Hiivala v. Wood, 98-35265

• Decision Date: 13 April 1999
• Docket Number: No. 98-35265,98-35265
• Citation: 195 F.3d 1098
• Parties: (9th Cir. 1999) TODD HIIVALA, Petitioner-Appellant, v. TANA WOOD, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1098

195 F.3d 1098 (9th Cir. 1999)

TODD HIIVALA, Petitioner-Appellant, v. TANA WOOD, Respondent-Appellee.

No. 98-35265

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted April 13, 1999¹

Opinion filed September 13, 1999

Opinion Withdrawn October 29, 1999

Filed October 29, 1999

[Copyrighted Material Omitted]

L. Song Richardson, Assistant Federal Defender, Tacoma, Washington, for the petitioner-appellant.

Paul D. Weisser, Assistant Attorney General, Olympia, Washington, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. No. DC-97-05271-RJB.

Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Robert J. Kelleher, District Judge.²

ORDER

The petition for rehearing is granted. The opinion filed September 13, 1999 is withdrawn. A new opinion will be filed.

OPINION

PER CURIAM:

Todd Hiivala ("Hiivala"), a Washington state prisoner, appeals the district court's dismissal of his 28 U.S.C. S 2254 habeas petition challenging his conviction for first-degree murder and three counts of criminal solicitation to commit first-degree murder. The district court dismissed Hiivala's habeas petition with prejudice.

A motions panel of this court issued a certificate of appeal ability ("COA") limited to the issues of procedural default and exhaustion. As to the procedural default issue, Hiivala contends he has demonstrated cause for failing to file a timely personal restraint petition in state court, and has satisfied the prejudice requirement. As to the exhaustion issue, he contends he exhausted his federal due process claim of insufficiency of the evidence by presenting that claim to the Washington Supreme Court. Hiivala also raises other issues not specified in the COA.

We have jurisdiction under 28 U.S.C. SS 1291 and 2253. We decline to consider the issues not specified in the COA,and we affirm the district court's denial of Hiivala's petition for a writ of habeas corpus.

I

In March 1987, Hiivala and Ronald Chenette ("Chenette") drove from Vancouver, Washington, to Portland, Oregon, to buy marijuana. In Portland, they met a young man, James Turner, who said he could get marijuana for them. After Turner failed in that endeavor, Hiivala and Chenette decided to take him outside the city and make him walk back to Portland. When Turner refused to get out of the car, a struggle ensued and Hiivala stabbed Turner in the neck with a knife. Turner struggled out of the car and ran into the woods. Hiivala and Chenette chased after him. The three men slid down an embankment, and Turner was stabbed repeatedly and killed. His body was concealed in the woods.

Hiivala was arrested for Turner's murder and was housed in the Clark County Jail. There, he met Ralph Maring ("Maring"), who, according to Hiivala, was connected with the Mafia. Maring testified that Hiivala approached him and asked if he knew anyone who could "get rid" of the witnesses against Hiivala and dispose of Turner's body. After talking with an attorney and the sheriff's office, Maring presented Hiivala with a written contract the sheriff's office prepared. The contract provided for killing the witnesses and disposing of Turner's body. Hiivala signed the contract, agreeing that in exchange for the murders he would pay $175,000 or work as an "assassinator." The contract also provided that if Hiivala performed his part of the bargain, Chenette would also be killed. Maring turned the contract over to the sheriff's office.

The state of Washington (the "State") charged Hiivala with one count of murder in the first degree and with three counts of solicitation to commit murder in the first degree. A jury found Hiivala guilty on all counts. He was sentenced to 285 months for the murder and 180 months for each of the solicitation charges, all to be served consecutively.

The Washington Court of Appeals affirmed Hiivala's conviction and sentence. Through counsel, Hiivala sought discretionary review by the Washington Supreme Court. Hiivala also submitted a pro se supplemental petition for review³. The Washington Supreme Court denied the petitions without comment. Hiivala filed neither a personal restraint petition nor any other collateral relief action in the Washington courts.

