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Manuel Pina BABBIT






A.K.A.: "Manny"
Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: December 19, 1980
Date of birth: 1949
Victim profile: Leah Schendel (female, 78)
Method of murder: Beating (heart failure caused by stress)
Location: Sacramento County, California, USA
Status: Executed by lethal injection in California on May 4, 1999
Name: Babbitt, Manuel CDC# C50400       Sex: M
Alias: None. 
Race: Black 
Date Received: 07/15/1982 
Education: NA 
Location: NA 
Married: NA 

County of Trial: Sacramento  Sentence Date: 07/06/1982 
County of Residence: Unknown  County of Offense: Sacramento 
Offense Date: 12/19/1980  Court Action: Affirmed 
Court Date: 06/16/1988  Case #: NA 


Leah Schendel (female, 78)




On the night between Dec. 18 and 19, 1980, Manuel Pina Babbitt broke into the South Sacramento apartment of Leah Schendel and brutally beat and sexually assaulted the 78-year-old woman. The offender also attempted to rape Mrs. Schendel before ransacking and robbing her residence.

Mrs. Schendel's semi-nude body was found lying on the floor of her bedroom, partially covered by a bloodstained mattress. Later coroner examinations indicated that she may have been sexually assaulted.

Mrs. Schendel's cause of death was determined to be heart failure caused by stress related to the robbery and beating.

The following night, Dec. 19, 1980, the offender attempted to rape another Sacramento woman, whom he grabbed and beat unconscious before robbing her of money and jewelry. Following his arrest, the offender did not deny committing the crimes, but said he had no memory of what happened. However, several items of Mrs. Schendel's property were found in his possession, linking him to her murder.

A Sacramento County jury found the offender guilty of first degree murder with special circumstances. He was sentenced to death on July 6, 1982.

In March 1998, while serving time on death row, the offender was awarded the Purple Heart for wounds he received in the Vietnam War 30 years previously.


At 12:29 a.m., May 4, 1999, the execution by lethal injection of Manuel Pina Babbitt began in San Quentin State Prison’s execution chamber. Babbitt was pronounced dead at 12:37 a.m.

Babbitt declined a last meal and fasted until his execution. He spent his last hours with family, friends and his attorneys.

Manuel Pina Babbitt’s last words were "I forgive all of you."


Manuel Pina Babbitt, 50, 99-05-04, California

At San Quentin, Manuel Pina Babbitt, a decorated Vietnam veteran who murdered a Sacramento grandmother, was put to death by lethal injection early this morning, one day after turning 50 on death row.

Prison officials said the injection was delayed until they received word that the U.S. Supreme Court had rejected without comment the condemned man's eleventh-hour request for a stay of execution.

The execution took place at 12:29 a.m., 28 minutes later than scheduled. He was pronounced dead at 12:37 a.m. His last words, told to Warden Jeanne Woodford at around mindnight, were "I forgive you all."

The condemned man was strapped and handcuffed to a gurney with his arms out; intravenous lines injected him with a cocktail of chemicals. At one point during the somber proceeding, his body bucked several times, his chest straining against the straps.

Laura Thompson, Schendel's granddaughter, looked away at that point. In a statement after the execution, she said, "It is our hope that this conclusion will bring a sense of closure to our family. We know that nothing will bring Leah Schendel back to us, but we feel that we have done everything in our power to see that justice was done in her name."

Babbitt was sentenced to death for the 1980 murder and attempted rape of 78-year-old Leah Schendel--an attack he said he did not remember because it came during a post-traumatic stress flashback.

Babbitt spent his final hours in seclusion, reading poetry and meditating instead of speaking with a spiritual advisor, according to his attorney, Charles E. Patterson.

Patterson described Babbitt as "completely peaceful."

16 family members and friends had filed into the massive prison throughout the day to visit the condemned man for the last time.

As night fell and the execution neared, various members of the Babbitt entourage gathered near the prison gates, including childhood friend Patricia Tavares, who had traveled from Massachusetts, where "we don't have the death penalty and I'm proud of it," she said.

