Ashmus v. Woodford

• Decision Date: 09 March 2000
• Docket Number: No. 99-99007,99-99007
• Citation: 202 F.3d 1160
• Parties: (9th Cir. 2000) TROY A. ASHMUS, Petitioner-Appellee, v. JEANNE WOODFORD, Acting Warden of California State Prison at San Quentin, Respondent-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1160

202 F.3d 1160 (9th Cir. 2000)

TROY A. ASHMUS, Petitioner-Appellee, v. JEANNE WOODFORD, Acting Warden of California State Prison at San Quentin, Respondent-Appellant.

No. 99-99007

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 2, 1999

Decided January 24, 2000

As Amended on Denial of Rehearing and Rehearing En Banc March 9, 2000^*

COUNSEL: Ronald S. Matthias, Deputy Attorney General, San Francisco, California, for the respondent-appellant.

Michael Laurence, Habeas Corpus Resource Center, San Francisco, California, for the petitioner-appellee.

Mitchell Zimmerman, Fenwick & West LLP, Palo Alto, California, for the amicus. Henry Earl Duncan; Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, California, for amicus Criminal Justice Legal Foundation.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-93-00594-TEH

Before: William C. Canby, Jr., David R. Thompson, and Susan P. Graber, Circuit Judges.

OPINION

CANBY, Circuit Judge:

Troy A. Ashmus, a prisoner sentenced to death by the California state courts, filed a federal petition for habeas corpus on May 15, 1998. During Ashmus' habeas proceeding, the State sought to avail itself of the procedural advantages of Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).¹

Ashmus contested the State's claim, and the district court issued a preliminary injunction enjoining the State from asserting Chapter 154 with respect to his petition. See Ashmus v. Calderon, 31 F. Supp. 2d 1175 (N.D. Cal. 1998) (order) (Ashmus II); see also Ashmus v. Calderon , 935 F. Supp. 1048 (N.D. Cal. 1996) (Ashmus I), aff'd, 123 F.3d 1199 (9th Cir. 1997), rev'd for lack of a case or controversy , 523 U.S. 740 (1998).² The State brings a certified interlocutory appeal challenging the district court's order. We affirm.

I. BACKGROUND

Before addressing the merits of the State's claim, we review the procedural history of Ashmus' direct and collateral review, the statutory provisions of Chapter 154, the "quid pro quo" arrangement reflected in the legislative history to Chapter 154, and the unitary scheme of collateral review adopted by the State of California in 1989.

A. Ashmus' direct and collateral review

In 1986, Troy A. Ashmus was convicted of murder in California state court and sentenced to death. The State appointed appellate counsel for Ashmus on March 4, 1987. The State of California did not adopt its unitary review scheme in any form until 1989; consequently, when Ashmus received counsel, his attorneys did not have the authority to, nor was it contemplated that they would, develop any collateral claims.

On June 6, 1989, the California Supreme Court promulgated policies providing that "[a]ppellate counsel in capital

cases shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus." Supreme Court Policies Regarding Cases Arising from Judgments of Death, Cal. Court Rules, Vol. 23, pt. 3, at 143 (1-1) (West 1996) (1989 Supreme Court Policies). Although Ashmus' state-appointed counsel may have been aware of this change in their obligations, they never received orders to investigate collateral claims.

The California Supreme Court affirmed Ashmus' death sentence on December 5, 1991. Ashmus initiated his federal habeas proceedings on February 17, 1993. See Ashmus II, 31 F. Supp. 2d at 1177.

B. Chapter 154

California's eligibility to invoke Chapter 154 with respect to Ashmus' habeas petition turns on an interpretation of section 2265(a) of title 28.³ That section provides:

This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if the State establishes by rule of its court of last resort or by statute a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in the unitary review proceedings, including expenses relating to the litigation of collateral claims in the proceedings. The rule of court or statute must provide standards of competency for the appointment of such counsel.

28 U.S.C. S 2265(a) (emphases added).⁴

C. The quid pro quo

In return for meeting the statutory requirements of Chapter 154, a state is entitled to the following procedural advantages with respect to a federal habeas petition filed by one of its capital-sentenced prisoners: (1) the petition must be filed within 180 days of the termination of state court proceedings, 28 U.S.C. S 2263(a);⁵ (2) the district court must render a final determination on the petition within 180 days of filing, S 2266(b)(1)(A); and (3) the court of appeals must render a determination on any appeal of the district court's determination within 120 days of the last responsive brief, S 2266(c)(1)(A).