In April 1997, Hiivala filed a petition for a writ of habeas corpus in the federal district court. The petition, as amended, alleged eight grounds for relief: (1) Hiivala's right to counsel was violated when the police continued to question him after he requested counsel; (2) his right to counsel was violated when the police housed a police informant in his jail cell to obtain incriminating information; (3) the conduct of the police was so shocking as to violate fundamental fairness; (4) Hiivala's murder conviction violated the Fifth and Sixth Amendments because the trial court failed to prove jurisdiction; (5) the trial court improperly joined the murder and solicitation for murder charges; (6) there was insufficient evidence of premeditation to support the murder conviction; (7) Hiivala's sentence constituted cruel and unusual punishment; and (8) he was denied effective assistance of counsel at trial and on appeal.

On February 3, 1998, the district court, adopting a magistrate judge's report and recommendation, concluded that, except for claims 2, 3, and 8, Hiivala had failed to exhaust his claims in state court. As to the exhausted claims, the district court held they did not warrant habeas relief. The district court denied Hiivala's habeas petition and dismissed it with prejudice.

The district court then denied Hiivala's request for a certificate of appeal ability. Hiivala renewed that request in this court, asking for permission to brief and argue four claims: (1) lack of jurisdiction on the part of the trial court; (2) denial of the motion for severance; (3) insufficiency of the evidence to support his first-degree murder conviction; and (4) ineffective assistance of counsel. A motions panel of this court issued a COA. It decided, however, not to include in the COA Hiivala's claims that he received constitutionally ineffective assistance of counsel, that the trial court lacked jurisdiction, and that the trial court erred in denying his motion for severance. The COA issued by the motions panel limited the scope of appellate review to two issues: "whether [Hiivala] demonstrated `cause' for his failure to file a timely Personal Restraint Petition; and whether [Hiivala] fairly presented his claim that there was insufficient evidence of premeditation to support his conviction for murder to the Washington Supreme Court."

With regard to the first issue, if Hiivala's state procedural default in failing to file a timely personal restraint petition is not excused, all of the habeas claims he seeks to raise in this appeal are barred from federal review except the claims to which the procedural bar arguably would not apply, namely, his insufficiency of the evidence claim and the issues which he asks us to review by expanding the COA.

Before we address these issues, however, there are two threshold questions we must answer: (1) Does the Antiterrorism and Effective Death Penalty Act limit the scope of our appellate review to the issues specified in the COA? (2) If it does, should we expand those issues to include issues not certified by the motions panel?

II

The Antiterrorism and Effective Death Penalty Act of 1996, amended at 28 U.S.C. S 2253 (the "AEDPA"), limits the scope of review in a habeas appeal to issues specified in the COA. See Murray v. United States, 145 F.3d 1249, 125051 (11th Cir. 1998); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).

A plain reading of the AEDPA ineluctably leads to the conclusion that certificates of appeal ability are to be granted on an issue-by-issue basis, thereby limiting appellate review to those issues alone. See Lackey, 116 F.3d at 151. Section 2253(c) of the AEDPA provides:

(1) Unless a circuit justice or judge issues a certificate of appeal ability, an appeal may not be taken to the court of appeals from

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; . . .

(2) A certificate of appeal ability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appeal ability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. S 2253(c) (1999) (emphasis added).

When Congress alters the wording of a statute, we presume that Congress intended a change in the law. See Brewster v. Gage, 280 U.S. 327, 337 (1930). The pre-AEDPA S 2253⁴ did not require that certificates of probable cause (the precursor to COAs) specify the issues for appellate review. See Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir. 1994); Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir. 1986). More importantly, S 2253 must limit appellate review to issues specified in the COA because, if it did not, allowing a habeas petitioner to raise uncertified issues would render meaningless the specification language of S 2253(c)(3). See Murray, 145 F.3d at 1250; Lackey, 116 F.3d at 152. We hold that 28 U.S.C. S 2553(c)(3) limits the issues that may be considered on appeal to those specified in a COA.

III

Hiivala contends that this panel, as the "merits panel," should broaden the scope of his appeal beyond the specification of issues allowed by the motions panel. The Advisory Committee Note to Ninth Circuit Rule 22-1, which became effective on January 1, 1999, provides in relevant part: "To the extent a party wishes to ask the merits panel to broaden the scope of the appeal beyond what was allowed by a motions panel of this court, such a motion and any response may be filed in the court of appeals promptly after the completion of...