Bennett v. Mueller

• Decision Date: 09 July 2002
• Docket Number: No. 00-56199.,00-56199.
• Parties: Joseph Murl BENNETT, Petitioner-Appellant, v. Glen MUELLER, Warden; Cal Terhune, Director; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

296 F.3d 752

Joseph Murl BENNETT, Petitioner-Appellant, v. Glen MUELLER, Warden; Cal Terhune, Director; Attorney General of the State of California, Respondents-Appellees.

No. 00-56199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2001.

Petition for Rehearing Granted May 31, 2002.

Resubmitted July 9, 2002.^*

Filed July 9, 2002.

COPYRIGHT MATERIAL OMITTED

Tina Long Perry, Attorney at Law, Whittier, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California; David P. Druliner, Chief Assistant Attorney General; Marc E. Turchin, Acting Senior Assistant Attorney General; Marc J. Nolan, Deputy Attorney General; Gary A. Lieberman, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding. D.C. No. CV-00-00445-CBM.

Before: BRUNETTI, RYMER, and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge.

Joseph Murl Bennett appeals the district court's order adopting the Magistrate Judge's Report and Recommendation denying his Petition for Writ of Habeas Corpus on the state procedural ground of untimeliness. We must decide whether the district court erred in concluding that the California Supreme Court's denial of Bennett's petition "on the merits and for lack of diligence" constituted an independent and adequate state ground so as to render his habeas petition procedurally defaulted. In so doing, we must determine whether the state court's reliance upon In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (Cal.1993), and In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (Cal.1998), for untimeliness is free from entanglement with federal law and based upon a well-established and consistently applied rule. We agree with the district court that reliance upon Clark and Robbins constitutes an independent state ground. We must reverse on the question of adequacy, however, because we cannot conclude on this record that California has regularly and consistently applied the untimeliness bar in habeas cases. We remand this question to the district court to reconsider under the appropriate burden-shifting rule, which we outline below. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm in part, reverse in part, and remand.

I. Background

In 1986, Bennett pled guilty to first-degree burglary in Los Angeles Superior Court Case No. A468635. In the guilty plea form, signed by Bennett and his counsel, Bennett acknowledged: "I understand the court may send me to state prison for a maximum of 6 years." The plea agreement further provided: "If defendant pleads in case # A470545 and # A470930, this case will be 16 months consecutive to any sentence in those cases."

At sentencing, Bennett attempted to withdraw his guilty plea and enter a plea of not guilty. He claimed it was his understanding, although his memory was, admittedly, "very vague," that he was to receive 16 months on this case regardless of whether he pled guilty in the two other cases. The trial court denied Bennett's motion and, finding the aggravating circumstances of his crime (a nighttime residential burglary) substantial, sentenced him to a prison term of six years. The trial court clarified that the other two cases remained pending; therefore, an open plea remained if he wished to plead guilty to the other cases.

Refusing to plead guilty to the remaining cases, Bennett requested a jury trial, thus terminating his plea agreement. He was convicted by jury in consolidated case Nos. A470545 and A470930 of two counts of first-degree burglary, forcible rape, forcible oral copulation, forcible sexual penetration with a foreign object, sodomy by force, and assault to commit rape. Bennett's combined sentence totaled forty-two years and four months, which was later reduced by one year, making his total term forty-one years and four months.

Bennett did not pursue a direct appeal after his guilty plea and conviction in 1986. Instead, twelve years after his conviction, in 1998, he filed a "Motion for Transcripts" in the California Superior Court, arguing that he was improperly sentenced. The Superior Court denied the motion, finding that his contention "was raised, discussed,... resolved ... [and] without merit." Bennett later filed a Petition for Writ of Habeas Corpus in the Superior Court, which was denied as showing no grounds for relief. He next filed a Petition for Writ of Habeas Corpus in the same case with the California Court of Appeal, which, on May 25, 1999, denied the petition without comment or citation to authority. On July 8, 1999, Bennett filed a Petition for Writ of Habeas Corpus in the California Supreme Court, which, on November, 23, 1999, denied the petition "on the merits and for lack of diligence."