Gesturing from her wheelchair at the gathered family, Tavares said that "when you see these people, you're seeing Manny. Manny's not leaving us. . . . Manny just wants to go out in dignity, and that's all we want--privacy and dignity."

As the time ticked away, Babbitt's legal options narrowed. Late Monday, the U.S. Ninth Circuit Court of Appeals denied his request to take his case to federal court, said state Public Defender Jessie Morris. With less than 2 hours to go before the execution, Babbitt's attorneys appealed to the U.S. Supreme Court. Earlier in the day, the state Supreme Court had denied a request that Babbitt's execution be stayed while a hearing is held to decide whether the condemned man should have a new trial based on evidence his lawyers say has recently surfaced.

In a tersely worded ruling, Chief Justice Ronald M. George called defense arguments about racism in jury selection and excessive drinking by Babbitt's 1st attorney "untimely" and "repetitious." Only two of the seven justices voted for a stay of execution; one did not participate in the ruling.

Babbitt spent his day visiting with friends and family, waiting for word on court rulings, taking telephone calls and fasting. Instead of eating the traditional last meal, his attorneys said, he has asked that the money instead be donated to feed homeless veterans.

Beverly Lopes, Babbitt's 5th-grade teacher, who traveled from Massachusetts to support Babbitt's family, said she spent 5 hours with him and "he's doing very well.

"I told him I was honored to be his teacher," she recounted. "I blessed him on his birthday. . . . I told him to 'hold your head up high and face the world, so when I go back to my classroom, I will go and hold my head up high.' "

Scores of protesters, mostly demonstrating against the death penalty, had gathered at the gates of San Quentin as the execution neared, including a small group of men who walk 25 miles from San Francisco each time an execution is scheduled.

Babbitt "served our country well," said 65-year-old Lyle Grosjean of Santa Cruz, a Korean War-era veteran and one of the so-called "walkers."

"The least we can do is not kill him," Grosjean said.

Wearing a Purple Heart he earned during the Vietnam War, Larry Yepez brought his Marine dress uniform to the prison, hoping to leave it behind on the barricades "for Manny," he said.

Yepez said he, too, suffers from post traumatic stress disorder and believes that the country "turned its back" on soldiers like himself and Babbitt. The execution, he figures, is just another cold shoulder to Vietnam veterans.

A minority of voices in the crowd showed up to express support for the death penalty in general and Babbitt's execution in particular, calling capital punishment "American justice."

"Half those people in there should die," said Kristine McClymonds, 20, of Petaluma, as she stood in front of the prison gates. Said her companion Aaron, who refused to give a last name, "It's not about vengeance. It's about what's right."

Earlier, Patterson described the condemned man as resigned to his fate and wanting "to die with dignity." He said Babbitt viewed the execution as God's way of calling him home.
While on death row, Babbitt was able to get to sleep "by listening to his heart beat," Patterson said. "He tries to catch that last heartbeat before falling asleep. He believes that if he is executed, he will again listen to that last heartbeat."

Babbitt's execution made 1999 only the 2nd year since then that California has killed 2 men. Jaturun Siripongs, 43, of Garden Grove, was executed in February for a double murder he committed in 1981.

California has the most crowded death row in the nation, with 536 inmates waiting to die, and the pace of executions is increasing. Opponents of the death penalty expect at least 1 or 2 more executions in California before the millennium.

Late Friday, after Gov. Gray Davis denied Babbitt's clemency petition, the condemned man's attorneys asked the state Supreme Court for a stay of execution and a hearing on a new trial. Patterson argued in the legal filing that his client did not get a fair trial in 1982 because of the "racial animus and alcohol-induced ineptitude" of his attorney at the time.

Recently uncovered evidence shows that Babbitt's trial attorney routinely drank 3 or 4 double vodkas at lunch during the trial, Patterson alleged in court documents. He described blacks in derogatory terms and did not object when prosecutors excused the only African Americans from the jury pool, the documents show.

Don Schendel, the dead woman's son, decried what he called the defense's "raising the race card" at this late date, more than 18 years after Schendel was killed in her Sacramento home.

"I don't remember anyone speaking about the color of a person throughout this whole ordeal," Schendel said. "It's all subterfuge. It's a shame."

