Buffalo v. Sunn

• Decision Date: 16 August 1988
• Docket Number: No. 87-2032,87-2032
• Parties: Joseph BUFFALO, Petitioner-Appellee, v. Franklin SUNN, Director D.S.S.H., Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1158

854 F.2d 1158

11 Fed.R.Serv.3d 1305

Joseph BUFFALO, Petitioner-Appellee, v. Franklin SUNN, Director D.S.S.H., Respondent-Appellant.

No. 87-2032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1988.

Decided Aug. 16, 1988.

Charlene Y. Iboshi, Deputy Pros. Atty., Hilo, Hawaii, for respondent-appellant.

Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for petitioner-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, REINHARDT and NOONAN, Circuit Judges.

WALLACE, Circuit Judge:

Buffalo was convicted of first-degree robbery and first-degree assault in Hawaii state court. Following an unsuccessful direct appeal and state collateral attack, he filed a petition for a writ of habeas corpus with the United States District Court for the District of Hawaii. The district court conditionally granted the writ. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253. Because we conclude that the district court should have held an evidentiary hearing in order to resolve a factual dispute over whether Buffalo had demonstrated "cause" under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Sykes ), for failing to appeal his collateral attack to the Hawaii Supreme Court, we reverse and remand for an evidentiary hearing.

I

On September 25, 1981, a jury convicted Buffalo of first-degree robbery and first-degree assault. Buffalo appealed his conviction to the Hawaii Intermediate Court of Appeals and alleged that his counsel rendered constitutionally ineffective assistance, that the admission of certain hearsay testimony deprived him of his due process right to a fair trial, and that certain hearsay statements were inadmissible under Hawaii's rules of evidence. The court of appeals rejected both his ineffective assistance of counsel and his due process claims and declined to address the merits of the evidentiary issues because of a failure to comply with Rule 3(b)(5) of the Hawaii Supreme Court, which requires a concise statement of the evidentiary points raised on appeal. Buffalo then filed a pro se letter with the Hawaii Supreme Court requesting, in effect, a writ of certiorari. The Hawaii Supreme Court denied the writ as untimely.

On April 11, 1984, Buffalo filed a petition for post-conviction relief pursuant to Rule 40 of the Hawaii Rules of Penal Procedure ¹ alleging that he received ineffective assistance of counsel. The Public Defender was designated as court-appointed counsel. On July 31, 1984, Buffalo moved for the appointment of new counsel, alleging, in part, that the Public Defender had a conflict of interest because Buffalo's Rule 40 petition alleged that a member of the Public Defender's office had rendered ineffective assistance of counsel. On September 17, 1984, the Hawaii trial court denied the motion for new counsel and found the underlying petition "patently frivolous and without trace of support."

The Hawaii Intermediate Court of Appeals affirmed the denial of appointment of counsel on June 24, 1985. On July 15, the same court affirmed the trial court's rejection of Buffalo's Rule 40 petition on the merits. Buffalo did not appeal this final order of the court of appeals, allegedly because a prison lockdown made it impossible for him to prepare and file a writ of certiorari within the ten-day time limit prescribed by the Hawaii Supreme Court.

On August 15, 1985, Buffalo filed a petition for a writ of habeas corpus with the United States District Court for the District of Hawaii pursuant to 28 U.S.C. Sec. 2254. In response, on April 10, 1986, the Hawaii prison authorities (State) filed a motion to dismiss Buffalo's writ of habeas corpus for failure to exhaust state remedies on both direct appeal and on collateral attack. On June 19, 1986, the district court denied the State's motion to dismiss. The district court agreed with the State (1) that Buffalo had to establish cause for his procedural defaults on both direct and collateral review under Sykes, 433 U.S. 72, and (2) that he failed to establish cause for the procedural default on direct review. The district court, however, rejected the State's argument that Buffalo failed to establish cause for failing to appeal the Hawaii Intermediate Court of Appeals denial of his collateral attack. Instead, the district court determined that a prison lockdown prevented Buffalo from filing a writ of certiorari from the denial of his collateral attack by the court of appeals, concluding that this official impediment provided the requisite "cause" for Buffalo's procedural default, and that Buffalo also established prejudice under Sykes.

