LEXSEE· . (". " ~....•. .' Positive As of: Feb 24, 2011 KEVIN COOPER, Petitioner, vs. JILL L. BROWN, Acting Warden, San Quentin State Prison, Respondent. CASE NO. 04-CV-656H Related cases 98-CV-818-H, 92-CV-427-H UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA 2005 U.S. Dist. LEXIS 46232 May 27, 2005, Decided May 27, 2005, Filed SUBSEQUENT HISTORY: Affinned by Cooper v. JUDGES: MARILYN L. HUFF, JUDGE. Brown. 510 F.3d 870. 2007 U.S. ApR. LEXlS 27982 19th Cir. Cal. 2007) OPINION BY: MARILYN L. HUFF PRIOR HISTORY: Cooper v. Woodford. 358 F.3d OPINION 1117.2004 U.S. ApR. LEXIS 2236 19th Cir., 2004) CORE TERMS: testing, blood, hair, murder, t-shirt, CAPITAL CASE shoe, tennis shoes, bedroom, night, post-conviction, Order Denying Successive Petition for Writ of Habeas hideout, stain, guilt, coveralls, tampering, shirt, Corpus evidentiary hearing, deputy, successive, innocence, habeas corpus petition, mitochondrial, physical evidence, Petitioner Kevin Cooper, a California state prisoner, wound, supplemental, hatchet, investigator, inmate, brings this successive petition for writ of habeas corpus cigarette butts, log petition pursuant to 28 U.S.c. § 2254. He challenges his capital conviction for the first-degree murders of COUNSEL: [*1] For Kevin Cooper, Petitioner: David T Franklyn Douglas Ryen ("Doug"), Peggy Ryen, his wife, Alexander, LEAD ATTORNEY, MBV Law, San Jessica Ryen, their 10-year-old daughter, and Christopher Francisco, CA; George A. Yubas, Nonna CHile, LEAD Hughes, an II -year-old neighborhood friend, and the ATTORNEYS, Orrick Herrington and Sutchliffe, San attempted murder of Joshua Ryen, the 8-year-old son of Francisco, CA. Doug and Peggy Ryen. For Thomas P Goughnour, Acting Warden, San Quentin Petitioner's successive petition challenges State Prison, Respondent: Attorney General, LEAD post-conviction DNA test results that confinn that ATTORNEY, State of California, Office of the Attorney Petitioner is responsible for the RyenlHughes murders. General, San Diego, CA; HoUy D Wilkens, LEAD (DOJ Physical [*2] Evidence Report dated July 2, 2002; ATTORNEY, State of California, Office of the Attorney Supplemental DOJ Physical Evidence Exam Report dated General, San Diego, CA. Sept. 24, 2002.) I These DNA tests were done pursuant to Page I 2005 U.S. Dist. LEXIS 46232, *2 a Joint DNA Forensic Testing Agreement ("Joint DNA On [*4] February 19, 1985, Petitioner was convicted Agreement") entered on May 10, 2001. 2 Those results of four counts of first-degree murder (Cal. Penal Code § provide strong evidence of Petitioner's DNA from blood [87Ca)) of Doug Ryen, his wife Peggy Ryen, their inside the Ryen residence (one in 310 billion), from 10-year-old daughter Jessica Ryen and a neighborhood saliva on two cigarette butts recovered from the stolen friend, Il-year-old Christopher Hughes. Petitioner was R yen station wagon (one in 19 billion and one in 11 0 also convicted of attempted murder in the first degree million), and from aT-shirt found on the side of a road (Cal. Penal Code §§ 664,187Ca), 12022.7) of the Ryens' that contained Petitioner's blood (one in 110 million) and eight-year-old son Joshua, the severely wounded sole victim Doug Ryen's blood (one in 1.3 trillion). survivor. Petitioner also pled guilty to escape from a state (Supplemental DOl Physical Evidence Exam Report prison. (Cal. Penal Code § 4530Cb).) The jury found true dated Sept. 24, 2002.) In addition to the DNA evidence an allegation of the special circumstance of multiple inculpating Petitioner, DNA profiles of blood taken from murders, (Cal. Penal Code § 190.2Ca)(3)), as well as the a hatchet that was taken from the house where Petitioner allegation that Petitioner intentionally inflicted great hid after his escape from prison matched that of several bodily injury on the sole survivor, Joshua Ryen (Cal. ofthe victims including Doug and Jessica Ryen and Chris Penal Code § 12022.7): The jury determined the penalty Hughes. (Supplemental DOJ Physical Evidence Exam as death. On May 15, 1985, the trial court sentenced him Report dated Sept. 24, 2002.) to death. (92-CV-427, Third Supplemental Notice of On May 6, 1991, the California Supreme Court Lodgment ("NOL") filed Jan. 23, 2004, Ex. No.4, affirmed the judgment of conviction and sentence of DOJ Physical Evidence Exam Report dated July death. People v. Kevin Cooper 53 Ca1.3d 771 281 Cal. 2, 2002 ("DOl Physical Evidence [*3] Report Rplf. 90. 809 P.2d 865 (991). On June 26, 1991, the dated July 2, 2002"); 92-CV-427, Third California Supreme Court denied Petitioner's petition for Supplemental NOL filed Jan. 23, 2004, Ex. No.5, rehearing and issued its remittitur. On December 16, Supplemental DOJ Physical Evidence Exam 1991, the United States Supreme Court [*5] denied Report dated Sept. 24, 2002 ("Supplemental DOJ Petitioner's first petition for writ of certiorari. Cooper v. Physical Evidence Exam Report dated Sept. 24, California. 