Hall v. Haws

• Decision Date: 03 July 2017
• Docket Number: No. 14-56159,14-56159
• Citation: 861 F.3d 977
• Parties: Willard James HALL, Petitioner-Appellee, v. F.W. HAWS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

861 F.3d 977

Willard James HALL, Petitioner-Appellee,

v.F.W. HAWS, Respondent-Appellant.

No. 14-56159

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2015, Pasadena, California

Filed July 3, 2017

Matthew Mulford, Deputy Attorney General; Kevin Vienna, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellant.

Holly A. Sullivan and Robert H. Rexrode, San Diego, California, for Petitioner-Appellee.

Before: Harry Pregerson and Consuelo M. Callahan, Circuit Judges and Stanley Allen Bastian,^* District Judge.

Dissent by Judge Callahan

OPINION

PREGERSON, Circuit Judge:

This is a rare and extraordinary case. On July 7, 2001, Ronnie Sherrors and Petitioner Willard Hall as co-defendants were convicted of first degree murder in state court. The trial court's jury instructions included California Jury Instruction Criminal ("CALJIC") 2.15, which allowed the jury to infer guilt of murder from evidence that defendants were in possession of recently stolen property plus slight corroborating evidence.

On July 16, 2003, on Sherrors's and Hall's consolidated direct appeal, the California Court of Appeal determined that the trial court erred when it instructed the jury on CALJIC 2.15. People v. Hall , No. D038857, 2003 WL 21661225, at *6 (Cal. Ct. App. July 16, 2003) (unpublished). In so concluding, the Court of Appeal relied on People v. Prieto , which held that "proof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a rape or murder." 30 Cal. 4th 226, 229, 133 Cal.Rptr.2d 18, 66 P.3d 1123 (2003) (quoting People v. Barker , 91 Cal. App. 4th 1166, 1176, 111 Cal.Rptr.2d 403 (2001) ). The California Court of Appeal, however, affirmed the convictions of Sherrors and Hall applying the People v. Watson , 46 Cal. 2d 818, 836, 299 P.2d 243 (1956), harmless error standard.

After exhausting state court remedies, Hall filed his own habeas petition in federal court raising a CALJIC 2.15 instructional error claim. Later Hall quit pursuing this habeas petition because he believed that he "co-submitted" another federal habeas petition with Sherrors. Sherrors, who filed the petition, was granted habeas relief. Hall, who had relied on Sherrors to advance their instructional error claim on Hall's behalf, found himself out in the cold. But the U.S. district court judge William Q. Hayes in San Diego recognized these extraordinary circumstances. The district court granted Hall's motion to reopen his original habeas proceedings under Federal Rule of Civil Procedure 60(b)(6) and granted Hall's habeas petition consistent with our court's earlier grant of habeas relief to Sherrors. For the reasons set forth below, we affirm.

BACKGROUND

Here's the story about how the case came about. In September 1999, after experiencing financial problems and developing a drug habit, Stephen Foth moved back to his home town of San Diego to "get his life back in order." Foth's close friend, Grace Ko, permitted him to stay with her. On the afternoon of September 29, 1999, Foth told Ko he was going to see another friend to borrow some money and would return later. Foth borrowed Ko's black Audi A4, her cell phone, and her Visa card so that he could put some gas in the car. The next day, Foth's body was found in a pumpkin patch. He had bled to death after being stabbed approximately 83 times.

Nine days after the body was found, Lena Hixon told a friend that she witnessed "something ... pretty bad" and that two men had threatened her life. The friend notified the police after Hixon refused to do so. At first, Hixon told the police that she committed Foth's murder with two men named Benjamin Wilson and Terrence Smallgreen. A few days later, Hixon changed her story and told the police that Ronnie Sherrors and Willard Hall were involved in the murder. Sherrors and Hall were charged with the murder of Stephen Foth.¹ Hixon entered into a plea agreement in which she agreed to plead guilty to assault with a deadly weapon and conspiracy to sell cocaine, and to testify against Sherrors and Hall.

Although inconsistent at times, Hixon's testimony was the key to the prosecution's case. Here is Lena Hixon's story:

On September 29, 1999, Foth approached Hixon and asked if she knew where he could buy some rock cocaine. She did and the two drove in Ko's Audi to an apartment where Sherrors and Hall were living. Hixon, Sherrors, and Hall handled drug sales for Hixon's boyfriend, Michael Washington. Sherrors, Hall, and Foth drove off together in the Audi, leaving her behind. After 15 to 20 minutes, Sherrors and Hall returned in the Audi without Foth. Hixon believed that Foth had loaned the Audi to Sherrors and Hall in exchange for drugs. She got in the Audi with Sherrors and Hall to drive around and smoke some marijuana.