This trade-off of procedural advantages in return for the appointment of competent counsel at the state and federal level creates a "quid pro quo" relationship. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996); see also Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). The Powell Committee, whose proposal Chapter 154 essentially codifies, see Ashmus I, 935 F. Supp. at 1055-56, stated the quid pro quo in these terms:

[T]he Committee believes that provision of competent counsel for prisoners under capital sentence throughout both state and federal collateral review is crucial to ensuring fairness and protecting the constitutional rights of capital litigants.

135 Cong. Rec. S13471-04, S13481, S13482 (Judicial Conference of the United States Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report (1989)) (Powell Committee Report).

D. California's Unitary Review Scheme

The State of California adopted a unitary scheme of collateral review effective June 6, 1989. The scheme, which the State previously referred to as a " `comprehensive scheme of interlocking, cross-implementive provisions,' " quoting Ashmus I, 935 F. Supp. at 1056, is comprised of the following provisions:

(1) California Government Code S 68511.5 (effective Jan. 1, 1984);

(2) California Rule of Court 76.5 (effective Jan. 1, 1985);

(3) Section 20 of the Standards of Judicial Administration Recommended by the Judicial Council (effective Jan. 1, 1985);

(4) Introductory Statement, California Court Rules (effective Jan. 1, 1992)

(5) California Penal Code S 1241 (enacted 1955);

(6) California Government Code S 68070 (effective as amended Oct. 3, 1977);

(7) California Supreme Court Statement of Policies Regarding Cases Arising from Judgment of Death (adopted and effective June 6, 1989);

(8) California Supreme Court Internal Operating Practices and Procedures, Sections XIII.A and XIV.A (adopted Summer 1985, revised

December 1989 and in 1995);

(9) California Supreme Court Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants (revised Sept. 19, 1990, and Dec. 22, 1993); and

(10) California Supreme Court Guidelines for Fixed Fee Appointment, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings (effective Jan. 1, 1994).

In 1997, long after the completion of all of Ashmus' state proceedings, California revised the structure of its unitary review scheme. The state legislature adopted Chapter 2.1 (now Chapter 2.3) of title 8 of the California Government Code, see Cal. Gov't Code SS 68660-68666 (West Supp. 1999) (effective Jan. 1, 1998), to create the California Habeas Resource Center. Section 68662 required the California Supreme Court to "offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state postconviction proceedings." S 68662. Section 68665 required the California Judicial Council and the California Supreme Court to "adopt, by rule of court, binding and mandatory competency standards for the appointment of counsel in death penalty direct appeals and habeas corpus proceedings." S 68665. Accordingly, the Judicial Council and the California Supreme Court adopted California Rule of Court 76.6 (effective February 27, 1998) to implement the new statutory provisions. See Cal. R. Ct. 76.6 (West Supp. 1999).

II. DISCUSSION

This court has jurisdiction over this interlocutory appeal under 28 U.S.C. S 1292(b). We review the district court's conclusions of law de novo, see Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1318-19 (9th Cir. 1997), and its factual findings under the "clearly erroneous" standard, see Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994).⁶

California can invoke the advantages of Chapter 154 with respect to Ashmus' habeas petition only if it affirmatively establishes that it has satisfied each condition in the federal statute. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996).

Chapter 154 applies to pending habeas petitions. See AEDPA, S 107(c), 110 Stat 1214, 1226. California can opt-in to Chapter 154's expedited procedures, however, only if its mechanism for the appointment, compensation and payment of reasonable litigation expenses of collateral counsel is "established." See S 2265(a) ("establishes"). The question then becomes the relevant date: when must California have `established' its mechanism for the appointment of counsel in order to opt-in to Chapter 154 for the purpose of applying those expedited procedures to Ashmus' federal habeas petition?

The State contends that the relevant date is June 6, 1989, the effective date of the 1989 Supreme Court Policies and thus the date when Ashmus became entitled to the appointment of collateral counsel under California's unitary review scheme. Ashmus contends that the relevant date is March 4, 1987, the date on which direct appeal counsel was appointed for him and thus the date on which he would have been entitled to the appointment of collateral counsel had...