Bonin v. Vasquez, Nos. 92-56299

• Decision Date: 16 July 1993
• Docket Number: Nos. 92-56299,93-99000
• Citation: 999 F.2d 425
• Parties: William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees. William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 425

999 F.2d 425

William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison;

James Rowland, Director of the California

Department of Corrections,

Respondents-Appellees.

William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison;

James Rowland, Director of the California

Department of Corrections, Respondents-Appellees.

Nos. 92-56299, 93-99000.

United States Court of Appeals Ninth Circuit.

July 16, 1993.

Michael H. Roquemore, Deputy State Public Defender, San Francisco, CA, for petitioner-appellant.

Esteban Hernandez, Supervising Deputy Atty. Gen., San Diego, CA, for respondents-appellees.

Before: WALLACE, Chief Judge, BRUNETTI and Alex KOZINSKI, Circuit Judges.

ORDER

In these consolidated cases, Bonin, a California state prisoner facing a sentence of death, appeals from the district court's denial of his two petitions for habeas corpus relief pursuant to 18 U.S.C. § 2254. During the pendency of these appeals Bonin's appointed counsel, the California State Public Defender (Public Defender), filed a request to withdraw as attorney of record which we denied in an unpublished order. The Public Defender subsequently filed a motion for reconsideration, arguing that, because its own ineffectiveness may constitute grounds for relief, conflict of interest concerns mandate the appointment of new counsel. After additional briefing and further review, we adhere to our original denial of the Public Defender's request to withdraw, and we deny the motion for reconsideration.

I

After a jury trial in Los Angeles, Bonin was sentenced on January 20, 1982, to death for the first degree murders of ten victims. On August 22, 1983, he was sentenced to death in Orange County for the first degree murders of four victims. On July 12, 1990, after his direct appeals failed and his requests for state habeas corpus relief were denied, Bonin filed a petition for a writ of habeas corpus in federal district court arising out of his Orange County convictions and sentence (Orange County case), and on February 7, 1991, from his Los Angeles convictions and sentence (Los Angeles case). The two cases, although not consolidated in the district court, were before the same district judge.

On April 19, 1991, following the Supreme Court's decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (McCleskey) (clarifying standards applicable to district court review of claims raised in subsequent habeas corpus petitions), the district court issued an order instructing Bonin to file any additional claims in either or both cases pending before the court by May 13, 1991. On May 17, 1991, Bonin filed a "First Amendment" to his Orange County petition, seeking to add eight new claims; the district court dismissed these additional claims, holding that they constituted an abuse of the writ. The court then denied Bonin's motion for reconsideration of the order dismissing the "First Amendment" in the Orange County case.

No attempt was made to add any claims to the Los Angeles case until December 24, 1991, when Bonin filed a motion proposing to add five new claims. On January 7, 1992, the district court dismissed Bonin's motion to amend the Los Angeles petition because (1) over seven months had passed since the May 13, 1991, deadline with no justification for the delay, and (2) the court held that the five "new" claims were identical to claims Bonin previously had attempted unsuccessfully to add to the Orange County case.

Later in January, the district court conducted a three day evidentiary hearing in both cases. The court issued its Order and Opinion denying Bonin's Orange County petition on July 20, 1992. On August 18, 1992, Bonin filed a "Motion to Amend [Both] Petitions And For Relief From Judgment" setting forth six new claims that had never before been presented either on direct appeal, in state collateral proceedings, or to the district court. The court construed this pleading differently in the two cases: in the Orange County case, because the petition had already been denied, as a Federal Rule of Civil Procedure 60(b) motion for relief from judgment; in the Los Angeles case, because no final judgment had yet been entered, as a Federal Rule of Civil Procedure 15(a) motion to amend the petition.

On September 29, 1992, the district court issued an order stating that it would treat the Rule 60(b) motion in the Orange County case as tantamount to a second petition, the new claims were abusive, and Bonin would have to satisfy McCleskey's "cause and prejudice" test before it would reach the merits of the claims. After Bonin had an opportunity to submit a supplemental brief on whether he could satisfy this test, the district court, on October 6, 1992, denied the Orange County 60(b) motion. On November 9, 1992, the district court denied the Rule 15(a) motion in the Los Angeles case and on the same day issued its Order and Opinion denying Bonin's Los Angeles petition. Bonin has appealed from the district court's orders in both cases.

