322 F.3d 573 (9th Cir. 2002), 00-56199, Bennett v. Mueller

Docket Nº:00-56199
Citation:322 F.3d 573
Party Name:JOSEPH MURL BENNETT, Petitioner-Appellant, v. GLEN MUELLER, Warden; CALTERHUNE, Director; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees.
Case Date:May 31, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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322 F.3d 573 (9th Cir. 2002)

JOSEPH MURL BENNETT, Petitioner-Appellant,



No. 00-56199

United States Court of Appeals, Ninth Circuit

May 31, 2002

Argued and Submitted October 10, 2001,

Petition for Rehearing Granted.

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Resubmitted July 9, 2002[*]

As Amended on Denial of Rehearing En Banc March 4, 2003 Pasadena, California

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[Copyrighted Material Omitted]

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Tina Long Rippy, Esq., Attorney at Law, Whittier, California, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California; David P. Druliner, Chief Assistant Attorney General; Marc E. Turchin, Acting Senior Assistant Attorney General; Marc J. Nolan, Deputy Attorney General; Gary A. Lieberman, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding D.C. No. CV-00-00445-CBM

Before: Melvin Brunetti, Pamela Ann Rymer, and Kim McLane


WARDLAW, Circuit Judges.

The opinion published at 296 F.3d 752 (9th Cir. 2002) is hereby AMENDED as follows:

Page 760, ¶ 3: Delete the sentence beginning "While it is true" to the end of the paragraph (including fn.2), and replace with the following:

Because the California Supreme Court set out to create a rule that would be consistently applied, however, it does not follow that the rule in historical fact has been so applied. A few district courts have had the opportunity to analyze the consistency of application of the Clark rule, reaching opposing results. See, e.g., Deere v. Calderon, 890 F.Supp. 893 (C.D. Cal. 1995) (concluding that the Clark rule has been consistently applied

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in capital cases); Coleman v. Calderon, No. C 89-1906 RMW, 1996 WL 83882, at *3 (N.D. Cal. 1996) (holding that there is a "genuine question about whether California has applied [the Clark] rule consistently and regularly"), aff'd on other grounds, 150 F.3d 1105 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998). Of course, neither we nor the district court in this case is bound by these decisions.

Page 761, ¶ 1: Delete this paragraph & fn.3

Page 761,¶ 2: Delete fn.4 and insert the following text in the paragraph at the location where the footnote was marked: Thus, it was inappropriate for the district court to rely on Deere for two reasons: first, Deere analyzed the application of California's procedural bar only in capital habeas cases, 890 F.Supp. at 899, while Bennett involves a noncapital habeas case. California's rules governing timeliness in capital cases differ from those governing noncapital cases, id. at 897 (quoting California Supreme Court Policies Regarding Cases Arising From Judgments of Death, Timeliness Standards). [FN2] Second, the Deere district court followed a procedure in analyzing the question that is inconsistent with our precedent; it analyzed the basis for the state court decisions denying postconviction relief based on a post hoc examination of the pleadings and record rather than the text of the state court opinions. While we have not decided, and do not decide this precise issue in this context, our precedent suggests any review should be limited to the language of the state court opinions. See, e.g., Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir. 2002) (en banc); Bean, 96 F.3d at 1131.

[FN2] This distinction was apparently missed by the district courts in Allard v. Olivarez, No. C97-1009 FMS (PR), 1998 WL 19468 (N.D. Cal.), aff'd on other grounds, 1998 WL 598443 (9th Cir. 1998), and Washington v. Cambra, No. C97-2316 CRB (PR), 1998 WL 164967 (N.D. Cal. 1998), rev'd on other grounds, 208 F.3d 832 (9th Cir. 2000), noncapital cases that relied on Deere, as well as by the district court here, which quoted both of these cases in support of its holding

Page 761, ¶ 2: After the above insertion, delete the sentence beginning "Because the California Supreme Court . . ." and start a new paragraph before the next sentence, beginning "Because there is a genuine question . . ."

