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

• Citation: 127 F.3d 782
• Decision Date: 18 September 1997
• Docket Number: No. 97-70785,97-70785
• Parties: 97 Cal. Daily Op. Serv. 7449, 97 Daily Journal D.A.R. 12,017 Arthur CALDERON, Warden, Warden of California State Prison at San Quentin, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent, Horace Edwards Kelly, Real Party in Interest.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 782

127 F.3d 782

97 Cal. Daily Op. Serv. 7449, 97 Daily Journal

D.A.R. 12,017

Arthur CALDERON, Warden, Warden of California State Prison

at San Quentin, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF

CALIFORNIA, Respondent,

Horace Edwards Kelly, Real Party in Interest.

No. 97-70785.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 5, 1997.

Decided Sept. 18, 1997.

Keith I. Motley, Deputy Attorney General, San Diego, CA, for petitioner and respondent.

Eugene R. Grace, Grace, Genson, Cosgrove & Schirm, Los Angeles, CA, and Richard C. Neuhoff, San Francisco, CA, for Real Party in Interest.

Petition for a Writ of Mandamus to the United States District Court for the Central District of California. D.C. Nos. CV-92-05420-TJH, CV-93-02951-TJH.

Before: HALL, FERNANDEZ, and TASHIMA, Circuit Judges.

FERNANDEZ, Circuit Judge:

The State of California, through the Warden of the California State Prison at San Quentin, moved to dismiss the proceedings in the United States District Court, which were filed on behalf of Horace Edwards Kelly.

The State claimed that the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations for filing applications for a writ of habeas corpus precluded the continuance of the proceedings. See 28 U.S.C. § 2244(d)(1). The district court declared that the filing deadlines of the AEDPA did not apply to this matter and denied the motion. This petition for a writ of mandamus followed. We agree with the State and order the writ to issue.

BACKGROUND

Way over ten years ago, Kelly murdered three people in three separate incidents. On November 16, 1984, he slew Sonia Reed in San Bernardino County, California, and he followed up that deed by slaying Ursula Houser on November 17, 1984, in the same county. He then shifted his facinorous operations, and on November 22, 1984, he took the life of an eleven-year-old boy, Danny O., in Riverside County, California. He was convicted and sentenced to death for Danny O.'s murder, and on November 26, 1990, the conviction and sentence was upheld by the California Supreme Court. See People v. Kelly, 51 Cal.3d 931, 800 P.2d 516, 275 Cal.Rptr. 160 (1990), cert. denied, 502 U.S. 842, 112 S.Ct. 134, 116 L.Ed.2d 101 (1991) (Kelly I ). He was also convicted and sentenced to death for the murders of Sonia Reed and Ursula Houser, and on January 16, 1992, that conviction and sentence was upheld by the California Supreme Court. See People v. Kelly, 1 Cal.4th 495, 822 P.2d 385, 3 Cal.Rptr.2d 677, cert. denied, 506 U.S. 881, 113 S.Ct. 232, 121 L.Ed.2d 168 (1992) (Kelly II ). He did not seek further relief in the state court system, and that is where his federal court saga begins.

A didactic saga it is. Kelly has never filed an application or petition for habeas corpus relief in the federal courts and has never, therefore, stated any colorable grounds for the issuance of the Great Writ. Rather, he has been permitted to take advantage of a judicially created rule which enables an allegedly prospective federal habeas corpus petitioner to start a "proceeding" for the purpose of obtaining federally appointed counsel before any application or petition for habeas corpus is filed. That proceeding then allows the district court to "enter a stay of execution" on the theory that a petitioner has the right to counsel, and "the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims." McFarland v. Scott, 512 U.S. 849, 858, 114 S.Ct. 2568, 2573, 129 L.Ed.2d 666 (1994); see also Brown v. Vasquez, 952 F.2d 1164, 1168-69 (9th Cir.1992).

It should be observed that, in McFarland, four justices expressed disquiet at the fact that state proceedings could be interfered with and stayed before a defendant was even required to present a colorable claim to the federal courts. See McFarland, 512 U.S. at 860-61, 114 S.Ct. at 2574-75 (O'Connor, J., concurring and dissenting); id. at 873, 114 S.Ct. at 2581 (Thomas, J., joined by Rehnquist, C.J. and Scalia, J., dissenting). That is precisely what has happened here, but this case adds still another dimension to the problem, interminable delay.

