Alfaro v. Johnson

• Citation: 862 F.3d 1176
• Decision Date: 14 July 2017
• Docket Number: No. 15-55337,15-55337
• Parties: Maria Del Rosio ALFARO, Petitioner–Appellee, v. Deborah K. JOHNSON, Respondent–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

862 F.3d 1176

Maria Del Rosio ALFARO, Petitioner–Appellee,

v.Deborah K. JOHNSON, Respondent–Appellant.

No. 15-55337

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2017, Seattle, Washington

Filed July 14, 2017

Robin Helene Urbanski (argued), Deputy Attorney General; James William Bilderback II, Supervising Deputy Attorney General; Michael J. Mongan, Deputy Solicitor General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Edward C. DuMont, Solicitor General; United States Attorney's Office, San Diego, California; for Respondent–Appellant.

Michael David Weinstein (argued) and Celeste Bacchi, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California; for Petitioner–Appellee.

Before: JAY S. BYBEE, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Deborah Johnson, Warden of the Central California Women's Facility, appeals the district court's grant of Petitioner–Appellee Maria Alfaro's petition for habeas corpus relief. We hold that Alfaro's claim is barred by her failure to exhaust available state court remedies, and is untimely under Federal Rule of Civil Procedure 15(c). We therefore reverse the district court's grant of Alfaro's petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1992, a jury convicted Alfaro of first degree murder, burglary, and robbery, and also found true the special circumstance that she committed the murder in the course of a first degree burglary and robbery. People v. Alfaro , 41 Cal.4th 1277, 1283, 1288, 63 Cal.Rptr.3d 433, 163 P.3d 118 (2007). After an initial penalty-phase jury failed to reach a verdict, a second penalty-phase jury sentenced Alfaro to death. Id. at 1292, 1294, 63 Cal.Rptr.3d 433, 163 P.3d 118.

On November 4, 1999, Alfaro filed a direct appeal of her conviction and sentence, asserting 15 separate grounds for relief. The California Supreme Court affirmed Alfaro's conviction and sentence on August 6, 2007. See id. at 1282, 63 Cal.Rptr.3d 433, 163 P.3d 118.

Alfaro filed her first state petition for habeas corpus relief on July 31, 2001, approximately two months after the close of briefing in her direct appeal. The California Supreme Court denied Alfaro's petition in a summary order on November 28, 2007. Alfaro then filed a second state habeas petition on March 2, 2009, asserting 32 additional claims. The California Supreme Court again denied Alfaro's petition in a summary order, issued on June 12, 2013.

Alfaro filed her initial federal habeas petition in the U.S. District Court for the Central District of California on August 1, 2008. She subsequently filed her First Amended Petition on March 2, 2009, and her Second Amended Petition on August 12, 2013.

On July 16, 2014, the district court issued an opinion in an unrelated case, granting relief for a habeas petitioner on the ground that "systemic delay" in the administration of California's death penalty renders any ensuing executions arbitrary, and thus in violation of the Eighth Amendment. Jones v. Chappell , 31 F.Supp.3d 1050, 1053 (C.D. Cal. 2014), rev'd sub nom. , Jones v. Davis , 806 F.3d 538, 541 (9th Cir. 2015). Alfaro sought leave to amend her habeas petition to add a claim (Claim 29) based on the court's findings and holding in Jones . The State opposed Alfaro's motion to amend on the grounds that (1) Alfaro failed to exhaust Claim 29 in state court, (2) Claim 29 asserted a "new rule," the application of which is barred on collateral review by the Supreme Court's decision in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and (3) her amendment was untimely under Federal Rule of Civil Procedure 15(c)(1)(B).

On September 12, 2014, the district court granted Alfaro leave to amend her petition. The district court acknowledged that Alfaro had failed to exhaust Claim 29 in state court, but cited its order in Jones stating that "[r]equiring [the petitioner] to return to the California State Court to exhaust [her] claim would only compound the delay that has already plagued [her] post-conviction review process," and held that Alfaro therefore need not exhaust her claim. In regard to Teague , the district court again cited to its order in Jones to hold that Alfaro's claim did not present a "new rule," and therefore was not barred by Teague . Finally, the district court found that Claim 29 related back to Alfaro's timely-filed claims because she "set forth the common core of operative facts in her original federal Petition."

