Calderon v. U.S. Dist. Court for Cent. Dist. of California

• Decision Date: 08 December 1998
• Docket Number: No. 98-70569,98-70569
• Citation: 163 F.3d 530
• Parties: 98 Cal. Daily Op. Serv. 8959, 98 Daily Journal D.A.R. 12,479 Arthur CALDERON, Warden of California State Prison at San Quentin, Petitioner, v. The UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent, Horace Edwards Kelly, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 530

163 F.3d 530

98 Cal. Daily Op. Serv. 8959, 98 Daily Journal

D.A.R. 12,479

Arthur CALDERON, Warden of California State Prison at San Quentin, Petitioner, v. The UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent Horace Edwards Kelly, Real Party in Interest.

No. 98-70569.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 23, 1998.

Decided Dec. 8, 1998.

Daniel E. Lungren, Attorney General of California, Keith I. Motley, Supervising Deputy Attorney General, San Diego, California, for the petitioner.

Maria E. Stratton, Federal Public Defender, David W. Fermino, Assistant Federal Public Defender, Los Angeles, California, for the real party in interest.

No appearance for the respondent.

Petition for a Writ of Mandamus to the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding; D.C. Nos. CV-98-02722-TJH, CV-98-02723-TJH.

Before: HUG, Chief Judge, and BROWNING, FLETCHER, PREGERSON, REINHARDT, HALL, KOZINSKI, THOMPSON, TROTT, TASHIMA, and SILVERMAN, Circuit Judges.

Opinion by Judge TASHIMA; Concurrence by Judge THOMPSON; Concurrence by Judge SILVERMAN; Dissent by Judge HALL.

TASHIMA, Circuit Judge:

This case comes to us in an unusual procedural posture, complicated by an atypical history. Real party in interest Horace Edwards Kelly (Kelly) was sentenced to death in two separate cases by the California state courts. See People v. Kelly, 51 Cal.3d 931, 275 Cal.Rptr. 160, 800 P.2d 516 (1990), cert. denied, 502 U.S. 842, 112 S.Ct. 134, 116 L.Ed.2d 101 (1991) (Kelly I ); People v. Kelly, 1 Cal.4th 495, 3 Cal.Rptr.2d 677, 822 P.2d 385, cert. denied, 506 U.S. 881, 113 S.Ct. 232, 121 L.Ed.2d 168 (1992) (Kelly II ). For most of the past several years, Kelly's attorneys have been attempting to determine Kelly's competency to assist them in preparing his first federal habeas corpus petitions. In Calderon v. United States Dist. Court, 127 F.3d 782 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1395, 140 L.Ed.2d 653 (1998) (Kelly III ), a three-judge panel granted the petitioner Warden's (State) first petition for a writ of mandamus and preemptively held that Kelly's first habeas petitions--insofar as they might challenge his convictions and death sentences--could never be filed because of the time bar of 28 U.S.C. § 2244(d)(1). Kelly, nonetheless, later did file his first petitions. When the district court equitably tolled the time bar of § 2244(d)(1) so that it could reach the merits of Kelly's claims, ¹ the same three-judge panel granted in part the State's second petition for writ of mandamus. Calderon v. United States Dist. Court, 1998 WL 309923 (9th Cir. 1998) (Kelly IV ). We granted en banc review. ²

The history of this case, combined with its procedural posture, require us to address several issues of concern in habeas corpus law. First, we must clarify whether a writ of mandamus can properly be issued to prevent the consideration of a first habeas petition. Second, we address the holding in Kelly IV, that res judicata applies in the habeas context. Third, we discuss what kinds of legal proceedings qualify as a "case" for purposes of the Supreme Court's holding that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 1996 U.S.C.C.A.N. (110 Stat.) 1214, does not apply to "cases pending" at the time of the statute's enactment. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997). Finally, we address whether Kelly's habeas proceedings, or petitions, were timely commenced.

I. History of the Case

The opinions in Kelly I, Kelly II, Kelly III and Kelly IV fully explain the history of this case, and we summarize it here only briefly. Kelly was convicted and sentenced to death in Riverside County, California, for the murder of Danny O. Kelly I, 51 Cal.3d at 940, 275 Cal.Rptr. 160, 800 P.2d 516. He was also convicted and sentenced to death in San Bernardino County, California, for the murders of Sonia Reed and Ursula Houser. Kelly II, 1 Cal.4th at 511, 3 Cal.Rptr.2d 677, 822 P.2d 385. Each of these death sentences has been treated independently by the State, which is why we refer throughout this opinion to Kelly's first habeas petitions, in the plural.

