Anthony v. Cambra

Citation236 F.3d 568
Decision Date15 December 2000
Docket NumberNo. 99-15458,99-15458
Parties(9th Cir. 2000) MICHAEL ANTHONY, Petitioner-Appellant, v. STEVEN CAMBRA, JR., Warden, Respondent-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 568

236 F.3d 568 (9th Cir. 2000)
MICHAEL ANTHONY, Petitioner-Appellant,
STEVEN CAMBRA, JR., Warden, Respondent-Appellee.
No. 99-15458
Argued and Submitted July 11, 2000
Filed December 15, 2000

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Copyrighted Material Omitted

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David W. Fermino, Office of the Federal Public Defender, San Francisco, California, for the appellant.

Sharon G. Birenbaum, Deputy Attorney General, SanFrancisco, California, for the appellee.

Appeal from the United States District Court for the Northern District of California Fern M. Smith, District Judge, Presiding. D.C. No.CV-97-2232-FMS

Before: William C. Canby, Jr., Stephen Reinhardt, Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Fernandez

REINHARDT, Circuit Judge:

Michael Anthony appeals the district court's denial of his motion to amend his habeas corpus petition filed under 28 U.S.C. 2254. He also appeals the district court's denial, on the merits, of his unamended petition. We affirm in part, reverse in part, and remand for further proceedings.

I. Factual and Procedural Background

Ronald Ewing's body was found washed up on a beach in San Mateo County, California, on May 8, 1984. He had been shot four times.

On May 10, 1984, petitioner Michael Anthony and his attorney met with two San Mateo County sheriff's deputies, a San Mateo deputy district attorney, and an assistant United States attorney. Anthony entered into an immunity agreement recorded in a four-page document and in a taped oral statement setting forth additional provisions. The content of this immunity agreement is reproduced, in pertinent part, in Section II.C.2, infra. Anthony denied any participation in Ewing's murder and told the authorities that although he had been with Ewing on the evening of May 7, he had left Ewing in the company of a cocaine dealer (who Anthony believed had killed Ewing) and an unknown woman. The "cocaine dealer" was later identified as Drax Quartermain and the woman as Debra Chandler.

After several years of investigation, the state concluded that Anthony had conspired with his business partner, Ronald McIntosh, and that they had contracted with Quartermain, a hit man, to have Ewing murdered. By information filed in San Mateo County Superior Court, the state charged Anthony with (1) the first degree murder of Ewing, in violation of Cal. Penal Code 187, the information alleging that the murder was carried out for financial gain under Cal. Penal Code 190.2(a)(1); and (2) conspiracy to commit murder, in violation of Cal. Penal Code 182, the information alleging seven overt acts in furtherance of the conspiracy. The information also charged that Anthony had served a prior felony prison term under Cal. Penal Code 667.5(b). At a preliminary hearing, a magistrate judge rejected Anthony's motion to dismiss the case on the basis of the state's alleged violation of the immunity agreement. The superior court agreed with the magistrate that no violation had occurred.

Anthony was tried in the spring of 1990. The prosecution's chief witnesses were Debra Chandler (Drax Quarterman's companion on the night of the murder), and David Younge. Chandler testified that she had been present when the murder was committed, and that Quartermain had offered her $5000 to be his driver that night. Chandler described hearing the shots fired, and testified that Quartermain acknowledged that he had violated his "contract" by failing to remove the victim's head and hands to make identification impossible. A Corvette -identified as belonging to Anthony -had been present as well at the murder scene.

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Younge testified that he had driven Quartermain to various meetings with Anthony and McIntosh during which the murder-for-hire was planned. On one occasion, Anthony and McIntosh brought Ewing to a restaurant so that Quartermain, once again accompanied by Younge, could "eyeball " the intended victim. Younge testified that in the summer of 1984 (after the murder had been committed), Quartermain complained to him repeatedly that Anthony had not paid him in full for the murder and, at Younge's suggestion, Quartermain thereafter retained an attorney who sued Anthony for breach of contract, seeking compensation for "services rendered."

