Hooper v. Brnovich

56 F.4th 619

Murray HOOPER, Plaintiff-Appellant,

v.Mark BRNOVICH, Attorney General of Arizona; Michael Sullivan, Police Chief for the City of Phoenix, Defendants-Appellees.

No. 22-16764

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2022 San Francisco, California

FILED NOVEMBER 15, 2022

Kelly L. Culshaw, Nathan Alexander Maxwell, Assistant Federal Public Defenders, Nicole Elyse List, ASFDPUDF, FPDAZ-Federal Public Defenders Office (Phoenix), Phoenix, AZ, for Plaintiff-Appellant.

David Ernest Ahl, Laura Chiasson, Esquire, Ginger Jarvis, Esquire, Assistant Attorney Generals, Jeffrey L. Sparks, Arizona Attorney General's Office, Phoenix, AZ, for Defendant-Appellee Mark Brnovich.

Before: Jacqueline H. Nguyen, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.

OPINION

PER CURIAM:

The State of Arizona plans to execute Murray Hooper on Wednesday, November 16, 2022. On September 22, 2022, in Maricopa County Superior Court, Hooper moved under state law for an order permitting him to conduct DNA testing and fingerprint analysis on evidence found at the crime scene more than forty years ago. See Ariz. Rev. Stat. § 13-4240 (DNA testing); id. § 13-4241 (other forensic testing). The superior court denied relief in an October 21, 2022 order. Hooper sought review of this order via a special action petition in the Arizona Supreme Court. The state supreme court accepted jurisdiction and affirmed the superior court's ruling in a November 10, 2022 order.

Hooper then commenced this federal lawsuit under 42 U.S.C. § 1983. He seeks a declaratory judgment that the Arizona statutes providing for forensic testing of DNA and other evidence are unconstitutional as applied to him as well as an injunction ordering defendants to permit him to conduct the forensic testing. He moved for a preliminary injunction prohibiting his execution until he obtains this relief. The district court denied the injunction, and Hooper appeals.

We conclude that the district court lacked subject matter jurisdiction under the Rooker - Feldman doctrine because this action amounted to an improper appeal of the state courts' judgment.¹ Therefore, we vacate the district court's order denying the preliminary injunction and remand with instructions to dismiss.

I.

We have previously set forth the facts and procedural history of this case, see Hooper v. Shinn , 985 F.3d 594 (9th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 1376, 212 L.Ed.2d 330 (2022), and we do not repeat them in detail here. On the evening of December 31, 1980, three armed intruders forced their way into Pat and Marilyn Redmond's Phoenix home, killing Pat along with Marilyn's mother, Helen Phelps, and shooting Marilyn in the head in an unsuccessful attempt to kill her. Although "overwhelming evidence" supports the jury's finding that Hooper was one of the three intruders, id. at 617, he maintains his innocence.

A.

In 2000, Arizona amended its criminal code to provide a mechanism whereby a person who has received a felony sentence, under certain circumstances, can obtain forensic DNA testing of evidence related to the investigation or prosecution of his case. Such a person may petition the court for this relief "[a]t any time." Ariz. Rev. Stat. § 13-4240(A). If the petitioner makes certain showings and the prosecutor has notice and an opportunity to respond, then the court either "shall" or "may" order the DNA testing, id. § 13-4240(B), (C), depending on the strength of the petitioner's showing as to the evidence's materiality.²

If the petitioner shows a "reasonable probability" that he "would not have been prosecuted or convicted if exculpatory results had been obtained through [DNA] testing," id. § 13-4240(B)(1), then the court "shall order" the testing. Id. § 13-4240(B). If the petitioner cannot make that showing, the court still "may order" testing if the petitioner shows a reasonable probability that either his "verdict or sentence would have been more favorable if the results of [DNA] testing had been available at the trial," id. § 13-4240(C)(1)(a), or "[DNA] testing will produce exculpatory evidence." Id. § 13-4240(C)(1)(b).

Last year, the Arizona legislature added a general provision for postconviction forensic testing using newly available techniques. See Ariz. Rev. Stat. § 13-4241. This statute is modeled on the statute for DNA testing but provides less flexibility as to the materiality showing. The petitioner must show a "reasonable probability" that he "would not have been prosecuted or convicted if exculpatory results had been obtained through the new forensic testing." Id. § 13-4241(B)(1). If the petitioner satisfies this and the statute's other requirements, then the court "shall order" the new testing. Id. § 13-4241(B). Unlike the DNA-specific statute, the general statute does not grant courts the discretion to order testing when the petitioner makes only a lesser showing of materiality.

