Bell v. Hill

• Decision Date: 15 July 1999
• Docket Number: No. 98-55323,RESPONDENT-APPELLANT,PETITIONER-APPELLEE,98-55323
• Citation: 190 F.3d 1089
• Parties: (9th Cir. 1999) EDDIE B. BELL,, v. DON R. HILL, WARDEN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1089

190 F.3d 1089 (9th Cir. 1999)

EDDIE B. BELL, PETITIONER-APPELLEE, v. DON R. HILL, WARDEN, RESPONDENT-APPELLANT.

No. 98-55323

U.S. Court of Appeals, Ninth Circuit

Submitted July 15, 1999¹

September 09, 1999

Jerald L. Brainin, Esq., Los Angeles, California, for appellee Bell.

Paul C. Ament, DAG, Los Angeles, California, for the appellant.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding D.C. No. CV-94-04055-SVW Pasadena, California

Before: Melvin Brunetti, Pamela Ann Rymer, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Brunetti; Dissent by Judge Rymer

Brunetti, Circuit Judge

Don Hill ("Hill"), warden of the California State Prison at Tehachapi, appeals from the district court's order granting Eddie Bell ("Bell") a writ of habeas corpus unless the State of California schedules a motion for new trial with appointed counsel or a new trial. We have jurisdiction pursuant to 28 U.S.C. S 1291, review the district court's order de novo, see Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998), and affirm.

I.

On November 6, 1990, Bell was sentenced to thirteen years in prison after a jury found him guilty of second degree robbery. Bell waived his right to counsel and represented himself during his robbery trial, but requested that the court appoint counsel to represent him for his motion for a new trial after the jury returned its guilty verdict. The state trial court, noting that California and other federal circuit courts had rejected our decision in Menefield v. Borg, 881 F.2d 696, 701 (9th Cir. 1989) ("We... hold that... an accused who requests an attorney at the time of a motion for a new trial is entitled to have one appointed"), denied Bell's request for counsel. Bell's conviction and sentence were affirmed on direct appeal and the California Supreme Court denied Bell's petition for review.

On July 19, 1994, Bell filed his First Amended Petition for Writ of Habeas Corpus in the United States District Court for the Central District of California pursuant to 28 U.S.C. S 2254. Bell challenged his 1990 robbery conviction and sentence alleging, inter alia, that he was denied his Sixth Amendment right to counsel when the state trial court refused to appoint counsel for his new trial motion. The district court, after adopting the report and recommendation of the Magis trate Judge, issued an order granting Bell a writ of habeas corpus unless the State of California scheduled either a motion for a new trial with appointed counsel or a new trial. The district court, via the Magistrate's report, reasoned that, under our decision in Menefield, the state trial court's refusal to appoint Bell counsel for his new trial motion violated Bell's Sixth Amendment right to counsel and was prejudicial per se. Hill appeals from the district court's order granting Bell habeas relief arguing that the district court's application of Menefield constitutes the impermissible application of a "new rule" under Teague v. Lane, 489 U.S. 288 (1989).

II.

A state prisoner seeking federal habeas relief cannot benefit from a "new" court-made rule. See Teague v. Lane, 489 U.S. 288 310 (1988). To determine whether a court made rule is "new" under Teague, a federal habeas court must conduct a three step inquiry. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997).

"First, the date on which the defendant's conviction became final is determined. Next, the habeas court considers whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine."

Id. at 156-57 (quotations and citations omitted). The district court's Conclusion that the state court's failure to grant Bell counsel for his new trial motion was prejudicial per se did not constitute the impermissible application of a "new rule" under Teague because our decision in Menefield pre-dates Bell's robbery conviction and, under Menefield, a state court considering a request for counsel for a new trial motion made at the time of Bell's request would have felt compelled to conclude that the Constitution and Supreme Court precedent required the appointment of counsel as requested.

A.

