661 F.3d 1001 (9th Cir. 2011), 08-55165, Doe v. Busby

Docket Nº:08-55165, 08-55280.
Citation:661 F.3d 1001
Opinion Judge:M. SMITH, Circuit Judge:
Party Name:John DOE, Petitioner-Appellee, v. Timothy E. BUSBY, Warden, Respondent-Appellant. John Doe, Petitioner-Appellant, v. Timothy E. Busby, Warden, Respondent-Appellee.
Attorney:Michael Katz, Deputy Attorney General, Los Angeles, CA, for the respondent-appellant. Alexandra Wallace Yates (argued), Sean J. Bolser, Deputy Federal Public Defenders, Los Angeles, CA, for the petitioner-appellee.
Judge Panel:Before: HARRY PREGERSON, ROBERT R. BEEZER, and MILAN D. SMITH, JR., Circuit Judges.
Case Date:October 24, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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661 F.3d 1001 (9th Cir. 2011)

John DOE, Petitioner-Appellee,

v.

Timothy E. BUSBY, Warden, Respondent-Appellant.

John Doe, Petitioner-Appellant,

v.

Timothy E. Busby, Warden, Respondent-Appellee.

Nos. 08-55165, 08-55280.

United States Court of Appeals, Ninth Circuit.

October 24, 2011

Argued and Submitted June 23, 2011.1

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Michael Katz, Deputy Attorney General, Los Angeles, CA, for the respondent-appellant.

Alexandra Wallace Yates (argued), Sean J. Bolser, Deputy Federal Public Defenders, Los Angeles, CA, for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. No. CV-04-02990-AHM.

Before: HARRY PREGERSON, ROBERT R. BEEZER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Respondent Timothy E. Busby, the warden of Ironwood State Prison in California (collectively with the state prosecution, the State), appeals the district court's order granting Petitioner John Doe a conditional writ of habeas corpus. The district court granted the writ on the ground that the California state jury which convicted Doe was improperly charged that it could find him guilty of murder and domestic violence so long as it found by a preponderance of the evidence that he had perpetrated prior unadjudicated acts of domestic violence. Following an evidentiary hearing to determine whether Doe's Petition for a Writ of Habeas Corpus (the Petition) was timely, the magistrate judge concluded that it was and further concluded that a conditional writ should issue in light of the deficient jury instructions, the 1996 versions of California Jury Instructions, Criminal (CALJIC) Nos. 2.50.02 and 2.50.1. The district court made additional findings regarding Doe's diligence in attempting to timely file the Petition, adopted the magistrate judge's recommendation, and issued a conditional writ. The State appeals the district court's determination that the Petition was timely and the decision to grant a conditional writ. Doe cross-appeals that the district court erred by not granting habeas relief on the alternative ground that retroactive application of California Evidence Code § 1109 violated the Ex Post Facto Clause of the United States Constitution. We reject the arguments of both appeals, and affirm.

BACKGROUND

I. State-Court Trial & Conviction

In an Information filed March 4, 1997, the State charged Doe with murdering his wife, Jane Roe, as well as perpetrating acts of domestic violence and making threats against Roe.2 Count 1 of the Information charged that Doe used a firearm to commit first-degree murder of Roe on December 6, 1996, and Count 2 charged that he committed grand theft of the firearm used in the killing. The State made special allegations that Counts 1 and 2 occurred while Doe was out of custody on bail. See Cal.Penal Code § 12022.1. Counts 3, 4, and 5 alleged respectively that Doe committed assault and battery and made terrorist threats against Roe during an argument on October 10, 1996. Doe

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pled not guilty to all charges and denied the special allegations.

At a pretrial hearing on June 20, 1997, the trial court granted the State's motion to allow testimony about prior instances of domestic violence allegedly perpetrated by Doe. The trial court denied Doe's motion to sever the murder charges and domestic violence charges.

The evidence adduced at Doe's trial showed that on October 10, 1996, Roe called the police, accusing Doe of physical abuse. Doe was arrested and released on bail posted by his former girlfriend. The Los Angeles County District Attorney's Office filed spousal abuse and terrorist-threat charges against Doe. Doe was scheduled to be arraigned on these charges on December 6, 1996.