Alfaro filed her Third Amended Petition (TAP) on August 8, 2014. On February 5, 2015, the district court granted Alfaro relief on Claim 29: It held that California's post-conviction system for administering the death penalty violates the Eighth Amendment's prohibition against cruel and unusual punishment, and it therefore vacated Alfaro's capital sentence. Pursuant to Federal Rule of Civil Procedure 54(b), the district court determined that there was no just reason for delay in the entry of final judgment, and entered final judgment as to Claim 29 on February 10, 2015. The State timely filed its appeal of the district court's judgment.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review de novo the district court's exhaustion determination. Wooten v. Kirkland , 540 F.3d 1019, 1023 (9th Cir. 2008). We similarly review de novo the district court's relation-back determination.

Williams v. Boeing Co. , 517 F.3d 1120, 1132 (9th Cir. 2008).¹

ANALYSIS

I. Alfaro Is Not Excused from Her Failure to Exhaust Claim 29

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, requires a plaintiff to "exhaust[ ] the remedies available in the courts of the State" before she may obtain federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is rooted in the principle of comity, and "reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance."O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (alteration in original) (internal quotation marks omitted). Nevertheless, a habeas petitioner may be excused from exhausting a given claim where (1) "there is an absence of available State corrective process," or (2) "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i)—(ii). Neither of these exceptions to AEDPA's exhaustion requirement applies in Alfaro's case.

Under the exception contained in § 2254(b)(1)(B)(ii), which applies when "circumstances exist that render such process ineffective to protect the rights of the applicant," a petitioner may seek redress in federal court "if the [state] corrective process is so clearly deficient as to render futile any effort to obtain relief." Duckworth v. Serrano , 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (emphasis added). In Sweet v. Cupp , 640 F.2d 233 (9th Cir. 1981), we expressly adopted a formulation of the "futility doctrine" that excuses a petitioner's failure to exhaust state remedies "if the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the petitioner, in the absence of intervening United States Supreme Court decisions on point or any other indication that the state court intends to depart from its prior decisions." Id . at 236. We reasoned that under such circumstances, requiring exhaustion would not further the purpose of comity, but rather "would only create an unnecessary impediment to the prompt determination of individuals' rights." Id .

The Supreme Court's decision in Engle v. Isaac , 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) arguably called Sweet 's reasoning into doubt. Engle considered whether a state's procedural bar on appellate consideration of a claim permitted a petitioner to raise that claim on federal habeas review, despite the petitioner's failure to raise it below. Id. at 125, 102 S.Ct. 1558. The Engle Court observed that "[t]he state appellate courts have not had a chance to mend their own fences and avoid federal intrusion," and "reaffirm[ed], therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief." Id . at 129, 102 S.Ct. 1558. A petitioner "may not bypass the state courts simply because [s]he thinks they will be unsympathetic to the claim." Id . at 130, 102 S.Ct. 1558.

The State argues that Engle effectively overruled Sweet 's endorsement of the futility doctrine such that the California Supreme Court's potentially adverse view of Alfaro's claim does not excuse her from exhausting available state court remedies. See Noltie v. Peterson , 9 F.3d 802, 805 (9th Cir. 1993) (describing how Engle called into question the "short-lived ‘futility doctrine’ to avoid procedural default").² We need not, however, rule on the continued viability of the rule from Sweet : Even assuming that a state supreme court's prior rejection of a petitioner's claim excuses that petitioner's failure to exhaust, the circumstances of Alfaro's case do not support application of this exception. Alfaro argues that the California Supreme Court rejected a claim identical to hers in People v. Seumanu , 61 Cal.4th 1293, 192 Cal.Rptr.3d 195, 355 P.3d 384 (2015). There the California Supreme Court considered a defendant's direct appeal asserting the claim, based upon the district court's opinion in Jones , that "systemic delay in resolving postconviction challenges to death penalty judgments has led to a constitutionally intolerable...