The district court did not err under the first part of the Teague inquiry because we decided Menefield before Bell was arrested let alone convicted for robbery and it has long been established that the denial of a criminal defendant's Sixth Amendment right to counsel is prejudicial per se. See Menefield, 881 F.2d at 701 n.7 (citing Holloway v. Arkansas, 435 U.S. 475 (1978); Chapman v. California, 386 U.S. 18 (1967); Gideon v. Wainwright, 372 U.S. 335 (1963)). In other words, there is no issue under the first part of the Teague inquiry in this habeas proceeding because Bell is not seeking to avail himself of the benefits of a decision or rule decided or announced after his conviction became final. See O'Dell, 521 U.S. at 156; Caspari v. Bohlen, 510 U.S. 383, 389 (1994). This is true despite the fact that Bell bases his Sixth Amendment claim specifically on Ninth Circuit precedent rather than Supreme Court precedent. See Gilmore v. Taylor, 508 U.S. 333, 339-44 (1993); Parke v. Raley, 506 U.S. 20, 25-26 (1992).

In Gilmore, a habeas petitioner sought relief on the ground that a jury instruction given at his trial violated the Due Process Clause of the Fourteenth Amendment. Gilmore, 508 U.S. at 335. The United States Court of Appeals for the Seventh Circuit granted the petitioner habeas relief in light of its decision in Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), a case decided after the petitioner's conviction became final, concluding that Falconer did not announce a new rule under Teague. See Gimore, 508 U.S. at 339. The Supreme Court reversed the Seventh Circuit not because Falconer was a circuit court case but because Falconer was decided after the petitioner's conviction became final and was not "foreordained" by Supreme Court precedent, thereby announcing a new rule under Teague. See id. at 344. The Supreme Court stated that "[s]ubject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final may not provide the basis for federal habeas relief if it announces a `new rule.' " Id. at 399-40 (quoting Graham v. Collins, 506 U.S. 461, 466-67 (1993)) (emphasis added). Gilmore, therefore, instructs that Teague bars the application of circuit court precedent that announces a new rule and postdates a petitioner's conviction but does not prevent the application of circuit court precedent that pre-dates a habeas petitioner's conviction.

In Parke, the United States Court of Appeals for the Sixth Circuit relied on its decision in Dunn v. Simmons, 877 F.2d 1275 (6th Cir. 1989), when it granted relief to a habeas petitioner even though Simmons was decided after the petitioner's conviction became final. See Parke, 506 U.S. at 25-26. The Supreme Court recognized that the case presented a Teague issue because the Sixth Circuit relied on precedent that postdated the petitioner's conviction not because the Sixth Circuit relied on circuit court precedent. See id. at 26.² Parke, therefore, further supports the Conclusion that Teague does not bar the application of circuit court precedents that pre-date a habeas petitioner's conviction. Accordingly, the district court's application of Menefield in this habeas proceeding does not constitute the impermissible application of a new rule under the first part of the Teague inquiry because the district court applied circuit court precedent that pre-dates Bell's robbery conviction.

B.

The district court did not err under the second part of the Teague inquiry when it relied on Menefield because, under our precedent, at the time when Bell's conviction became final a state court would have felt compelled by existing precedent to conclude that the Constitution requires the appointment of counsel for a new trial motion. This is because prior to Bell's conviction we had already conclusively determined that the Constitution and Supreme Court precedent requires the appointment of counsel for a new trial motion, see Menefield, 881 F.2d at 697-99, and we are bound by that determination. See United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992) ("[O]ne three-Judge panel of this court cannot reconsider or overrule the decision of a prior panel.").

In Menefield, we held "that the right to counsel attaches to the motion for a new trial stage." Menefield, 881 F.2d at 699. To reach this holding, we relied exclusively on Supreme Court precedent addressing the Sixth Amendment right to counsel, see id. at 698 (citing Estelle v. Smith, 451 U.S. 454, 471 (1981); Mempa v. Rhay, 389 U.S. 128 (1967); United States v. Wade, 388 U.S. 218 (1967); White v. Maryland, 373 U.S. 59 (1963); Douglas v. California, 372 U.S. 353 (1963); United States v. Ash, 413 U.S. 300 (1973)), and concluded that "[u]nder Ash, although the state trial court expressed doubt as to the significance of the motion, we think there can be little question that the motion for a new trial under California law is a critical stage of the prosecution." Id. at 699. We went on to quote the Supreme Court stating that"[t]he presence of trained counsel at [the motion for a new trial] insures that the most favorable arguments will be presented and `that the accused's interests will be protected consistently with our theory of criminal prosecution.' " Id. at 699 (quoting Wade, 388 U.S. at 227.). Thus, in Menefield, we conclusively determined that the Sixth Amendment and Supreme Court precedent addressing the Sixth...