The State then filed a motion for reconsideration attacking the district court's finding that a lockdown prevented Buffalo from filing a writ of certiorari to the Hawaii Supreme Court during his collateral attack. The district court denied this motion for reconsideration. On March 31, 1987, the district court conditionally granted Buffalo's petition for habeas corpus, reasoning that, because Buffalo's trial counsel failed to object to allegedly prejudicial hearsay testimony, Buffalo received constitutionally ineffective assistance of counsel under the standards announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State timely filed a notice of appeal.

II

We first discuss Buffalo's challenge to our jurisdiction. He advances two reasons why the State's notice of appeal was ineffective. We, of course, review our jurisdiction de novo. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).

First, Buffalo argues that the State's notice of appeal did not evince a "clear intent" to appeal. The notice of appeal states: "Franklin Sunn ... hereby appeals to the United States Court of Appeals for the Ninth Circuit from the Order ... entered ... on [March 31, 1987], unless the ... District Court ... reconsiders its Order...." Buffalo stresses that the clause beginning "unless ..." demonstrates that the State conditioned its intention to appeal on the disposition of a motion to reconsider. He cites McMillan v. Barksdale, 823 F.2d 981 (6th Cir.1987) (McMillan ), and Mosley v. Cozby, 813 F.2d 659 (5th Cir.1987) (Mosley ), for the proposition that a conditional intent to appeal does not provide us with jurisdiction.

It is true that a particular notice of appeal could lack a sufficiently clear intent to appeal such that we would lack jurisdiction. Cf. Cel-A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 667 (9th Cir.) (per curiam) (discussing Fed.R.App.P. 3(c)), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). The notice of appeal before us, however, sufficiently demonstrated the State's intent to appeal and complied with the requirements of Fed.R.App.P. 3(c). Rule 3(c) requires a notice of appeal to specify (1) the party taking the appeal, (2) the order from which the appeal is taken, and (3) the court to which the appeal is taken. See Fed.R.App.P. 3(c).

Mosley and McMillan do not require a different result. In Mosley, Mosley filed a "Motion to Reconsider Order or in the Alternative, Motion for Leave to Take an Interlocutory Appeal In Forma Pauperis." 813 F.2d at 660. The Fifth Circuit concluded that it lacked jurisdiction because the "primary relief" that Mosley sought in his motion was reconsideration, and he sought leave to appeal only if the district court denied reconsideration. Id. This motion, therefore, did not show a sufficiently clear intent to appeal. Id. In contrast to Mosley, the "primary relief" the State sought was to appeal. Whereas an appeal was sought in Mosley only in the event that reconsideration by the district court was denied, an appeal was intended in this case unless reconsideration was granted. In other words, the appellant in Mosley desired an appeal only as a default remedy, while the State in this case affirmatively pursued this appeal as its first choice of remedy. Because we conclude that Mosley is distinguishable, we do not decide whether we would adopt that decision were we confronted with a similar case.

McMillan actually supports the conclusion that we have jurisdiction. The Sixth Circuit there stated: "Any document that meets the requirements of Rule 3(c) and is filed within the time prescribed by Rule 4(a) can function as a notice of appeal.... To reach a contrary holding would ... exalt form over substance." 823 F.2d at 983. This statement squarely applies to the State's notice of appeal.

As a second ground for attacking this court's jurisdiction, Buffalo argues that we should treat the State's notice of appeal as a motion to reconsider and dismiss the appeal pending the district court's decision on whether to reconsider. Buffalo cites cases that recognize that filing a motion to reconsider under Fed.R.Civ.P. 59(e) tolls the time for filing an appeal and nullifies an appeal filed before a decision on the motion to reconsider. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (Griggs ); United States v. Gargano, 826 F.2d 610, 611 (7th Cir.1987) (Gargano ).

Griggs and Gargano, however, are not on point. In both cases, appellants had filed motions for reconsideration which were separate from their notice of appeal and which were still pending after the appeal was noticed. See Griggs, 459 U.S. at 57, 103 S.Ct. at 401; Gargano, 826 F.2d at 611. Here, by contrast, the State did not ever file a motion to reconsider, either prior or subsequent to bringing this appeal.

Nor, as with the motion at issue in Mosley, can the State's notice of appeal be treated as effectively a motion to reconsider. Mosley does not help Buffalo because, as pointed out earlier, the court concluded that Mosley was primarily seeking to have the district court reconsider its decision. 813 F.2d at 660. Unlike the motion...