Other witnesses testified that they had seen Anthony and Ewing together on the night of the murder, including a waitress who recalled waiting on Anthony, Ewing, and Quartermain shortly before the murder was committed. Talbot Gregory, an associate of Quartermain's, testified that approximately a year after Ewing's murder, Quartermain had related that he had shot a black man on the beach, and that the money had been "terrific." Further testimony and documentary evidence confirmed that Anthony and Ewing had had a strained business relationship.

On May 3, 1990, the jury found Anthony guilty of both charges. It also found the financial gain special circumstance true, and the trial court found the prior prison term allegation true. On July 1, 1990, the trial court sentenced Anthony to life without the possibility of parole, with a consecutive one-year enhancement for his prior prison term. On June 30, 1992, the California Court of Appeal affirmed the judgment, and on September 24, 1992, the California Supreme Court denied Anthony's petition for review.

On April 21, 1997, Anthony delivered to prison authorities a petition seeking habeas relief from the California Supreme Court. That petition was marked filed by the state court on April 25. Meanwhile, on April 23, 1997 -one year after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA) -Anthony filed a pro se petition for a writ of habeas corpus in federal court. The petition contained six claims, only one of which had been exhausted in state court. See Anthony v. Cambra, 21 F. Supp.2d 1094, 1095 (N.D. Cal. 1998). The district court dismissed the petition without prejudice. On June 13, 1997, Anthony filed another petition containing only his one exhausted claim, together with a motion to stay the petition pending exhaustion of his unexhausted claims. As the district court later explained, "The court construed the petition as an amendment deleting the unexhausted claims and granted [Anthony's] motion to stay the petition to allow him an opportunity to exhaust his other five claims. Upon exhaustion of those claims, [Anthony] could move to further amend the petition to add the newly exhausted claims." Id. On February 18, 1998, the district court denied the state's motion for reconsideration, which argued that Anthony's petition should be dismissed as untimely. See Anthony v. Cambra, 1998 WL 164971 (N.D. Cal. Feb. 18, 1998). Anthony exhausted his five claims in state court and then moved to file an amended petition in federal court that would add his newly-exhausted claims.

On August 5, 1998, the district court denied Anthony's motion to amend. Finding "persuasive" this court's dicta about the "abuse of the writ" doctrine in Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986-88 (9th Cir. 1998), and relying on Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996), the district court found that Anthony had "waited until the last minute to attempt to exhaust his claims before his period of limitations expired on April 23, 1997, " and had failed to show cause why he did not exhaust and raise those claims earlier. Anthony, 21 F. Supp.2d at 1095-96. Anthony had also failed to show that a fundamental miscarriage of justice would result from the district court's refusal to entertain the claims. Id. at 1096. The

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district court concluded that Anthony's newly-exhausted claims were "barred by principles of abuse of the writ." Id.

On January 20, 1999, the district court denied relief on Anthony's one exhausted claim -that is, his contention that the state violated his immunity agreement. On February 16, 1999, Anthony filed a timely notice of appeal. The district court issued a certificate of appeal ability as to Anthony's immunity-agreement claim. A panel of this court subsequently granted Anthony's request for an expanded certification of appeal ability, allowing him to challenge the district court's "abuse of the writ" ruling as well.

II. Analysis

A. Abuse of the writ

After the district court's ruling that Anthony's amended petition constituted an abuse of the writ, but before oral argument in this case was held, the Supreme Court issued its decision in Slack v. McDaniel, 120 S. Ct. 1595 (2000). The state subsequently filed a letter in this court, citing Slack and withdrawing its argument "that amendment of an exhausted petition constitutes a second or successive writ."

The state's concession was properly made. It is clear that the district court's application of the "abuse of the writ" doctrine cannot survive Slack. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts incorporates the Supreme Court's decisions regarding successive petitions and the "abuse of the writ" doctrine. McCleskey v. Zant, 499 U.S. 467, 487 (1991) (cited in Slack, 120 S. Ct. at 1605). Rule 9(b) states:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The district court in this case cited Farmer v. McDaniel, 98 F.3d 1548, 1560 (9th Cir. 1996), for the proposition that "[t]here is no requirement" under Rule 9(b) "that the prior petition have been determined on the merits" for the petition alleging new grounds to be dismissed. Anthony , 21 F. Supp.2d at 1095. In Slack, however, the Supreme Court rejected that proposition and characterized our...

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