In the days and hours before Babbitt's execution, Lance Lindsey, executive director of Death Penalty Focus, a nonprofit organization opposed to capital punishment, received an unusual number of calls from veterans and law enforcement officials supporting Babbitt, who claimed he suffered from post-traumatic stress disorder as a result of his Vietnam War experience. Babbitt served at the siege of Khe Sanh, one of the bloodiest battles of the Vietnam War.

"They're not the usual suspects that are always against the death penalty," said Lindsey, who planned to lead a vigil outside San Quentin Monday night in protest of the execution.

On a foggy night just before Christmas in 1980, Manuel Babbitt was walking home along a Sacramento street after a day spent drinking and smoking marijuana. When he paused at an intersection, he said he saw the headlights of cars coming down a hill. They looked to him like the lights on enemy aircraft in Khe Sanh.

"I don't know how I made it across," he said in a clemency tape presented to Davis. "The next thing I remember was waking up on a lawn somewhere in Sacramento on one of those streets. That's all I remember of that night."

Babbitt sliced through the screen door of Leah Schendel's small apartment with a knife and beat her so brutally that he shattered her dentures. She died of a heart attack as a result of the assault.

Babbitt becomes the 7th condemned prisoner - and the 1st African American - to be executed in the death chamber at San Quentin State Prison since California resumed executions in 1992.

(sources: Los Angeles & Rick Halperin)



California executes mentally ill Vietnam veteran

By Jerry White - World Socialist Web Site

May 5, 1999

The state of California put to death Manuel "Manny" Babbitt, a mentally disturbed Vietnam veteran, early Tuesday morning. On death row for 18 years, Babbitt, a 50-year-old grandfather, was executed by lethal injection at San Quentin prison after last ditch appeals to state and federal courts failed to win a stay of execution.

More than 700 protesters gathered outside the prison just north of San Francisco to voice their opposition to the death penalty and support for Babbitt. The veteran was convicted of the 1980 killing of Leah Schendel, a 78-year-old Sacramento woman, during a break-in.

Babbitt's defense attorneys argued that he had a Vietnam War flashback and was in a drug- and alcohol-induced haze when he killed Schendel.

Governor Gray Davis, a Democrat who ran for office as a law-and-order candidate and death penalty proponent, rejected Babbitt's appeal for clemency last Friday. Davis said, "Countless people have suffered the ravages of war, persecution, starvation, natural disasters, personal calamities and the like, but such experiences cannot justify or mitigate the savage beating and killing of defenseless, law-abiding citizens."

Babbitt's fate personifies the treatment of many working class youth who were first used, and in many cases destroyed, during America's war in Indochina and then discarded. He grew up in poverty in a small community of immigrants from the Cape Verde Islands in Wareham, Massachusetts. He and his seven brothers and sisters were raised by an abusive father and mentally ill mother in a house that was heated by wood and insulated with newspaper, without a toilet or hot water.

Babbitt suffered from learning disabilities in school and dropped out after seventh grade at the age of 17. Barely 18, he joined the Marines in 1967. The recruiter gave him a general intelligence test, but Manny could barely read it, so the recruiter filled it in for him.

Babbitt recalled one of his first assignments: loading shells filled with thousands of darts. "A bunch of little tiny nails hit little tiny humans and all the humans fell. There'd be nothing but blood and guts on the landscape and that was the kind of things I had to look at.''

Within six months he was in Khe Sanh, in the middle of a 77-day siege of the US fire base by the North Vietnamese Army, one of the longest and bloodiest battles in the war. Babbitt was one of the 2,000 Marines wounded at Khe Sanh when on the fifty-sixth day of the battle he was struck in the head and hand by rocket fragments. He was evacuated in a helicopter filled with dead Marines in body bags. One week later he was flown back to Khe Sanh.

When the siege was finally lifted in July 1968, after US bombers had laid waste to the area, nearly 1,000 US Marines, 15,000 North Vietnamese soldiers and thousands of civilians were dead.

After Khe Sanh, Babbitt fought another bloody battle, and then went home where he married and signed up for another tour. He was assigned to guard duty at a military base in Quonset Point, Rhode Island, where he lived with his new family. But the impact of Vietnam left deep mental scars.

