GEORGE H. GAGE, Petitioner,
KEVIN CHAPPELL, Respondent
Resubmitted July 16, 2015, Pasadena, California
Application to File Second or Successive Petition under 28 U.S.C. § 2254 . April 7, 2015, Argued and Submitted; April 7, 2015, Submission Vacated.
The panel denied California prisoner George Gage's application for permission to file a second or successive habeas petition under 28 U.S.C. § 2254 in a case in which Gage, who was convicted of sexually assaulting his stepdaughter, sought to bring a Brady claim and an ineffective assistance of counsel claim, neither of which was included in his first federal habeas petition.
The panel held that Gage's argument that his new petition is not " second or successive" within the meaning of the AEDPA is foreclosed by United States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011), because the factual predicates for his claims existed at the time of his first petition.
The panel held that Gage is barred from bringing a successive petition under 28 U.S.C. § 2244(b)(2)(B) because he failed to exercise due diligence by failing to include the Brady claim in his original petition, and that the actual innocence exception articulated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), does not abrogate § 2244(b)(2)(B).
Tony Faryar Farmani (argued), Farmani, APLC, San Diego, California, for Petitioner.
Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook (argued), Deputy Attorney General, Los Angeles, California, for Respondent.
Before: Dorothy W. Nelson, A. Wallace Tashima, and Richard R. Clifton, Circuit Judges.
A. Wallace Tashima, Circuit Judge.
California prisoner George Gage applies for permission to file a second or successive habeas petition under 28 U.S.C. § 2254. Gage, who was convicted in California court of sexually assaulting his stepdaughter, seeks to bring a Brady  claim and an ineffective assistance of counsel claim, neither of which was included in his first federal habeas petition. He asserts actual innocence and argues that his petition thus falls into the miscarriage of justice exception articulated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), thereby excusing him from the limitations on second or successive petitions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), 28 U.S.C. § 2244(b)(2)(B). We conclude, first, that Gage is barred from bringing a successive petition under § 2244(b)(2)(B) because of his failure to exercise due diligence, and, second, that the Schlup exception does not abrogate § 2244(b)(2)(B). We therefore deny the application.
In 1985, while living in Texas, Gage met Wanda, a mother of two children, Marian and Lionel. Gage and Wanda moved in together and were married in 1990. Marian was then nine years old and Lionel was seven. The family moved to California in 1993.
In April 1995, Wanda learned that Gage had pursued an affair with another woman that resulted in a child. Gage had been siphoning money from family funds to pay child support. These revelations led to the marriage's acrimonious collapse. Wanda and the children quickly moved back to Texas.
Several years after the split, in 1998, Marian told Wanda that Gage had sexually abused her while they were living in California. Marian and Wanda reported Gage to Texas authorities approximately two months later. According to the initial police report, Marian indicated that Gage engaged in inappropriate touching but did not have intercourse with her. Later, however, Marian stated that Gage actually had intercourse with her on numerous occasions. These accusations surfaced during a tumultuous time in Marian's life. Around the time she reported the abuse, Marian apparently attempted suicide on several occasions and spent a significant amount of time hospitalized for mental illness.
In response to Marian's allegations, the Los Angeles County District Attorney charged Gage with one count of continuous sexual abuse of a child (Cal. Penal Code § 288.5), nine counts of forcible rape (Cal. Penal Code § 261(a)(2)), and nine ...