Wednesday, September 10, 2014

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:


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