On the morning of December 6, Roe drove Doe to court for his arraignment. During the drive, Roe and Doe stopped at the former girlfriend's house so that Doe could obtain money from the former girlfriend. The California Court of Appeal summarized Doe's version of the events which culminated in Roe's death from a gunshot wound to her shoulder:

[Roe] was driving [Doe] to court when she stopped at [the former girlfriend's] house so that[Doe] could get some money. [Doe] asked [the former girlfriend] to bring the money down, but [the former girlfriend] told [Doe] to come upstairs. [Roe] told [Doe] that she would shoot and kill him if he got out of the car. [Roe's] hand was in her purse. When [Doe] told [the former girlfriend] he was not coming upstairs,[the former girlfriend] said to send [Roe] up.[Roe] said, " I will get that bitch," then drove her car backwards through a stop sign and said to [Doe], " I know you are gonna to leave me." [Roe] accused [Doe] of having sex with [the former girlfriend], then pulled a gun out of her purse and pointed it at [Doe]. As [Doe] struggled with [Roe] for the gun, it fired. [Doe] called [the former girlfriend] because, when he tried to call 9-1-1, he got a busy signal. [Doe] maintained that he did not intend to shoot [Roe] but struggled with her for the gun to prevent [Roe] from shooting him.

Pursuant to California Evidence Code § 1109,3 the State introduced evidence of Doe's prior unadjudicated acts of domestic violence against women. The California Court of Appeal summarized that this evidence " established that [Doe] has hit and slapped several women, including murder victim [Jane Roe]." The prosecution introduced evidence about the alleged October 10, 1996 assault by Doe against Roe that resulted in the initial charges against Doe.4 Specifically, witnesses recounted that Roe had told the police, when obtaining a temporary restraining order against Doe, that Doe had punched her " on the face and body several times."

The former girlfriend testified that when she dated Doe, each of them had hit and slapped the other. The former girlfriend also testified that she had reported abusive behavior by Doe to the police and had

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obtained a restraining order against him.5 Another of Doe's prior girlfriends testified that he had abused her during their relationship by slapping her in the face on two separate occasions. The woman testified that she also obtained a restraining order against Doe, but that they continued to have some contact with one another despite the restraining order.

At the close of evidence, the trial court dismissed Count 4, which alleged assault with a deadly weapon during the October 10, 1996 incident, as duplicative of Count 3 concerning infliction of corporal injury to a spouse. When the trial court then instructed the jury, it gave instructions on the substantive crimes in the following order. First, the trial court instructed the jury on Count 1 for murder, Cal.Penal Code § 187, and its lesser-included offenses and other related issues. The trial court then charged the jury on Count 2 for theft by larceny, Cal.Penal Code § 487, and related issues. Then, the trial court charged Count 3 for spouse or cohabitant beating, Cal.Penal Code § 273.5, and personal use of a dangerous and deadly weapon, Cal.Penal Code § 12022(b). The trial court then read two charges from the 1996 version of CALJIC Nos. 2.50.02 and 2.50.1. Those instructions provided:

[CALJIC 2.50.02]

Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence 6 (on one or more occasions) other than that charged in the case....

...

If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar-type offenses. If you find that the defendant had this disposition, you may, but are not required, to infer that he was likely to commit and did commit the crime of which he is accused.

You must not consider this evidence for any other purpose.7

[CALJIC 2.50.1]

Within the meaning of the preceding instruction, the prosecution has the burden

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of proving by a preponderance of the evidence that [the] defendant committed the crimes other than that for which he is on trial.

You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that [the] defendant committed other crimes.

The trial court defined the preponderance standard and then read instructions relating to the lesser-included offense of Count 3 for battery, Cal.Penal Code § 243(e). The trial court read the terrorist threats charge, Cal.Penal Code § 422, and other concluding instructions not relevant for our purposes.

The jury convicted Doe on Count 1 for first degree murder, Count 3 for committing corporal injury to a spouse, and Count 5 for making terrorist threats. The jury acquitted Doe on Count 2 for grand theft of the firearm that killed Roe. Doe was sentenced to a term of thirty-one years to life imprisonment.8 The California Court of Appeal affirmed his conviction and sentence on March 24, 1999. The California Supreme Court denied Doe's petition for review on June 24, 1999.9

II. Post-Conviction Collateral Proceedings

Although Doe's state conviction became final in September 1999, see Sup.Ct. R. 13.1, Doe did not file the instant federal Petition until April 28, 2004. The pro se Petition was referred to Magistrate Judge Walsh. The State moved to dismiss the petition as untimely under the one-year limitations period established by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). The magistrate judge recognized Doe...

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