On September 8, 1992, the district court granted a stay of Kelly's execution for the murder of Danny O., so that counsel could be appointed for him. Counsel was appointed January 15, 1993. Then, on June 4, 1993, the district court granted a stay of Kelly's execution for the murders of Sonia Reed and Ursula Houser and appointed counsel. Now, more than four years after the grants of those stays, there still has been no filing of a habeas corpus application, and there would be no end in sight unless the AEDPA has brought the proceedings to a close. There have, however, been other orders issued. On January 9, 1995, the district court appointed a psychiatrist to evaluate Kelly's present mental condition. Of course, Kelly's mental condition has been an issue since the beginning of the state proceedings against him. See, e.g., Kelly II, 1 Cal.4th at 514, 541, 543, 822 P.2d at 392, 411, 412, 3 Cal.Rptr.2d at 684-85, 703, 704; Kelly I, 51 Cal.3d at 944, 800 P.2d at 523, 275 Cal.Rptr. at 167. Then on January 5, 1996, the district court appointed a "next friend" to bring a habeas corpus petition on Kelly's behalf. That is another method for assuring that a defendant obtains prompt review of federal constitutional The AEDPA was enacted April 24, 1996, and it, as relevant here, provided that an application for a writ of habeas corpus must be filed within one year of "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). It is clear that we are now far beyond that one-year period, but we have held that, in justice, the one year would not begin to run until the date the AEDPA was enacted. See Calderon v. United States Dist. Court (Beeler), 112 F.3d 386, 389 (9th Cir.1997). That year has passed. Still, no application for habeas corpus has been filed.

questions on habeas corpus. See Whitmore v. Arkansas, 495 U.S. 149, 161-64, 110 S.Ct. 1717, 1726-28, 109 L.Ed.2d 135 (1990). Still, no habeas corpus application or petition was filed.

Faced with the delay, and with no end in sight, the State filed a motion to dismiss both proceedings and to vacate the stays of execution because the one-year statute of limitations had passed. The district court, without revealing its reasoning, declared that the AEDPA's filing deadlines do not apply to this matter. This petition for a writ of mandamus followed.

DISCUSSION

When we are asked to issue a writ of mandamus in a habeas corpus action, we apply the guidelines articulated and discussed in Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977). Those are:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he desires;

(2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal;

(3) whether the district court's order is clearly erroneous as a matter of law;

(4) whether the district court's order is an oft repeated error or manifests persistent disregard for the federal rules; and

(5) whether the district court's order raises new and important problems or issues of law of first impression.

Beeler, 112 F.3d at 388 (citations omitted). Of course, we have recognized that these are guidelines, that they "do not always result in bright-line distinctions," and that a decision "will often require a balancing of conflicting indicators." Bauman, 557 F.2d at 655. Nevertheless, as we have said, "[a]lthough all five factors need not be satisfied, 'it is clear that the third factor, the existence of clear error as a matter of law, is dispositive.' " Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1105 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997) (citation omitted); see also Calderon v. United States Dist. Court (Hayes), 103 F.3d 72, 74 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997).

Here at least most of the guidelines point toward the propriety of issuing the writ. The first because it is plain that if the writ is not issued, the State will be forced to await the outcome of proceedings which should not go forward at all, and which may well extend the four to five years' delay much further. Indeed, they probably will do so, considering the fact that the only excuse for not having filed an application or petition for a writ of habeas corpus is said to be Kelly's mental state, an issue which has been around for over ten years.

The second is satisfied because the very harm the State will suffer is an even longer interference in its proceedings without the benefit of a habeas corpus application to explicate any alleged federal claims.

The fourth guideline does not clearly point in favor of issuing the writ because we are not in a position to say that the error in question is oft repeated. However, that segues into the fifth guideline because the issue of the proper application of the AEDPA is exceedingly important and is one of first impression. It must be answered promptly lest errors and disruptions of state proceedings proliferate. Also, other petitioners may be misled as to their rights. See Beeler, 112 F.3d at 388.

On balance, the third guideline will, indeed, be dispositive. Thus, we turn to the merits of the State's position regarding the AEDPA.

A. Statute of Limitations

The State's position is simple and direct. It points to the statute, which clearly requires that the "application for a writ of habeas corpus" must be filed during the one-year statute of limitations period. 28 U.S.C. § 2244(d)(1)(A). The statute does not say that a request for counsel must be filed during that time; it requires the filing of the...