Gary Brownlee v. KELLY SANTORO, Acting Warden, Director Cal. Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY BROWNLEE,
Petitioner-Appellant,
v.
KELLY SANTORO, Acting Warden,
Director Cal. Department of Corrections,
Respondent-Appellee.
No. 20-55351
D.C. No.
2:17-cv-09320-ODW-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted November 18, 2022
Pasadena, California
Before: NGUYEN and SUNG, Circuit Judges, and FITZWATER,** District Judge.
Concurrence by Judge SUNG.
Petitioner-appellant Gary Brownlee (“Brownlee”) appeals the district court’s
judgment dismissing his habeas petition as a second or successive petition that does
FILED
JAN 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

-- 1 of 7 --

not satisfy the requirements of 28 U.S.C. § 2244(b)(2)(B). This court granted a
certificate of appealability on the following issue: whether the petition satisfied the
requirements of 28 U.S.C. § 2244(b). We have jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253. We review the district court’s judgment de novo, Woods v. Carey,
525 F.3d 886, 888 (9th Cir. 2008), and we affirm.
1. As to Brownlee’s “Gourdine” claim—that his trial counsel provided
ineffective assistance by failing to ensure that the jury heard the testimony of Lisa
Gourdine, a key alibi witness—Brownlee has failed to establish that “the factual
predicate for the claim could not have been discovered previously through the exercise
of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(I). The due diligence requirement
“turns on two factors: (1) whether the petitioner was on inquiry notice to investigate
further, and, if so, (2) whether the petitioner took reasonable steps to conduct such an
investigation.” Solorio v. Muniz, 896 F.3d 914, 921 (9th Cir. 2018). Brownlee cannot
demonstrate due diligence because the evidence on which the Gourdine claim is based
is not newly discovered. See Jones v. Ryan, 733 F.3d 825, 844 (9th Cir. 2013).
Brownlee has asserted factually identical claims in several previous habeas
proceedings—at both the state and federal levels—such that it is clear that he cannot
satisfy the due diligence requirement for pressing the Gourdine claim. The claim was
properly dismissed for failure to satisfy 28 U.S.C. § 2244(b)(2)(B)(I).
2

-- 2 of 7 --

2. Concerning Brownlee’s “Filer” claim—that his counsel rendered ineffective
assistance by failing to interview and secure the testimony of Carol Filer, an
acquaintance of the murder victim—Brownlee has satisfied the due diligence
requirement. No one knew that Filer possessed exculpatory information; Brownlee
was not on inquiry notice to investigate further by interviewing her and securing her
testimony at trial; and as soon as Brownlee was made aware of Filer’s knowledge, he
acted upon it by obtaining a signed declaration from Filer and by filing a state habeas
petition based on this new claim and including it in his present petition.
But Brownlee’s habeas claim must still be dismissed under 28 U.S.C.
§ 2244(b)(2)(B)(ii) because he has failed to show that “the facts underlying the claim,
if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense.” This prong of § 2244(b)(2)(B) requires the applicant to assert a predicate
constitutional violation and then establish that “no reasonable factfinder” would have
convicted him if the evidence that was excluded because of that constitutional error
3

