Today's
two decisions, both divided, involve the timeliness of a federal habeas
petition under 28 U.S.C. § 2254. A
California petitioner wins under the terms of 28 U.S.C. § 2244(d)(1), while a
Nevada state prisoner loses under equitable tolling.
McMonagle v. Meyer,
No. 12 15360 (Duffy, DJ (SDNY), with Thomas; dissent by Rawlinson) ---
The
statute of limitations that applies to federal habeas petitions doesn't begin
to run until the case becomes final by the conclusion of "direct
review." In California, those
convicted of misdemeanors can obtain direct review as of right in the Appellate
Division of the Superior Court. Review
by higher courts -- the California Court of Appeal and the California Supreme
Court -- is discretionary, and is sought by first asking to transfer the case
from the Appellate Division to the Court of Appeal, then later by state habeas
in the California Supreme Court. Are these
last two steps part of "direct review" for a misdemeanant convicted
in a California state court? The
majority says it is, while the dissenting judge says it's not.
Lurking
in the background is another habeas requirement, the rule that demands that
exhaustion of state-court remedies. No one doubts that exhaustion demands that
the misdemeanant present his claims to the California Supreme Court. The question that divides the panel is
whether, in light of California's procedure in misdemeanor cases, the statute
of limitations should begin to run before the petitioner exhausts his
state-court remedies. For the majority,
the answer is no, because there is only one path to the state supreme court
that's available in misdemeanor cases.
For the dissent, the answer is yes, because state law doesn't treat the
mechanisms for review in the court of appeal and the state supreme court as "direct
review." But the dissent ignores a
critical aspect of the exhaustion doctrine: A state can declare that certain
steps are not part of the mechanism for seeking appellate review, as Arizona
has by expressly holding that seeking discretionary review in the state supreme
court is not a requirement for exhaustion.
See Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) (per
curiam). The dissent didn't identify any
similar statement from the California Supreme Court, which supports the
majority's characterization of the trip to the state supreme court as
"direct review" in misdemeanor cases.
The
decision is here:
Rudin v. Myles, No. 12-15362 (Murguia with O'Scannlain; dissent by
Adelman, DJ (E.D. Wis.)) ---
This case is about punishing a prisoner for a
single mistake made by her fourth lawyer, because four lawyers' mistakes are
too many to forgive. Even if state post-conviction counsel abandons the
petitioner within the meaning of Holland v. Florida, 560 U.S. 631
(2010), the diligence prong of the equitable-tolling doctrine requires her to
file a protective federal habeas petition as soon as she discovers the
abandonment -- even if the federal habeas limitations period has already
expired.
The Las Vegas Sunhas said
that the crime in this case was "noteworthy at the time in part because
after Margaret Rudin reported her husband missing, his decapitated, burned and
bullet-ridden body was found at Nelson’s Landing on the Colorado River south of
Las Vegas." The trial lasted ten
weeks, in part because the lawyer she hired to defend her was woefully
unprepared to try the case. The trial
court appointed second-chair counsel, who described the representation as
"a sham, a farce, and a mockery."
The state supreme court affirmed the conviction on direct appeal in
2004, deferring her claims of ineffective assistance of counsel to state
habeas.
State habeas proceedings began with
a protracted comedy of errors. The trial
judge recused himself from post-conviction proceedings after telling the Las
Vegas Sun, "My blood boils every time I hear the name Craig
Creel," the lawyer who represented the petitioner on direct appeal. A different lawyer had been appointed to the
state habeas case, but he did nothing on it for almost two years. Meanwhile, the court rejected the
petitioner's attempts to file papers on her own behalf, then labored under the
mistaken impression that there was a formal petition pending before it -- an
impression that the state apparently shared during that time. The petitioner got frustrated and complained
to the court that her lawyer wasn't adequately representing her. Indeed, he stopped visiting her in prison and
blocked collect calls to his office telephone.
The court appointed a new lawyer to
the state habeas case in July 2006, and the new lawyer filed a formal state
habeas petition a year later. The court
excused any late filing as Nevada law allowed, and later granted relief and
ordered a new trial. The state appealed
the grant of state habeas relief to the Nevada Supreme Court, arguing for the
first time that the state habeas petition was untimely. In 2010 the state supreme court agreed and
reversed the grant of relief in an unpublished decision. Nearly a year later, the petitioner filed a
federal habeas petition for the first time.
The district court denied the petition as untimely. The Ninth Circuit certified the timeliness
question for appeal, and then affirmed.
First, the Ninth Circuit held that
the petitioner was not entitled to statutory tolling. The Nevada Supreme Court had concluded that
the state habeas petition was untimely, which meant that it was not
"properly filed" under 28 U.S.C. § 2244(d)(2) and Pace v.
DiGuglielmo, 544 U.S. 408 (2005).
Second, the Ninth Circuit held that
the petitioner was not entitled to equitable tolling. Equitable tolling requires a showing of
extraordinary circumstances and diligence.
The court first agreed, under Holland v. Florida, 560 U.S. 631
(2010), that the petitioner had been abandoned by her first state habeas
lawyer. It also said she was diligent in
pursuing her rights while the first lawyer was on her case, because she
attempted to file pro se documents during that time. But the court held that she was not diligent
during the period when her second state habeas lawyer was representing
her. Once her second lawyer learned that
no state habeas petition had ever been filed on her behalf, she (or her
counsel, who continued to represent her in federal court) should immediately
have filed a protective federal habeas petition. Because the petitioner had offered no
"compelling reason" for failing to do so, she was not entitled to
equitable tolling.
"At this point," the
majority said, washing its hands of the consequences of its decision,
"Rudin is still in prison, having served 13 years of her life sentence for
murder. We know from the state
post-conviction court that the State's proof of guilt at that trial was not a
slam dunk by any stretch of the imagination.
We also know from the post-conviction court that, had Rudin been
represented by competent counsel, the jury's verdict may have been different. Thus, what we do not know is whether Rudin is
lawfully imprisoned. And, regrettably,
that is something we may never know."
In dissent, District Judge Adelman
said that this was "a compelling case for equitable tolling." If the state habeas court had accepted her pro
se filings, she would have received statutory tolling for the time her case
was in state habeas. And she had no
reason to file a protective federal habeas petition, because she thought (as
did the state habeas judge and the state's lawyers) that a state habeas
petition had been filed. And by
the time she found out that no petition had been filed, both the state and
federal habeas deadlines had passed.
"It would have been pointless for Rudin to file a 'protective'
habeas petition pursuant to Pace because, unlike in Pace, there
was nothing to protect." Moreover,
the state's lawyers were not pursuing a time-bar defense in the state habeas
trial court, which might have led her to believe that they would not do so in
federal court -- another reason not to file a protective federal petition. And she did not need to file one while the
state appealed the grant of state habeas relief. "If ever there was a case in which the
deadlines need to be relaxed to avoid a miscarriage of justice, this is
it."
One final comment on this case; the
state neglected to submit the entire state-court record to the district court
along with its answer. Before the Ninth
Circuit, the state moved to supplement the record on appeal with the remaining
portions of the state-court record. The
panel denied this motion, deeming the documents unnecessary to its resolution
of the appeal. The better approach to
this situation would be simply to submit the documents to the court of appeals,
citing 28 U.S.C. § 2254(g) and Jones v. Wood, 114 F.3d 1002, 1008 (9th
Cir. 1997) ("Where review of the entire state court record is necessary
and the parties have failed to supply the court with that record, the district
court has the duty to obtain that record itself.").
The decision is here:
posted by Jon Sands at 9/10/2014 03:12:00 PM
0 Comments:
Post a Comment
<< Home