Following the state court affirmances of his convictions and death sentences, Kelly turned to federal court. In 1992 and 1993, acting on an application for the appointment of counsel to initiate habeas proceedings and for a stay of execution filed by Kelly, the district court stayed Kelly's scheduled executions and appointed counsel to represent him. ³ No habeas petitions were filed at that time. On April 24, 1996, Congress enacted the AEDPA, which imposes a one-year statute of limitations on the filing of a habeas corpus petition that challenges a state conviction. 28 U.S.C. § 2244(d)(1). The Supreme Court has held, however, that the AEDPA does not apply to cases that were pending on the AEDPA's effective date, i.e., any case pending on April 24, 1996. See Lindh, 117 S.Ct. at 2061; see also Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997).

From 1992 to 1997, Kelly's proceedings remained in the district court. During this period, Kelly did not file a petition for habeas corpus. On September 18, 1997, a three-judge panel of this court granted the State's first petition for a writ of mandamus and ordered the dismissal of Kelly's proceedings. See Kelly III, 127 F.3d at 787. The panel majority reasoned that there was no point to the proceedings because any habeas petition that Kelly might eventually file would be time-barred under the AEDPA. The panel majority first noted that under Lindh, the AEDPA does not apply to cases pending on April 24, 1996, but, applying existing circuit precedent, the panel majority concluded that a habeas case is "pending" only when an actual petition for habeas corpus has been filed--and Kelly had not yet filed his petitions. He had merely requested the appointment of counsel to prepare and file his petitions. Second, the panel majority rejected Kelly's argument in favor of equitable tolling of § 2244(d)(1)'s one-year statute of limitations. Third, the panel majority acknowledged that the one-year limitations period would not bar Kelly's claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that he is currently incompetent to be executed, but it found that claim to be premature for federal review. Kelly III, 127 F.3d at 787. Thus, the writ of mandamus was granted. The district court, as it was ordered to do, then vacated the stay and dismissed the proceedings.

The state courts then set new execution dates for Kelly and the State petitioned the state trial court to determine Kelly's present competence to be executed. A divided jury found that Kelly was sane. Kelly then filed two federal habeas petitions which are the subject of this mandamus petition. These petitions raised the Ford claim and also raised numerous challenges to Kelly's Riverside and San Bernardino convictions and death sentences. The district court held that the one-year limitations period of the AEDPA was tolled; consequently, that none of Kelly's claims was time-barred. This order prompted the State to file a second petition for a writ of mandamus. The same three-judge panel that heard Kelly III again granted the writ. See Kelly IV, 1998 WL 309923. In the panel majority's view, Kelly III had resolved the question of the applicability of the AEDPA's statute of limitations and was res judicata to any later reconsideration of that issue. Id. 1998 WL 309923. Accordingly, Kelly IV ordered the dismissal of all claims, except Kelly's Ford claim, and ordered the stay of execution to be vacated to the extent that it was based on Kelly's non-Ford claims. Id. 1998 WL 309923.

We then granted en banc review of Kelly IV.

II. The Writ of Mandamus

The role of the court of appeals in this case is strongly constrained by the fact that we are considering a petition for a writ of mandamus and not reviewing a final judgment. Normally, in an appeal, we receive a case after the district court has resolved every claim presented, after the parties have had the opportunity to raise every argument they choose, and after the facts have been fully developed. A petition for mandamus, however, is an original proceeding and, thus, is different from the normal appellate process in all of those respects. These differences become especially significant in death penalty cases. We do not know whether Kelly's habeas petitions have merit; we lack the benefit of the historical hindsight that we usually possess when we review a case after the facts have been developed; and the briefing before us has necessarily been limited to those issues raised by the State in its petition for mandamus.

Because of the difficult position in which a mandamus petition places the court of appeals, we have repeatedly characterized mandamus as an "extraordinary" or "drastic" remedy. E.g., Calderon v. United States Dist. Court (Gordon), 107 F.3d 756, 761 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 265, 139 L.Ed.2d 191 (1997); Armster v. United States Dist. Court, 792 F.2d 1423, 1431 (9th Cir.1986). The Supreme Court has admonished that mandamus must not become a substitute for the normal appellate process. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). To provide guidance for when mandamus may be permissible, we have adopted a five-part test. In Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977), we delineated the five factors that support the issuance of a writ of mandamus:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the...