-- 3 of 7 --

had been admitted.1 Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. 2016).
Brownlee cannot satisfy this requirement as to the Filer claim, or, for that matter, the
Gourdine claim.
Because Brownlee has failed to show that no reasonable factfinder would have
found him guilty had that constitutional error not occurred, he cannot meet this heavy
burden. Had Filer’s testimony been discovered earlier and presented to the jury, it
would have conflicted with the statements of several prosecution witnesses. The same
is true for Gourdine’s alibi testimony. Had this evidence been admitted, it would have
presented a weight-of-the-evidence issue that the jury could have reasonably resolved
for the prosecution or for Brownlee. This is insufficient to carry the applicant’s
burden with respect to the clear and convincing evidence requirement of §
2244(b)(2)(B)(ii).
Brownlee therefore cannot satisfy all the requirements of § 2244(b)(2)(B) as to
either claim on which his petition is based. Accordingly, the district court did not err
1 Brownlee argues that the state misstates the burden under § 2244(b)(2)(B)(ii)
and that he must simply “raise enough doubt as to his guilt to show that no reasonable
juror would find him guilty beyond a reasonable doubt.” In essence, Brownlee asks
us to apply the preponderance standard from Schlup v. Delo, 513 U.S. 298, 327
(1995). But the Ninth Circuit has already held that Schlup does not abrogate §
2244(b)(2)(B) and that the heightened burden of proof under
§ 2244(b)(2)(B)(ii)—clear and convincing evidence of innocence—continues to apply
to second or successive claims. See Gage v. Chappell, 793 F.3d 1159, 1168-69 (9th
Cir. 2015).
4

-- 4 of 7 --

by dismissing the petition as a second or successive one that does not comply with the
standards set forth in § 2244(b)(2)(B).
3. Brownlee requests in the alternative that we remand for an evidentiary
hearing to present additional evidence of his actual innocence. Brownlee did not
request an evidentiary hearing in the district court. Further, to warrant a hearing,
Brownlee must have alleged facts that, if proved, would entitle him to relief. Nevius
v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988). But as discussed above, even if
Brownlee’s contentions are presumed to be true, they do not “entitle him to relief”
because of § 2244(b)(2)(B)’s stringent gatekeeping requirements. See id.
Accordingly, we decline to remand for an evidentiary hearing.
The facts on which Brownlee’s petition is based are largely undisputed, and
even if Brownlee’s contentions are presumed to be true, they likely do not “entitle him
to relief” because of the stringent § 2244(b)(2) standards. Nevius, 852 F.2d at 466.
And in any event, the issue is not one of Filer’s and Gourdine’s credibility.
Accordingly, we decline to remand for an evidentiary hearing.2
AFFIRMED.
2 Brownlee’s motion and second motion to take judicial notice, Dkt. Nos. 19
and 41, are GRANTED.
5

-- 5 of 7 --

1
Brownlee v. Santoro, No. 20-55351
SUNG, Circuit Judge, concurring:
I write separately to recognize Mr. Brownlee’s personal attempts to properly
frame the Gourdine claim in both his state and federal habeas petitions. The record
reflects that Mr. Brownlee told his appellate counsel that his trial counsel was
ineffective for failing to subpoena a key alibi witness, Lisa Gourdine, to testify at
his retrial.1 Despite this, when appellate counsel filed Mr. Brownlee’s first habeas
petition in state court (filed simultaneously with his direct appeal), appellate
counsel did not include an ineffective assistance of counsel claim based on trial
counsel’s failure to subpoena Gourdine. Likewise, appellate counsel did not
include that claim in Mr. Brownlee’s petition for review to the California Supreme
Court. Although Mr. Brownlee included that claim in his first federal habeas
petition, because it had not been presented to the California Supreme Court, the
federal court was required to dismiss it for failure to exhaust state court remedies.
See Brownlee v. Hill, 2005 WL 8162488, at *1 (C.D. Cal. Sept. 26, 2005) (citing
28 U.S.C. §§ 2244(b) and (c)). Appellate counsel wrote a letter describing these
circumstances and suggesting that he was “now subject to the same charge, -the
1 Gourdine testified at Mr. Brownlee’s first trial, which resulted in a mistrial
because the jury deadlocked, with four jurors voting to acquit.
FILED
JAN 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 6 of 7 --

2
ineffective assistance of counsel.”2 I recognize Mr. Brownlee’s diligent efforts to
pursue his claim and the difficulties of the circumstances presented, even though
doing so does not change the outcome of this case.
2 However, there is no claim that appellate counsel provided ineffective
assistance before this court.

-- 7 of 7 --