At home he would scream to his wife to grab the babies and run for cover from the bombs. He took LSD, a habit he began in Vietnam, and soon went AWOL (absent without leave). After the third incident, Babbitt was discharged from the Marines and his family evicted from the military base. At the time a close friend said, "He had always had troubles, and he wasn't particularly bright, but the Manny that came back from overseas was nuts."

Soon Manny turned to crime, including robbing gas stations and vacant summer homes.

On October 24, 1973 he was sentenced to eight years in state prison for armed robbery. Later he was admitted to the infamous Bridgewater State Hospital for the Criminally Insane, a prison hospital that gained national notoriety in 1967, when the documentary "Titicutt Follies" chronicled shocking abuses of patients by hospital workers.

After returning to prison, Babbitt was sent back to the hospital two months later when he attempted suicide because his wife was leaving him. In 1975, Babbitt was diagnosed with paranoid schizophrenia and granted parole from the hospital. He soon returned to the streets, like thousands of the more than 500,000 Vietnam veterans with post-traumatic stress disorder who were left without treatment.

Soon after moving to Sacramento, California to live with his brother Bill, Manny was involved in the assault on Leah Schendel. On the afternoon before the attack he drank and took drugs with another Vietnam veteran. Babbitt says he does not remember attacking Schendel or another woman the next night who was beaten. All he remembers is seeing car headlights in the foggy night that he believed were incoming aircraft or exploding mortars.

The lawyers who argued for Babbitt's appeal--Jessica McGuire, a public defender, and Charles Patterson, a private lawyer who was also a Marine in Khe Sanh--said Babbitt saw the lights and "disassociated." The sight of aircraft would always be followed by enemy fire in Vietnam and soldiers would duck for cover. Babbitt, his lawyers say, ran for cover into Schendel's house and then beat her when she panicked.

The old woman was found with a mattress over her head and a leather cord tied around her ankle. Babbitt's attorneys say this was significant because when a Marine was killed in combat his friends tried to protect the body from further damage by covering the corpse with whatever was handy. They would also try to tie something around the ankle or foot to identify the body before it was evacuated.

The police captured Manny with the aid of Bill Babbitt who was desperately seeking help for his troubled brother. Bill said the police "urged me to try to solicit a confession from him so it would expedite his 'care.' They told me, 'You don't have to worry about your brother going to the gas chamber. We're going to find a hospital for him, perhaps a place like Vacaville,'" he added, referring to the state prison that has a medical and psychiatric facility. Bill has since said he feels like Judas for delivering his brother into the hands of the executioners.

Babbitt's appeal lawyers argued that Manny deserved a new trial because of racial bias and judicial misconduct in his original trial. James Schenk, Babbitt's court-appointed lawyer for the 1982 trial, resigned last year from the state bar after pleading no contest to embezzling $50,000 from clients' trust funds. During the trial he never called witnesses who had served with Babbitt in Vietnam, never documented his family history of mental illness, and never sought Babbitt's Vietnam medical records. Schenk, who was reportedly drunk during much of the trial, admitted in court papers that he "failed completely in the death penalty phase" of the trial.

Babbitt's case received widespread support from veterans groups, prominent writers, death penalty opponents, mental illness associations, and even former jurors in the trial who said they would never have sentenced him to death if they had been aware of his mental disorders. The brother of Unabomber Ted Kaczynski, who had also turned in his brother after false assurances from authorities that they would not seek the death penalty, added his support.

Last year, after lobbying from veterans, Babbitt received the Purple Heart medal while on death row. He was shuffled into a prison room shackled in a chain that wrapped around his waist, between his legs, to his handcuffed wrists. As a sergeant major read the citation documenting Manny's wounds at Khe Sanh, Manny tried to salute. He could not raise his manacled hands to his forehead so he scrunched forward at the waist, bringing his forehead to his hand, held stiff in salute. Shortly after the ceremony, Democratic Senator Diane Feinstein introduced legislation to ban military personnel from presenting medals to criminals.