After driving around in the Audi with Sherrors and Hall, Sherrors drove off the highway and parked the Audi in a dirt lot. Sherrors and Hall then opened the trunk, from which Foth climbed out. Hixon testified that she demanded to know what was going on, but Sherrors threatened her and grabbed her hands, breaking two of her acrylic fingernails.

Then, Sherrors began to stab Foth, while Foth was tussling with Hall. Sherrors forced Hixon to stab Foth. Sherrors and Hall stripped Foth and threw his body into the bushes. They put Foth's clothes in the trunk and drove away in the Audi. Hixon, Sherrors, and Hall stopped at a gas station convenience store where Hall was thwarted trying to use Foth's ATM card.

Katherine Davis, Hixon's fellow inmate at Los Colinas Women's Detention Center, also testified at trial. Hixon had spoken to Davis on several occasions about the incidents on September 29. In these conversations, Hixon again pointed the finger at Sherrors and Hall, but her story to Davis differed from the story she told to the police. Hixon's story to Davis implied that Hixon was much more involved in the crime than the story she told to the police.

The State's case against Hall relied overwhelmingly on Hixon's story. In addition to Hixon's version of events, the State's evidence against Hall included (1) testimony that Hall was seen sitting in the passenger side of the Audi days after the crime; (2) testimony that Sherrors and Hall had seen a newscast mentioning the Audi, and the next morning the Audi was found burned; and (3) Foth's high school class ring found in a pair of Hall's pants. None of the evidence found at the crime scene—a shirt, a pair of size eight sneakers, a wristwatch, a broken fingernail, a pair of bloodstained socks, and a shoe print in the soil—was linked to Hall.

Crucial to the federal habeas appeal before us now, at the close of trial, the state jury was instructed on CALJIC 2.15, which states:

If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to prove an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove a defendant's guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt.

As corroboration, you may consider the attributes of possession, time, place and manner; that the defendant had an opportunity to commit the crime charged; the defendant's conduct; his false or contradictory statements, if any; and any other statements that may have been made with reference to the property.

On July 7, 2001, the jury convicted Sherrors and Hall of first-degree murder. Sherrors and Hall were both sentenced to life without the possibility of parole, plus one year.

PROCEDURAL HISTORY

On July 16, 2003, on consolidated direct appeal, the California Court of Appeal found that it was error to instruct the jury pursuant to CALJIC 2.15, but affirmed Sherrors and Hall's convictions under the People v. Watson , 46 Cal. 2d 818, 836, 299 P.2d 243 (1956), harmless error standard. People v. Hall , No. D038857, 2003 WL 21661225, at *6 (Cal. Ct. App. July 16, 2003) (unpublished). The California Supreme Court summarily denied their petitions for review.

On January 3, 2005, Hall filed a pro se habeas petition under 28 U.S.C. § 2254 in federal district court. On March 15, 2005, Hall filed his First Amended Petition for Writ of Habeas Corpus. His petition alleged the following claims: (1) the trial court gave an improper modification of jury instruction CALJIC 2.15 ; (2) the trial court gave an improper modification of jury instruction CALJIC 8.81.17 ; and (3) the trial court provided an incomplete verdict form to the jury. The California Attorney General's Office and the Warden F.W. Haws ("the State") moved to dismiss the petition on the ground that Hall had failed to exhaust the second claim in state court.

Because Hall had failed to demonstrate good cause for failing to exhaust the second claim, see Rhines v. Weber , 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the district court informed Hall on January 25, 2006 of his two options: (1) voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claim, or (2) formally abandon his unexhausted claim and proceed with his two exhausted claims. On February 28, 2006, Hall filed a motion for a 30-day extension to file a formal abandonment, which the district court granted. Thereafter, Hall made no further filings. He did not file a formal abandonment or any other motion. As a result of Hall's failure to comply with the district court's order, the district court dismissed his petition without prejudice on May 19, 2006.

Meanwhile, in 2005, Sherrors, Hall's co-defendant, was also advancing a federal habeas petition, propounding the same CALJIC 2.15 argument as Hall. Hall believed that he was a "co-submitter" in these filings...