) did not apply to his case and thus there
was no need to apply any 35-day grace period.
4501
be to sanction Zuno-Arce for failing to predict how a Circuit
Rule, with no instructions for litigants regarding its applica-
bility to pending cases and with whose terms it was impracti-
cable to comply, would ultimately be construed by this court.
Such a result is inconsistent with the "just and practicable"
rule and Fed.R.App.P. 47(b).
Consistent with Solis, the briefing of uncertified issues in
Zuno-Arce's appeal should be treated as a request to expand
his partial COA. I respectfully dissent.
4502
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