Babbitt's supporters had hoped to win clemency from Governor Gray Davis, a Vietnam veteran who promised to give veterans respect during his election bid. Instead Davis denounced Babbitt's "lifelong and violent criminal activities," adding that he had had several run-ins with military police and officers during his time as a US Marine. This was the second time since taking office in January that Davis has refused to commute the sentence of a death row inmate.

Babbitt spent Monday, his fiftieth birthday, counting down the hours to his 12:01 a.m. execution. He asked that the $50 allotted for his last meal go to homeless veterans.


Manuel Babbitt

Sacramento Bee

After Laura Thompson watched her grandmother's killer die early Tuesday inside San Quentin's converted gas chamber, she sounded steadfast and sure that her years-long fight for the execution had been just.

"Crime is not pleasant," Thompson said. "We cannot expect that justice will always be pleasant."

But her words, contained in a statement she dictated to the Associated Press shortly after she watched Leah Schendel's killer put to death by lethal injection, did not appear to match her reactions to what she saw inside the chamber viewing room where 50-year-old Manuel Pina Babbitt died.

At times, she could not bring herself to look at the man she had fought so hard to see executed, especially when his body involuntarily convulsed as the lethal drugs hit his system.

Sometimes, Thompson looked down at the floor, other times she gazed off into space with a hard, blank look on her face.

A few feet away, through the thick glass of the chamber, Babbitt was dying for the 1980 murder of Thompson's 78-year-old grandmother in her south Sacramento home.

But the closure that Thompson and other relatives said they sought through witnessing the execution appeared elusive, at least early Tuesday.

Perhaps it would come later, with time, Thompson said afterward, but it was clear that it was not there early Tuesday.

One Schendel relative stood at the back of the chamber softly crying. Another held hands with a fellow witness. The prosecutor who sent Babbitt to death row -- Sacramento County Deputy District Attorney Kit Cleland -- sat hunched over in a chair, staring down at the floor and never appearing to look at Babbitt.

And Thompson, the most vocal of those working to see that the death sentence was carried out, appeared pained and uncomfortable as she watched it happen before her.
As the troubled former Marine died, his guilt-wracked older brother watched from a corner, smiling wanly several times.

Hours after watching the execution, William Babbitt gathered his thoughts at a Half Moon Bay hideaway -- and let them fly.

"I'm at peace," said William Babbitt on Tuesday. "I pray that the Schendel family is."

But any peace he feels is tinged with bitterness stretching back years. William Babbitt turned his brother into police for Schendel's murder after, he says, he was assured that his younger brother would get help -- not execution.

While police interrogated his brother, who was barefoot, William Babbitt recalled asking for socks for his younger brother.

"I was so grateful for those socks. That's the only benefit I got for turning in my beloved brother," Babbitt said.

If Manuel Babbitt, a former Vietnam veteran, tortured by postwar mental disorders, had been kept safely in a mental hospital, if he had gotten the help he needed, he and Leah Schendel would not have died the way they did, William Babbitt said Tuesday afternoon.

"My brother died as a result of state-sanctioned murder, and history will come to realize that fact," said Babbitt, who plans to spend time away from his Sacramento home following the execution.

Unlike some on death row who spend their last days in near solitude, Manuel Babbitt was never far from familiar faces. Family and friends came in swarms, swelling to as many as two dozen in one day, said Vernell Crittendon, spokesman for San Quentin State Prison.

"He was completely calm," said Chuck Patterson, an attorney for Babbitt, who kept company with him in his last hours and witnessed his execution.

It was family and friends, not Manuel Babbitt, who urged last-minute legal appeals, Patterson said.

When his time came, Manuel Babbitt himself never appeared to open his eyes, never looked around at the witnesses gathered to see him die or to bid him farewell.
Instead, he issued his last words through the warden: "I forgive all of you."

Babbitt's was the 7th California execution to take place since 1992 and one of the more unusual ones in many ways.

Unlike the 6 men who went before him, Babbitt chose no last meal, deciding instead to continue the fast he had begun several days ago as it became evident his execution would go through as scheduled.