Bennett then filed this Petition for Writ of Habeas Corpus in the United States District Court. Bennett claims that (1) the trial court erred in failing to admonish him regarding the nature and effect of the plea agreement, rendering his guilty plea unknowing and involuntary; (2) the trial court abused its discretion in failing to reasonably consider the motion to withdraw his plea; and (3) his trial counsel was ineffective at the taking of and motion to withdraw the plea, and in failing to appeal. Respondents brought a motion to dismiss for procedural default, which Bennett opposed. The magistrate judge issued a Report and Recommendation, recommending that the district court deny and dismiss the petition with prejudice. On June 5, 2000, the district court adopted the Report and Recommendation and entered judgment denying and dismissing the petition with prejudice. On June 15, 2000, Bennett filed a notice of appeal and request for certificate of appealability in the district court. The district court denied the request. A motions panel of this court then granted a certificate of appealability on the question whether the state court's citation to Clark and Robbins constituted an independent and adequate state bar so as to render the petition procedurally defaulted.

II. Procedural Default

Bennett argues that the district court erroneously concluded that his date of default occurred after the decisions of Clark and Robbins. Bennett asserts that because he was convicted in 1986, before the decisions issued in 1993 (Clark) and 1998 (Robbins), the untimeliness rule created by those decisions cannot apply to him. The cases Bennett cites, however, do not stand for this proposition. Rather, the common theme of these cases is that when the habeas proceeding has been initiated before the Clark/Robbins decisions were announced, the untimeliness rule cannot stand as an independent and adequate state ground barring federal habeas review. See, e.g., Fields v. Calderon, 125 F.3d 757, 759 (9th Cir.1997) (petitioner who filed habeas petition in 1984 cannot be procedurally barred for untimeliness); Calderon v. United States Dist. Court (Hayes), 103 F.3d 72, 73 (9th Cir.1996) (petitioner who filed habeas petition in 1987 cannot be procedurally barred for untimeliness); see also Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1131 (9th Cir.1996) (evaluating procedural default "at the time [petitioner] filed his direct appeal").

This is not a case in which the petitioner filed his state habeas petition before or very shortly after the Clark decision was announced. Cf. Bean, 96 F.3d at 1130 (finding pre-Clark procedural default when petitioner filed his state habeas petition in May 1994 and the California Supreme Court denied on untimeliness grounds). Bennett was convicted on September 17, 1986. He did not appeal his conviction or file a habeas petition in the California Supreme Court until July 8, 1999. Although Bennett delayed more than six years before the Clark decision was rendered, he also delayed approximately another six years after Clark before he filed a state habeas petition with the California Supreme Court. Bennett's substantial, continuing delay after Clark issued is a continuous post-Clark default.

The California Supreme Court has long required that a petitioner in a habeas corpus proceeding justify any substantial delay in seeking relief. In re Stankewitz, 40 Cal.3d 391, 396 n. 1, 220 Cal.Rptr. 382, 708 P.2d 1260 (1985); In re Swain, 34 Cal.2d 300, 302, 209 P.2d 793 (Cal.1949). While we have yet to determine the minimum amount of time that constitutes a substantial delay, we conclude that Bennett's six year post-Clark default certainly suffices.

Bennett next argues that the state court's citation to Clark and Robbins did not constitute an independent and adequate state ground so as to render his habeas petition procedurally defaulted. Although none of the California decisions actually cited to Clark or Robbins, we have previously held that the California Supreme Court's denial of a habeas petition, citing only "lack of diligence," is an application of the untimeliness bar. La Crosse v. Kernan, 244 F.3d 702, 705 (9th Cir.2001) ("[T]he California Supreme Court was applying the untimeliness bar because [petitioner] delayed nearly twelve years between his direct appeal and his state petition for habeas corpus."). Bennett waited twelve years after his conviction before filing his habeas petition. Therefore, in light of the state court's postcard denial, "on the merits and for lack of diligence," the district court was correct to conclude that the California Supreme Court was applying the untimeliness bar, as explained in both Clark and Robbins.

Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); La Crosse, 244 F.3d at 704. Although the California Supreme...