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California Court of Appeal: When Federal Court Finds Petitioner Satisfies Schlup Standard, Victim Compensation Board Must Recommend Payment of Claim Without Hearing

The Court of Appeal, Second Appellate District, Division Five, held that when a federal district court finds that a habeas petitioner has satisfied the standard enunciated in Schlup v. Delo, 513 U.S. 298 (1995), and the petitioner is permanently released from custody, the California Victim Compensation Board (“Board”) is to recommend payment of the petitioner’s claim pursuant to Cal. Pen. Code § 4904 without conducting a hearing. (Note: undesignated statutory references cited below are to the California Penal Code.)

Daniel Larsen was convicted of a felony violation of former § 12020(a), which prohibited carrying a concealed dirk or dagger, and he was sentenced to 28 years to life in prison. After exhausting his state remedies, Larsen sought federal habeas relief pursuant to 28 U.S.C. § 2254. The State argued that Larsen’s claims were procedurally defaulted because his petition was filed beyond the one-year limitations period of 28 U.S.C. § 2244(d)(1)(A). But that procedural limitation doesn’t prevent a federal court from deciding the merits of a habeas petition if the petitioner presents evidence that establishes “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup.

A magistrate held a hearing to determine whether Larsen’s petition could be heard on the merits per Schlup. At the hearing, Larsen presented evidence from five witnesses that a man named William Hewitt had tossed the dagger beneath the vehicle. (Larsen’s evidence included a declaration from Hewitt wherein Hewitt admitted tossing the knife beneath the vehicle.)
The magistrate judge found Larsen had satisfied the Schlup standard, concluding: “[H]ad the jury been able to consider this same evidence, ‘no reasonable juror would [have found [Larsen]] guilty beyond a reasonable doubt.’” The district court adopted the magistrate’s findings—which meant Larsen’s petition could be considered on the merits.

At the hearing to consider the merits, the magistrate determined Larsen’s trial counsel was ineffective for failing to locate and investigate these exculpatory witnesses. The magistrate further determined that the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), requires a lesser showing than that required to pass through Schlup’s actual innocence gateway; therefore, Larsen had necessarily satisfied Strickland’s prejudice test. The district court adopted the magistrate’s findings, conclusions, and recommendations; granted Larsen’s petition; and ordered Larsen retried or released within 90 days. Larsen was released in 2013 without being retried.

Ultimately, Larsen filed a claim with the Board seeking compensation for the 4,903 days he was imprisoned as a result of his wrongful felony conviction. He argued that pursuant to § 1485.55 the Board must recommend compensation without conducting a hearing of its own because the federal habeas proceedings resulted in a determination of factual innocence. The Board rejected that argument. According to the Board, § 1485.55 requires an affirmative finding of factual innocence and the Schlup finding that no reasonable juror would have convicted Larsen is “not at all equivalent to finding him innocent.” The Board then conducted its own hearing and reweighed the evidence. It concluded the evidence supported Larsen’s conviction and denied his claim for compensation.

Larsen challenged the Board’s actions via a petition for a writ of administrative mandamus pursuant to § 1094.5 of the Code of Civil Procedure. The trial court denied the petition, and Larsen appealed.

The Court of Appeal observed “California has long had a system for compensating exonerated inmates for the time they spent unlawfully imprisoned.” People v. Etheridge, 241 Cal.App.4th 800 (2015). A person may present a claim to the Board “for the pecuniary injury sustained by him or her through ... erroneous conviction and imprisonment or incarceration” when “the evidence shows that the crime with which the claimant was charged was either not committed at all, or, if committed, was not committed by the claimant.” §§ 4900, 4904. If the evidence shows a claimant has sustained injury, the Board“shall report the facts of the case and its conclusions to the next Legislature, with a recommendation that the Legislature make an appropriation for the purpose of indemnifying the claimant for the injury.” § 4904. The Board “shall, without a hearing, recommend to the Legislature that an appropriation be made and the claim paid” when “[i]n a contested proceeding ... the court has granted a writ of habeas corpus ... and ... has found the person is factually innocent.”
§ 1485.55(a). In the absence of a court finding of actual innocence, a hearing by the Board is required. § 4903(a).

The Court determined that resolution of the appeal turned on two questions: (1) what does Schlup require a federal court to find to avoid an otherwise applicable procedural bar to a habeas corpus petition and (2) does that finding satisfy what the California Legislature meant by “factually innocent” in § 1485.55(a)?

Generally, claims that are procedurally barred “may support federal habeas relief only if the prisoner can demonstrate cause for the default and prejudice from the asserted error.” House v. Bell, 547 U.S. 518 (2006). An exception to that general rule applies when a petitioner falls within the “narrow class of cases ... implicating a fundamental miscarriage of justice.” Schlup. In Schlup, the federal habeas petitioner presented evidence that he was actually innocent of the murder for which he had been convicted, and he raised constitutional claims of error that he failed to raise in his earlier petition. The district court evaluated the actual innocence showing under the stringent standard set forth in Sawyer v. Whitley, 505 U.S. 333 (1992) (a petitioner “must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law”).

The U.S. Supreme Court held that the district court erred and should have decided Schlup’s claim under the standard of proof announced in Murray v. Carrier, 477 U.S. 478 (1986). “To establish the requisite probability,” the Supreme Court ruled, “the [habeas] petitioner must show it is more likely than not that no reasonable juror would have convicted him in light of the new evidence [of actual innocence].” Schlup. In a case decided the same day as Schlup, the Supreme Court articulated the same standard but used the different terminology of “colorable claim of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436 (1986). The Schlup/Kuhlmann standard “does not merely require a showing that reasonable doubt exists in light of the new evidence, but rather no reasonable juror would have found the defendant guilty.”

Turning to the instant case, the Court presumed that the State Legislature was aware of the holding in Schlup when it amended § 1485.55 in 2016. Leider v. Lewis, 2 Cal.5th 1121 (2017). The Legislature amended §§ 1485.55(a), (c), and (e) to include the term “factually innocent” for distinguishing those cases where the Board, without conducting its own hearing, is to recommend to the Legislature it make an appropriation to settle the claim. As explained above, Schlup’s standard of “actual innocence” is the same as Kuhlman’s standard of “colorable claim of factual innocence.” It follows, then, that the district court’s determination that Larsen satisfying the Schlup “actual innocence” standard also satisfies § 1485.55’s “factual innocence” requirement, the Court reasoned. Because the federal district court found that Larsen had met the Schlup standard of actual innocence, the California Court concluded that the trial court erred when it failed to reverse the Board’s order denying Larsen’s compensation claim.

The Court also recognized that a different panel of the Court of Appeal, Second Appellate District, Division Four, reached the opposite conclusion on this same issue. In Souliotes v. California Victim Comp. Bd., 61 Cal.App.5th 73 (2021), that Court concluded: “In other words, ‘actual innocence’ as used in a Schlup gateway finding is a finding that the petitioner could not be found guilty, beyond a reasonable doubt, of the crime in question and therefore is presumed innocent. But it is not a factual finding that the petitioned did not commit the crime in question.” The Court in the instant case analyzed the Souliotes Court’s opinion and determined “[t]his reasoning, in our view, is flawed.”

Accordingly, the Court reversed the judgment and remanded to the trial court to enter a new judgment reversing the Board’s order denying Larsen’s compensation claim and directing the Board to recommend, pursuant to § 4904, that an appropriation be made for payment of Larsen’s claim. See: Larsen v. California Victim Compensation Board, 64 Cal. App. 5th 112 (2021). 

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