When he was led to the death chamber, Babbitt was restrained with narrow handcuffs, instead of the wider leather restraints, to make it easier to find a vein in his wrist, if one was needed, Crittendon said.

Unlike the four previous lethal-injection executions conducted inside San Quentin, Babbitt's body appeared to react as the three powerful drugs entered his bloodstream. He yawned heavily, apparently as the heavy dose of tranquilizer hit him, then convulsed as the other 2 drugs -- one to stop his breathing, another to stop his heart -- were administered. He was pronounced dead within 8 minutes at 12:37 a.m.

Manuel Babbitt had been scheduled to die at one minute after midnight, but even the half-hour delay was unusual in the manner in which it occurred.

In past executions, prison officials have rushed to conduct their "ritual" as soon as court rulings are handed down. The very timing of them -- 12:01 a.m. -- gives them as much time as possible to fight off court appeals during the life of the 24-hour death warrants.
This time was different, however.

Shortly after 11 p.m., the state Department of Corrections said it had decided to voluntarily push back the procedure until the U.S. Supreme Court was given one last chance to review the case.

Even after the high court declined to intervene, there was a slow-paced, almost leisurely progression toward the end.

Now that it is over, William Babbitt said he will take his brother's body back to Massachusetts and bury him next to their father, who died when the 2 were teenagers.

(Sam Stanton was one of 14 media witnesses to the execution. M.S. Enkoji reported from inside San Quentin)



Manuel Babbitt was convicted of murdering an elderly Sacramento woman.

Babbitt, 49, was sentenced to death for murdering Leah Schendel, 78, while robbing her retirement complex apartment in December 1980. The coroner said she died of a heart attack brought on by a severe beating and possible suffocation.

Babbitt was convicted of murder, robbery and attempted rape. He was also convicted of robbing and attempting to rape another Sacramento woman, whom he grabbed and beat unconscious the following night.

Babbitt did not deny the attacks. But he claimed insanity or diminished capacity because of head injuries suffered at age 12 and aggravated during 2 combat tours as a Marine in Vietnam.

State and federal courts have upheld his convictions and sentence, and the Supreme Court denied review of his appeal.

Leah Schendel had a large and close family and had spent the evening of her murder with her siblings.  Her brother and sister-in-law drove her home and walked her to the door.  As they left, they saw a man walking nearby. 

Later that night, Leah's apartment was ransacked; the intruder had cut through her screen door and viciously attacked her.  Leah was only 5 feet tall and weighed less than one hundred pounds.  Her brutally beaten body was found partially undressed, under a mattress in the bedroom. 

Babbitt's request for clemency was denied by the governor of California.



177 F.3d 744

Manuel Pina Babbitt, Petitioner,
Jeanne Woodford, Acting Warden, California State Prison At San Quentin, Respondent

United States Court of Appeals,
Ninth Circuit.

May 3, 1999

Before: BRUNETTI, THOMPSON and HAWKINS1, Circuit Judges.


Manuel Pina Babbitt, a California state prisoner sentenced to die tomorrow morning at 12:01 a.m., has filed a motion for a stay of execution and an application for leave to file a successive petition for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b)(3) (1998). The Supreme Court of California this afternoon denied Babbitt's latest habeas petition and request for a stay of execution. We have jurisdiction under 28 U.S.C. § 2244, and we deny the motions Babbitt now presents to this court.

* Manuel Pina Babbitt was found guilty of the first-degree murder of Leah Schendel after she died of heart failure during Babbitt's commission of a burglary, robbery, and attempted rape. During his trial, Babbitt relied on a mental-state defense, which included both expert testimony of Post Traumatic Stress Disorder ("PTSD") stemming from Babbitt's Vietnam experiences and testimony of family members about his deteriorating mental condition and often strange behavior. On April 20, 1982, a California jury convicted Babbitt of all charges. On May 8, 1982, Babbitt was found sane. On July 6, 1982, Babbitt was sentenced to death.

In 1988, the California Supreme Court rejected Babbitt's consolidated appeal and habeas corpus petition and unanimously affirmed Babbitt's conviction and death penalty judgment. See People v. Babbitt, 45 Cal.3d 660, 248 Cal.Rptr. 69, 755 P.2d 253 (Cal.1988). The United States Supreme Court denied certiorari. See Babbitt v. California, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 981 (1989).