II

Because final judgment already had been entered in the Orange County case when Bonin first sought to raise six new issues, the district court properly construed Bonin's motion as a request for relief from the judgment pursuant to Rule 60(b). The district court was also correct in treating Bonin's motion in the Los Angeles case as an untimely Rule 15(a) motion to amend the pleadings. The alleged ineffectiveness in the Orange County case relates to the question whether Bonin can establish cause under McCleskey for bringing six abusive claims. In the Los Angeles case, counsel's incompetence is alleged to be relevant to the determination whether the district court abused its discretion in denying the motion to amend. Because the two cases were in significantly different postures when the issue of present counsel's ineffectiveness was first presented, we will address the request to withdraw as it relates to each case separately.

A.

Along with Bonin's supplemental brief on cause and prejudice filed with the district court in the Orange County case, the Public Defender asked to be relieved as counsel of record because of a conflict of interest stemming from the possibility that its own ineffectiveness in representing Bonin during his habeas proceedings might constitute the requisite "cause" for Bonin's failure to raise the six new claims in a timely fashion. The district court rejected the Public Defender's request, relying on Coleman v. Thompson, --- U.S. ----, ---- - ----, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991) (Coleman ), for the proposition that attorney error establishes cause only if it rises to the level of ineffective assistance of counsel at a time when a petitioner is constitutionally entitled to counsel. The Public Defender had alleged the possibility that it may have been ineffective in pursuing either Bonin's state or federal habeas petitions. In denying counsel's request to withdraw in the Orange County case, the district court ruled that because "[t]here is no constitutional right to an attorney in state post-conviction proceedings," id. --- U.S. at ----, 111 S.Ct. at 2566, or in federal habeas corpus proceedings, McCleskey, 499 U.S. at ---- - ----, 111 S.Ct. at 1470-71, citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (Finley ), any alleged ineffectiveness on the part of the Public Defender could not constitute the requisite "independent constitutional violation," Coleman, --- U.S. at ----, 111 S.Ct. at 2567, needed to establish cause. The Public Defender now asks us to reject the district court's facially sound reasoning and grant its request to withdraw.

We were faced with a somewhat similar situation in Harris v. Vasquez, 949 F.2d 1497 (9th Cir.1991) (Harris ), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). Harris had argued that the cause for his failing to raise a mental health claim in his first habeas petition was ineffectiveness on the part of his appointed counsel. Harris's attorneys had filed motions to withdraw to permit an investigation into their possible ineffectiveness in representing Harris during his first habeas corpus petition. We denied the motions based on the same reasoning relied on by the district court in this case: because there is no constitutional right to effective counsel during habeas corpus proceedings, "Harris's habeas counsel could not have been constitutionally ineffective as a matter of law." Id. at 1513 n. 13. The Public Defender contends that Harris is either wrong or not on point. The Public Defender cannot argue Harris was wrongly decided to this three-judge panel as Harris can be overruled only by an en banc court, a Supreme Court decision, or subsequent legislation. United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989). We can, however, decide whether Harris governs this case.

The Public Defender first argues that McCleskey is inapplicable in the Orange County case because Bonin had not filed a second habeas petition, but merely a motion for relief from judgment pursuant to Rule 60(b); thus, according to the Public Defender, the reasoning of Harris has no relevance. We disagree and join the Fourth, Eighth and Eleventh Circuits in holding that because a Rule 60(b) motion following the entry of final judgment in a habeas case raises policy concerns similar to those implicated by a second petition, it is subject to the same cause and prejudice standard. See Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993); Jones v. Murray, 976 F.2d 169, 172 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 27, 120 L.Ed.2d 951 (1992); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12, 1515 (11th Cir.1989); but cf. May v. Collins, 961 F.2d 74, 75-76 (5th Cir.) (addressing merits of 60(b) motion without applying McCleskey...