Cassett v. Stewart
| Decision Date | 03 May 2005 |
| Docket Number | No. 03-16573.,03-16573. |
| Citation | 406 F.3d 614 |
| Parties | Gary Paul CASSETT, Petitioner-Appellant, v. Terry L. STEWART, Director, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jeffrey D. Bartolino, Tucson, AZ, for the petitioner-appellant.
Terry Goddard, Attorney General, Phoenix, AZ; Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, AZ; Monica B. Klapper, Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for the respondent-appellee.
Appeal from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding. D.C. No. CV-97-00548-WDB.
Before TASHIMA, THOMAS, and PAEZ, Circuit Judges.
Petitioner Gary Paul Cassett ("Cassett") appeals from the district court's dismissal with prejudice of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In a previous appeal, we "remand[ed] to the district court with directions to dismiss the petition because Cassett failed to exhaust his federal due process claim in the Arizona state courts." Cassett v. Stewart (Cassett I), 49 Fed.Appx. 154, 154 (9th Cir.2002) (unpublished disposition). On remand, the district court dismissed Cassett's habeas petition with prejudice because it concluded that "the Court of Appeals failed to note that Petitioner's claims have been procedurally defaulted in the state courts and are technically exhausted." Further, the district court held in the alternative that even if Cassett's claim is not exhausted, dismissal with prejudice is appropriate under 28 U.S.C. § 2254(b)(2) because the district court "has determined that the claim is without merit." Accordingly, the district court denied Cassett's petition both as procedurally defaulted and on the merits.
In this appeal, Cassett argues that the district court exceeded the scope of our mandate by reaching the issue of procedural default and dismissing his habeas petition with prejudice. Cassett also argues that even if the district court did not violate our mandate, his claim is not procedurally defaulted because he never "knowingly, voluntarily, and intelligently" waived his right to raise it. Further, Cassett asserts that even if his claim is procedurally defaulted, he has demonstrated cause and prejudice excusing the default. Additionally, Cassett argues that the district court erred by alternatively denying his petition on the merits under 28 U.S.C. § 2254(b)(2) because it was not "perfectly clear" that he failed to raise a colorable federal claim. Finally, Cassett contends that the district court should stay the proceedings and hold his exhausted petition in abeyance while he attempts to exhaust his unexhausted federal due process claim in state court. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291, 2253, and we reverse and remand.
We hold that the district court did not exceed the scope of our mandate in ruling on procedural default, that Cassett's federal due process claim is not procedurally defaulted because it is not clear that the Arizona state courts would find this claim procedurally barred, and that the district court erred in dismissing Cassett's due process claim under 28 U.S.C. § 2254(b)(2) because it is not perfectly clear that this claim is not colorable. Finally, on remand, we direct the district court to consider Cassett's request that the court stay his habeas petition and hold his exhausted claims in abeyance while allowing Cassett to exhaust his federal due process claim in the state courts.
Cassett was charged with two counts of child molestation and four counts of sexual conduct with a person under the age of 14, stemming from events that occurred in November and December of 1990 with his stepson. Although Cassett agreed to plead guilty to kidnaping, a class two felony, at the change of plea hearing the trial judge found an insufficient factual basis for the plea, and the plea was never entered. Cassett's attorney hired John Sloss ("Sloss"), a criminal justice consultant, to prepare an alternative pre-sentence report, which revealed that Cassett had admitted to child molestation. Although the report was prepared to rebut the State's pre-sentence report, Cassett believed that what he said to Sloss was confidential. Sloss, too, thought the report was protected by the attorney-client privilege.
Cassett pled guilty to attempted molestation and attempted sexual conduct with a minor because he believed this plea would allow the court to impose a probationary sentence. Prior to his sentencing hearing, Cassett's attorney disclosed the existence of Sloss's alternative pre-sentence report to the prosecutor because he planned to use it if necessary for rebuttal. However, the report was never presented to the court. Cassett was sentenced to two consecutive twelve-year terms.
Cassett's sentence was vacated after he alleged in a petition for post-conviction relief under Ariz. R.Crim. P. 32.1 that he was not informed that his sentences would run consecutively. The case then proceeded to trial. During a pre-trial hearing, the State disclosed that it planned to call Sloss as a witness. Cassett's attorney filed a motion in limine to exclude Sloss's testimony, which the court denied.