On June 1, 1989, the California Supreme Court denied Babbitt's second petition for writ of habeas corpus. After further state habeas proceedings to exhaust unexhausted claims, Babbitt filed an amended habeas petition in the federal district court. The district court denied the petition, and we affirmed that denial in Babbitt v. Calderon, 151 F.3d 1170 (9th Cir.1998), cert. denied., --- U.S. ----, 119 S.Ct. 1068, 143 L.Ed.2d 72 (1999).

Babbitt then filed a fourth habeas petition in the California Supreme Court. That court denied the petition, and Babbitt has now filed in this court an "Emergency Motion for Leave to File a Second Petition for Writ of Habeas Corpus" in the district court. In that motion, he requests a stay of execution for thirty days so that he may brief the issues he presents and, "if necessary, seek further review from the United States Supreme Court."


The petition which Babbitt asks this court to permit him to file is a successive petition, subject to the "extremely stringent" requirements of the AEDPA. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.1997).

Except under extremely narrow circumstances, not present here, section 2244(b)(1) of the AEDPA requires the dismissal of claims that were previously presented in a federal habeas petition. See Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th Cir.1997), aff'd, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). Claims that were not previously presented must also be dismissed unless either (1) they rely on a new rule of constitutional law or (2) the petitioner makes a prima facie showing that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "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 the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2).

We have interpreted this last prong as permitting a petitioner to establish by clear and convincing evidence that, " 'but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.' " Thompson v. Calderon, 151 F.3d 918, 923 (9th Cir.1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)), cert. denied., --- U.S. ----, 119 S.Ct. 3, 141 L.Ed.2d 765 (1998).

We address each of the claims Babbitt proposes to raise in the district court, if he were authorized to do so.

Babbitt argues that, because of his trial counsel's alcohol abuse, his counsel was ineffective during the guilt, sanity, and penalty phases of Babbitt's trial. Babbitt contends he was unable to raise this argument in the amended petition he previously filed in the district court because he only recently discovered the evidence while preparing for his clemency hearing. The recent discoveries include his trial counsel's recent resignation from the State Bar as a result of a legal malpractice action alleging that he had been drinking during the trial. This information caused Babbitt's habeas counsel to re-interview the trial counsel's legal staff, who revealed that trial counsel had drunk "three or four drinks" on a "number of occasions" during the lunch recesses of Babbitt's trial.

Babbitt raised an ineffective assistance of trial counsel claim in his amended habeas petition he previously filed in the district court. A "ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.... Identical grounds may often be proved by different factual allegations...." United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998) (internal quotations and citations omitted).

In his previously filed federal habeas petition, Babbitt argued that his counsel failed to sufficiently present a PTSD defense at the guilt phase or as mitigating evidence at the penalty phase. We rejected both of his arguments under the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Babbitt, 151 F.3d at 1174, 1175-76.

Although Babbitt asserts new factual explanations for his counsel's ineffectiveness at trial, the gravamen of his legal argument is essentially the same. Because we have already determined that trial counsel's performance during the guilt, sanity, and penalty phases was not constitutionally deficient, we will not consider new factual grounds in support of the same legal claim that was previously presented. See Allen, 157 F.3d at 664. Under the AEDPA, a legal claim considered previously must be dismissed. See 28 U.S.C. § 2244(b)(1).

Even if we were to conclude that Babbitt's ineffective assistance of counsel claim (now grounded on allegations of his counsel's alcohol abuse during trial) was not previously presented, we would nonetheless deny Babbitt's application to file a successive petition on this ground because Babbitt fails to make a prima facie showing that he could not have previously discovered the facts underlying his claim through the exercise of due diligence. See 28 U.S.C. § 2244(b)(2); Siripongs v. Calderon, 167 F.3d 1225, 1226 (9th Cir.1999).

