Brown v. Poole

• Citation: 337 F.3d 1155
• Decision Date: 04 August 2003
• Docket Number: No. 01-56660.,01-56660.
• Parties: Liza BROWN, Petitioner-Appellant, v. Susan E. POOLE, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

337 F.3d 1155

Liza BROWN, Petitioner-Appellant, v. Susan E. POOLE, Respondent-Appellee.

No. 01-56660.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2003.

Filed August 4, 2003.

Ronnie Beth Lasky, Proskauer Rose LLP, Los Angeles, CA, for the petitioner-appellant.

David F. Glassman, Deputy Attorney General, State of California, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-00-10482-DT.

Before: BROWNING, B. FLETCHER, and SILVERMAN, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER; Dissenting opinion by Judge SILVERMAN.

BETTY B. FLETCHER, Circuit Judge:

Liza Ann Brown petitions for a writ of habeas corpus. Brown was charged with first-degree murder for shooting her husband in what she claimed was self-defense. She and her husband were in the process of divorce when he came into her living area and, she claims, violently demanded a share of the proceeds from the sale of a car to which she was entitled by their separation agreement. Brown now asks that the court order specific enforcement of the terms of her 1986 plea agreement on the reduced charge of second-degree murder: i.e., order her release from prison. She argues that the terms of the plea agreement clearly stated that if she did not incur disciplinary infractions during her time in prison, she would be released in half of the fifteen(or seventeen-) year minimum term stipulated in the agreement. She has now served more than seventeen years in prison, without disciplinary infractions and without being paroled. We grant the writ.

I. FACTS AND PROCEDURE

After Brown's trial was underway, but prior to commencement of her defense, the prosecutor reached a "negotiated settlement" with her lawyer to reduce the first-degree murder charge to second-degree murder in exchange for her guilty plea. This plea agreement was oral. The plea colloquy was conducted by the prosecutor, who asked Brown the necessary questions and conveyed the terms of the agreement. We reproduce the relevant sections of it in full:

PROSECUTOR: The deal is that we will not proceed on the murder in the first degree. The murder in the first degree is punishable by 25 years to life in state prison. Murder in the second degree is punishable by 15 years to life in the state prison. The use of a firearm, your personal use of a firearm, a handgun in this case, makes you ineligible for probation. The judge must send you under the law to the state prison. Do you understand that?

BROWN: I do.

[Following is a page of discussion of the potential two-year enhancement for personal use of a firearm, regarding which the government promised neutrality.]

PROSECUTOR: Now other than what I have told you right now in court today at this moment, [have] there been any other promises made to you of lesser sentence, probation, reward, immunity, anything else, in order to have you change your plea to guilty?

BROWN: No, not at all.

PROSECUTOR: All right. What I have said today right now to you in open court, that's the deal as you understand it; is that correct?

BROWN: Yes, I do.

PROSECUTOR: Have you discussed this case thoroughly with your attorney, Mr. Castillo?

BROWN: Yes, we have.

PROSECUTOR: And have you discussed it with other members of your family and friends who might give you some input into this case?

BROWN: No.

PROSECUTOR: Well, are you satisfied that you understand what's going on?

BROWN: Yes, I do.

PROSECUTOR: You are entering this plea freely and voluntarily, is that correct?

BROWN: Yes, I do.

PROSECUTOR: Now in order to accept a plea of guilty from you — well, I should tell you further that when you are sentenced to the state prison, you must serve a minimum of half of that sentence in the state prison; do you understand that?

BROWN: Yes, I do.

PROSECUTOR: Now, if you behave yourself at the state prison, as most people do, and I am inclined to believe that you will, you are going to get out in half the time. You get half of that 15 years off, or half of that 17 years off with the imposition of the extra two years, for good time/work-time credits. That's up to you. Do you understand that?

BROWN: Yes.

PROSECUTOR: Okay. So you kind of got the key to the door in your pocket when you get up there.

BROWN: Okay.

PROSECUTOR: If you mess up in the state prison, you are liable to be there until they feel that it is satisfactory that you can be released. But under no circumstances are you going to be released in less than half of that 17 years. Do you understand that?