502 U.S. 1016. 112S. Ct. 664 116 L. Ed. 2d 2002").) 755(991). 2 (92-CV-427, Third Supplemental NOL filed Jan. 23, 2004, Ex. No. 23, Joint Forensic DNA On March 24, 1992, Petitioner requested Testing Agreement dated May 10,2001.) appointment of counsel and a stay of execution from this Court. On March 26, 1992, the first in a series of stays of On February 9, 2004, the Ninth Circuit granted execution was issued by this Court. Cooper v. Calderon, Petitioner's request to file a successive petition for writ of Case No. 92-CV-427 ("Cooper I"). habeas corpus in federal court and remanded the successive petition to this Court. Cooper v. Woodford. On August II, 1994, Petitioner filed his first petition 358 F.3d 1117 (9th Cir. 2004.) The Ninth Circuit stated for writ of habeas corpus in this Court. Cooper I, that Petitioner's guilt may be resolved through two 92-CV-427. On April 12, 1996, Petitioner filed an scientific tests: (1) mitochondrial DNA testing of hairs amended petition for writ of habeas corpus in this Court. found on the victims and (2) testing of the T-shirt for Cooper I, 92-CV-427, Doc. No. 123. On June 20, 1997, ethylene-diamine-tetra-acedic acid ("EDT A") blood Petitioner filed a supplemental petition for writ of habeas preservative. [d. at 1123-24. Having conducted corpus with this Court. On August 25, 1997, following an mitochondrial DNA testing and EDTA testing, reviewed evidentiary hearing, this Court denied Petitioner's first the parties' papers, heard testimony from forty-two federal petition for writ of habeas corpus. Cooper I, witnesses, reviewed numerous. exhibits, considered the 92-CV-427, Doc. No. 165. On September 16, 1997, prior record, and listened to the parties' oral arguments, Petitioner filed a motion and objections to the entry of this .Court DENIES the successive petition for writ of judgment in this Court. Cooper I, 92-CV-427, Doc. No. habeas corpus. 202. The Court denied Petitioner's motion on November 7,1997. Cooper I, 92-CV-427, Doc. No. 208. PROCEDURAL HISTORY On April 4, 1996, Petitioner filed his first of seven Page 2 2005 U.S. Dis!. LEXIS 46232, *5 state petitions for writ of habeas corpus in the [*6] state habeas corpus petition in the California Supreme California Supreme Court. In re Cooper, Case No. Court. In re Cooper, Case No. S077408. On April 14, S052741. The California Supreme Court denied. the first 1999, the California Supreme Court denied [*8] petition for writ of habeas corpus on February 19, 1997. Petitioner's third and fourth state petitions for writ of (Answer, Ex. 1.) habeas corpus. (Answer, Exs. 5, 6.) On May 7, 1999, Petitioner filed a motion for clarification of rulings On March 12, 1997, Petitioner filed a motion to regarding his third state petition for writ of habeas recall the remittitur in the direct appeal in the California corpus. The motion was denied on May 12, 1999. Supreme Court. People v. Cooper, Case No. S004687. (Answer, Ex. 7.) The California Supreme Court denied Petitioner's motion to recall the remittitur on March 26, 1997. (Answer, Ex. On July 9, 1999, Petitioner filed a third petition for 2.) writ of certiorari in the United States Supreme Court in case number 99-5303, challenging the denial of his third On September 12, 1997, Petitioner filed his second state habeas petition by the California Supreme Court. state petition for writ of habeas corpus in the California The United States Supreme Court denied the petition on Supreme Court. (Answer, Ex. 3.) On September 30, 1997, October4, 1999. Cooper v. California, 528 U.S. 897,120 Petitioner filed his second motion to recall the remittitur S. Ct. 229 145 L. Ed. 2d 192 Cl999). in the California Supreme Court, which was denied October 15, 1997. (Answer, Ex. 4.) The Ninth Circuit affinned the Court's denial of Petitioner's first federal habeas petition on July 9, 2001. On April 26, 1998, during the pendency of his appeal Coopcr v. Calderon 255 F.3d 1104 19th Cir. 200Il. cert. to the Ninth Circuit Court of Appeals from this Court's denied, 537 U.S. 861. 123 S. Ct. 238 154 L. Ed. 2d 100 denial of his first federal habeas petition, Petitioner filed (2002). On August 29, 2001, Petitioner filed a petition for a second petition for writ of certiorari in the United States rehearing and rehearing en banco On January 8, 2002, the Supreme Court in case number 97-8837 regarding this Ninth Circuit denied the petition. Court's denial of his first federal petition for writ of habeas corpus. On June 26, 1998, the United States On December 21, 2001, the Ninth Circuit denied Supreme Court denied the petition.