The recent allegations of alcohol abuse during Babbitt's trial stem from two of Babbitt's trial counsel's staff members. These persons were known to Babbitt as early as 1991. Given Babbitt's focus on his trial counsel's ineffectiveness, a claim he has asserted from the beginning of his state habeas applications and in his amended habeas petition previously filed in the district court, there is no reason, other than lack of due diligence, to explain Babbitt's failure to include in his previous federal habeas petition the allegations he now makes concerning his trial counsel's alcohol abuse. Cf. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (fact that petitioner did not possess or could not reasonably have obtained certain evidence does not excuse failure to raise claim earlier "if other known or discoverable evidence could have supported the claim in any event"). Because Babbitt would be unable to meet the AEDPA's due diligence requirement, we would be required to reject this claim in any event. See 28 U.S.C. § 2244(b)(2).

Babbitt, an African-American, also contends his trial counsel was racially biased and that this bias created a structural error that impeded his opportunity for a fair trial and sentence. Specifically, Babbitt argues that his counsel failed to interview African-American witnesses, failed to protest when the prosecutor dismissed African-American venire persons via peremptory challenges, and failed to communicate adequately with Babbitt.

Because Babbitt did not raise this argument in his previously filed federal habeas petition, and the claim does not rely on a new rule of constitutional law, we must determine whether Babbitt makes a prima facie showing of due diligence under 28 U.S.C. § 2244(b)(2)(B). See Martinez-Villareal, 118 F.3d at 631.

Babbitt argues that he did not become aware of his trial counsel's alleged race bias until he recently learned that his counsel was being sued for discriminatory practices by a former secretary. While investigating the former secretary's allegations, Babbitt's habeas counsel re-interviewed Babbitt's brother, William Babbitt, and learned that Babbitt's trial counsel had used a racial epithet and spoken negatively of the capabilities of African-American jurors while meeting with William Babbitt and his wife prior to Babbitt's trial in 1982.

Most of the facts Babbitt alleges about his counsel's alleged race bias have been known to him since the conclusion of his trial. He knew, for example, that he was an African-American defendant charged with an interracial crime against a white woman and tried with an all-white jury, a white judge, and a white defense attorney. His counsel's failure to question the members of the jury about their potential race bias and to protest the peremptory challenge of African-American jurors was also plainly ascertainable by reviewing the record.

These facts, in themselves, provided sufficient factual predicates to trigger Babbitt's obligation to raise a racially biased counsel claim in his previously filed federal habeas petition. Due diligence by Babbitt's habeas counsel would also have uncovered trial counsel's alleged racially derogative remarks to Babbitt's brother, who was called as a witness during the trial.

We conclude that the factual predicates underlying Babbitt's racial animus claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(b)(2)(B); cf. McCleskey, 499 U.S. at 497. Accordingly, we must reject this claim under the AEDPA. See 28 U.S.C. § 2244(b)(2).


Although we need not address the second prong of 28 U.S.C. § 2244(b)(2), given our determination that Babbitt failed to exercise due diligence in both of his first two claims, we also note that Babbitt's ineffective assistance claim stemming from his counsel's alleged alcohol abuse and his racial animus claim would also fail under the AEDPA because the facts underlying these claims, if proven, would be insufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found Babbitt guilty of the underlying offense or eligible for the death penalty under California law. See Thompson, 151 F.3d at 923; LaGrand v. Stewart, 170 F.3d 1158, 1999 WL 104754, at * 1 (9th Cir. Feb.26, 1999).

In other words, Babbitt's claims, even if they were proven, do not establish actual innocence of either the murder of Ms. Schendel or the special circumstance findings that made Babbitt eligible for the death penalty, which findings were that the murder was committed while the defendant was engaged in the commission of a robbery, attempted rape, and burglary. See People v. Babbitt, 248 Cal.Rptr. 69, 755 P.2d at 259 (citing Cal. Pen.Code § 190.2(a)(17)(i), (iii) & (vii) (1988)).


For the reasons set forth above, Babbitt's "Emergency Motion for Leave to File a Second Petition for Writ of Habeas Corpus" and his motion for a stay of his execution are DENIED.



Judge Hawkins was drawn by lot to replace Judge Hall, a previous member of this panel, when Judge Hall by reason of her senior status elected not to continue as a member of the panel



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