COURT: Or half of the 15 years.

PROSECUTOR: Or half of the 15, if you so choose to stay that extra two years. Do you understand that?

BROWN: Yes, I do.

After more than seven additional transcript pages' worth of colloquy with the prosecutor, none of it relevant here, the court made the necessary findings as to knowing and voluntary entry into the plea and then accepted her plea. At sentencing, the court did not impose the two-year enhancement. Brown began serving her 15 years-to-life prison sentence on March 27, 1986.

II. DISCUSSION

A. STATUTORY TOLLING

As a preliminary matter, the state argues that Brown's claim is barred by the one-year time limit that the Antiterrorism and Effective Death Penalty Act ("AEDPA") allows for bringing a federal habeas petition. 28 U.S.C. § 2244(d). This limit is tolled while the petitioner's case is pending before the state courts. Id.; see Carey v. Saffold, 536 U.S. 214, 225, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (construing tolling under California's indeterminate system as turning on petitioner's unreasonable delay in seeking higher court review), id. at 220, 122 S.Ct. 2134 ("until the application [for state collateral review] has achieved final resolution through the State's post-conviction procedures, by definition it remains `pending.'"). Brown, after filing her state habeas petition in the Superior Court of California, asked that it be taken off calendar for a time in the hope and expectation that her upcoming parole hearing would render it moot. After parole was denied, she asked the court to return the case to calendar, and moved for reconsideration of her habeas petition, which the Superior Court denied. The district court declined to address the AEDPA statute of limitations issue, finding that it could resolve the case on the merits. We consider this question de novo. Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir.2002).

The state urges that Brown does not warrant statutory tolling for the period during which her habeas petition was removed from the court calendar. But Brown had not abandoned her claim for post-conviction relief during this period; she had merely asked that it be taken off calendar for what no one has argued were other than legitimate reasons. No lower court has found that she was not making "proper use of state court procedures," Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999) nor that in pursuing her application for habeas relief she was not "properly pursuing[her] state collateral remedies," Welch v. Newland, 267 F.3d 1013, 1016-17 (9th Cir.), mandate stayed, 269 F.3d 1124 (2001) (emphasis added), during the period during which her petition remained in the Superior Court, although not on calendar. We are not barred from hearing her petition on collateral review.

B. THE PLEA COLLOQUY

Brown asserts that she understood that if she did not violate prison disciplinary rules — a condition with which she has complied — she would be released in seven-and-a-half years.¹ The government asserts that the prosecutor had no right to, and in fact did not, promise such terms.

We construe the plea agreement using the ordinary rules of contract interpretation. "Plea agreements are contractual in nature and are measured by contract law standards." United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993). The terms of oral plea agreements are enforceable, as are those of any other contracts, even though oral plea agreements are not encouraged by reviewing courts. See, e.g., United States v. Monreal, 301 F.3d 1127, 1133 (9th Cir.2002).

While interpretation of the terms of a plea agreement often rests on questions of fact, this one rests on a question of law. There is no factual dispute about what the prosecutor said to Brown during the colloquy. Although the initial understanding when counsel agreed to halt the trial was apparently that the charge would be reduced from first-degree murder and that Brown would plead to second-degree murder, the prosecutor added other concessions before the judge accepted the plea. The question is whether the additional concessions are binding. Brown's due process rights conferred by the federal constitution allow her to enforce the terms of the plea agreement. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled."); see also United States v. Hallam, 472 F.2d 168, 169 (9th Cir.1973) ("It is clear from Santobello ... that due respect for the integrity of plea bargains demands that once a defendant has carried out his part of the bargain the Government must fulfill its part.").

Until the judge accepted Brown's plea, the terms of the contract were not fixed. Thus, the material term promising relief when half the minimum sentence was completed disciplinary-free was part of the agreement at the time the judge accepted the plea. The agreement that Brown would waive her constitutional rights in exchange for a reduced sentence was accepted and final only at the moment that the judge made the requisite factual findings and accepted the plea. Cal.Penal Code § 1192.5. This occurred after the prosecutor promised Brown that she would be released...