B.

Hooper moved under these two statutes to test approximately twelve fingerprints and a bloody kitchen knife found at the Redmond home. He argued that analyzing the fingerprints in local and national databases could have "linked an alternative suspect to the crime." He similarly argued that DNA testing of any biological material on the knife could "identify the actual perpetrators and undermine the integrity of [his] convictions."

The Maricopa County Superior Court denied Hooper's motion for fingerprint testing based on a finding that "there is no ‘reasonable probability ... that [he] would not have been prosecuted or convicted if exculpatory results had been obtained through the new forensic testing.’ " Although the superior court agreed with Hooper about the "absence of physical evidence" connecting him to the murders, the court found that a "significant amount" of other evidence—including Marilyn's identification of Hooper—shows that he committed them. In light of this evidence, including evidence that the perpetrators wore gloves, the court reasoned that whatever fingerprint testing might reveal, it would not have been reasonably likely to have affected the outcome. For similar reasons, the court found that Hooper was not entitled to mandatory DNA testing under section 13-4240(B) or discretionary DNA testing under section 13-4240(C).

In affirming these rulings, the Arizona Supreme Court rejected Hooper's argument that the superior court had placed undue reliance on the overwhelming evidence of Hooper's guilt. The state supreme court concluded that "the superior court applied the proper analysis" when it relied on the "compelling and consistent" trial testimony, corroborated by circumstantial and other evidence, in finding there was not a reasonable probability that Hooper would have avoided prosecution or conviction with exculpatory evidence from forensic testing. The supreme court explained that "exculpatory" evidence in this context means "someone else's fingerprints [or DNA] at the crime scene." Because the superior court provided "a reasonable explanation about why another person's DNA may have been on the knife" and why even fingerprint evidence that was "inconsistent with the State's version of the facts" did not outweigh the other evidence, the supreme court found no abuse of discretion.

C.

Hooper filed this § 1983 action against the Arizona Attorney General and the Phoenix Chief of Police in their official capacities "to challenge the constitutionality of the [forensic testing] statutes as applied by the State of Arizona." He alleges that defendants' "continued refusal to allow [him] to test key evidence in their possession denies him due process of law and access to the courts and violates his Eighth Amendment right to be free from cruel and unusual punishment."

Hooper moved for a preliminary injunction to prohibit his execution before he obtains the DNA and fingerprint evidence that he maintains will exonerate him. The State argued, among other things, that Rooker - Feldman bars Hooper from litigating his claims in the district court. The district court concluded that Rooker - Feldman does not apply but denied the motion for a preliminary injunction on the ground that Hooper did not establish a likelihood of success on the merits of his due process claim.

II.

Although the State does not reassert its Rooker - Feldman argument in its appellate brief,³ "we have an independent obligation to determine that subject matter jurisdiction exists both in this court and in the district court." Serrano v. 180 Connect, Inc. , 478 F.3d 1018, 1021 (9th Cir. 2007). We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which encompasses review of the district court's "authority to rule on a party's motion for a preliminary injunction." Meredith v. Oregon , 321 F.3d 807, 816 (9th Cir. 2003) ; see also Hall v. U.S. Dep't of Agric. , 984 F.3d 825, 834 (9th Cir. 2020) (considering federal subject matter jurisdiction before addressing the merits of appeal from order denying preliminary injunction). While "we ordinarily review the grant or denial of injunctive relief for abuse of discretion, here the issue is jurisdiction which we review de novo." Serv. Emps. Int'l Union v. Nat'l Union of Healthcare Workers , 598 F.3d 1061, 1069 (9th Cir. 2010) (internal citation omitted); see also Benavidez v. County of San Diego , 993 F.3d 1134, 1141 (9th Cir. 2021).

III.

A.

Under the Rooker - Feldman doctrine, "a state-court decision is not reviewable by lower federal courts." Skinner v. Switzer , 562 U.S. 521, 532, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). This doctrine bars a federal district court from exercising subject matter jurisdiction "not only over an action explicitly styled as a direct appeal, but also over the ‘de facto equivalent’ of such an appeal." Morrison v. Peterson , 809 F.3d 1059, 1069–70 (9th Cir. 2015) (quoting Cooper v. Ramos , 704 F.3d 772, 777 (9th Cir. 2012) ).

"To determine whether an action functions as a de facto appeal, we ‘pay close attention to the relief sought...