Three trials were held in this case. The first ended in a mistrial after the jury learned of the plea and the prior sentencing. The second ended in a mistrial because the jury deadlocked. Sloss did not testify at either of the first two trials, but the State reserved him as a rebuttal witness during the second trial.
Prior to the third trial, the prosecutor informed Cassett's attorney that she intended to call Sloss as a witness in her case-in-chief. Cassett's attorney moved the court to preclude the State from calling Sloss as a witness. The trial court ruled that Sloss would be permitted to testify, but that his testimony would be limited to what Cassett said to Sloss. Cassett's attorney responded that this ruling "necessarily puts me in the position of having to open the whole issue of [the] plea agreement and sentencing" and noted on the record that he therefore would "approach it from that manner as a point of necessity given the Court's rulings."
Sloss testified during direct examination that Cassett told him he had pled guilty to oral sex with his stepson. Cassett's attorney elicited further information from Sloss on cross-examination regarding the guilty plea and the circumstances surrounding it. Cassett was convicted of two counts of child molestation and four counts of sexual conduct with a person under the age of 14. The trial court sentenced him to consecutive prison terms of 20 and 30 years and four life terms.
Cassett appealed his conviction to the Arizona Court of Appeals, arguing that (1) the trial court should have precluded Sloss from testifying about admissions Cassett made during the preparation of the presentence report, under Ariz. R.Crim. P 26.6(d)(2),1 the purpose of which is to protect criminal defendants from self-incrimination, and that (2) the trial court abused its discretion when it denied Cassett's request for a one-day mid-trial continuance to locate and bring to court a defense witness.
While his appeal was pending, Cassett sought post-conviction relief in the trial court, alleging: (1) ineffective assistance of counsel based on (a) trial counsel's decision to present evidence of Cassett's prior guilty plea, (b) trial counsel's failure to interview a potential defense witness, and (c) previous trial counsel's disclosure of the existence of the pre-sentence report; and alleging (2) that the prosecutor engaged in misconduct by (a) intimidating potential defense witnesses, and (b) informing the jury of information contained in a document the court had ruled inadmissible. The trial court denied relief without an evidentiary hearing.
Cassett appealed the denial of post-conviction relief to the Arizona Court of Appeals, which consolidated his appeals and affirmed Cassett's convictions and sentences. The Court of Appeals ruled that: (1) the trial court did not err in admitting Sloss's testimony because Ariz. R.Crim. P. 26.6(d)(2) only applies to pre-sentence reports prepared pursuant to court order, not private pre-sentence reports; (2) the trial court did not abuse its discretion in denying a mid-trial continuance; (3)(a) trial counsel's decision to offer evidence about the plea negotiations was tactical and did not constitute unreasonable performance; (3)(b) Cassett was not prejudiced by his counsel's failure to interview a potential witness; and (4) Cassett was not prejudiced by any alleged prosecutorial misconduct. The Court of Appeals declined to consider Cassett's claim that his previous trial counsel rendered ineffective assistance by disclosing the existence of the pre-sentence report because it held that this claim was precluded under Ariz. R.Crim. P. 32.2(a)(3).2 Cassett filed a petition for review with the Arizona Supreme Court, which denied review on October 31, 1996.
On September 2, 1997, pursuant to 28 U.S.C. § 2254, Cassett filed a habeas petition in the United States District Court for the District of Arizona, stating the following claims for relief: (1) the trial court violated Cassett's federal due process rights by allowing Sloss to testify that Cassett had pled guilty; (2) the trial court's denial of a mid-trial continuance to find and bring to court a defense witness violated Cassett's Sixth Amendment right to compulsory process; (3) Cassett received ineffective assistance of counsel because (a) his trial counsel elicited evidence that Cassett had pled guilty, (b) his counsel failed to interview a potential defense witness, and (c) his previous counsel disclosed the existence of the pre-sentence report; and (4) the prosecutor violated Cassett's Fifth Amendment rights by engaging in misconduct, including (a)...
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