Page 762, ¶ 3: Renumber footnote 5 as footnote 3

With these amendments, the panel has voted unanimously to deny the petition for panel rehearing. Judges Rymer and Wardlaw have voted to deny the petition for en banc rehearing, and Judge Brunetti has so recommended.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for panel rehearing and for rehearing en banc are DENIED. No further petitions for rehearing will be entertained.

It is so ORDERED.


WARDLAW, Circuit Judge:

Joseph Murl Bennett appeals the district court's order adopting the Magistrate Judge's Report and Recommendation denying his Petition for Writ of Habeas Corpus on the state procedural ground of untimeliness. We must decide whether the district court erred in concluding that the Page 578

California Supreme Court's denial of Bennett's petition "on the merits and for lack of diligence" constituted an independent and adequate state ground so as to render his habeas petition procedurally defaulted. In so doing, we must determine whether the state court's reliance upon In re Clark, 5 Cal. 4th 750, 77 Cal.Rptr.2d 153 (Cal. 1993), and In re Robbins, 18 Cal. 4th 770 (Cal. 1998), for untimeliness is free from entanglement with federal law and based upon a well-established and consistently applied rule. We agree with the district court that reliance upon Clark and Robbins constitutes an independent state ground. We must reverse on the question of adequacy, however, because we cannot conclude on this record that California has regularly and consistently applied the untimeliness bar in habeas cases. We remand this question to the district court to reconsider under the appropriate burden-shifting rule, which we outline below. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm in part, reverse in part, and remand. I. Background

In 1986, Bennett pled guilty to first-degree burglary in Los Angeles Superior Court Case No. A468635. In the guilty plea form, signed by Bennett and his counsel, Bennett acknowledged: "I understand the court may send me to state prison for a maximum of 6 years." The plea agreement further provided:

"If defendant pleads in case #A470545 and #A470930, this case will be 16 months consecutive to any sentence in those cases."

At sentencing, Bennett attempted to withdraw his guilty plea and enter a plea of not guilty. He claimed it was his understanding, although his memory was, admittedly, "very vague," that he was to receive 16 months on this case regardless of whether he pled guilty in the two other cases. The trial court denied Bennett's motion and, finding the aggravating circumstances of his crime (a nighttime residential burglary) substantial, sentenced him to a prison term of six years. The trial court clarified that the other two cases remained pending; therefore, an open plea remained if he wished to plead guilty to the other cases.

Refusing to plead guilty to the remaining cases, Bennett requested a jury trial, thus terminating his plea agreement. He was convicted by jury in consolidated case Nos. A470545 and A470930 of two counts of first-degree burglary, forcible rape, forcible oral copulation, forcible sexual penetration with a foreign object, sodomy by force, and assault to commit rape. Bennett's combined sentence totaled forty-two years and four months, which was later reduced by one year, making his total term forty-one years and four months.

Bennett did not pursue a direct appeal after his guilty plea and conviction in 1986. Instead, twelve years after his conviction, in 1998, he filed a "Motion for Transcripts" in the California Superior Court, arguing that he was improperly sentenced. The Superior Court denied the motion, finding that his contention "was raised, discussed, . . . resolved . . . [and] without merit." Bennett later filed a Petition for Writ of Habeas Corpus in the Superior Court, which was denied as showing no grounds for relief. He next filed a Petition for Writ of Habeas Corpus in the same case with the California Court of Appeal, which, on May 25, 1999, denied the petition without comment or citation to authority. On July 8, 1999, Bennett filed a Petition for Writ of Habeas Corpus in the California Supreme Court, which, on November, 23, 1999, denied the petition "on the merits and for lack of diligence."

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Bennett then filed this Petition for Writ of Habeas Corpus in the United States District Court. Bennett claims that (1) the trial court erred in failing to admonish him regarding the nature and effect of the plea agreement, rendering his guilty plea unknowing and involuntary; (2) the trial court abused its discretion in failing to reasonably consider the motion to withdraw his plea; and (3) his trial counsel was ineffective...

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