Chacon v. Wood

• Decision Date: 07 September 1994
• Docket Number: No. 92-35454,92-35454
• Citation: 36 F.3d 1459
• Parties: Jose S. CHACON, Petitioner-Appellant, v. Tana WOOD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1459

36 F.3d 1459

Jose S. CHACON, Petitioner-Appellant, v. Tana WOOD, Respondent-Appellee.

No. 92-35454.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 6, 1993.

Filed Oct. 22, 1993.

Withdrawn Feb. 14, 1994.

Argued and Submitted April 7, 1994.

Decided Sept. 7, 1994.

Julia Moudy, Law Student, Gonzaga University School of Law, Supervised by Speedy Rice, University Legal Assistance, Spokane, WA, for petitioner-appellant.

John M. Jones, Asst. Atty. Gen., Olympia, WA, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: TANG, BOOCHEVER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Jose Chacon, a former Washington State prisoner, appeals the district court's denial of his petition for habeas corpus, 28 U.S.C. Sec. 2254. Chacon claims that his guilty plea was involuntary and that he was denied effective assistance of counsel. Both of these claims center on allegations that a court interpreter deliberately failed to translate trial counsel's advice fully or accurately to Chacon. Specifically, Chacon (who claims that he is innocent) alleges that the interpreter vastly understated the probable sentence he would receive if he pleaded guilty, and that he would not have pleaded guilty if he had been fully informed of the consequences. On appeal, Chacon claims that the district court erred in concluding that he failed to exhaust state remedies on his guilty plea claim, as well as in summarily denying his ineffective assistance claim. Chacon filed this appeal in April of 1992, and a prior panel issued a memorandum disposition affirming in October of 1993. See Chacon v. Blodgett, No. 92-35454 (9th Cir. Oct. 22, 1993). However, that panel granted a petition for rehearing on February 14, 1994, and vacated its earlier decision. We heard oral argument on April 7, 1994, and now reverse.

I. Facts

In 1984, Chacon was charged in Washington State court with one count of assault in the second degree, and one count of indecent liberties. Pursuant to a plea bargain, he pleaded guilty to the assault count, and the indecent liberties count was dismissed. The trial court sentenced him to a maximum term of ten years in prison, and the state Indeterminate Sentence Review Board set an exceptional minimum term of 60 months, departing upward from the guideline range of 8-10 months. Although Chacon did not take any direct appeal from his conviction or sentence, he did make several attempts to pursue state postconviction remedies, all while acting pro se. His first personal restraint petition, filed in December of 1986, challenged only the ISRB's decision to set an exceptional minimum term. The Washington Court of Appeals dismissed this petition. Chacon then filed a pleading styled a "Reconsideration," which included several challenges to his conviction. The Washington Supreme Court treated this pleading as a motion for discretionary review and denied it on July 17, 1987.

Still proceeding pro se, Chacon initiated another round of state postconviction proceedings by filing a second personal restraint petition on March 14, 1988. Although this petition raised several challenges to his conviction, two are pertinent here. Chacon alleged that "he was compelled to plead guilty upon premises [sic ] by his public defender made with promises he would receive a lighter sentence in his dealing with the prosecutor, with the understanding the judge would give him this lighter term in return for this plea of guilt." He also alleged that "[h]is court appointed attorney lied to him about these facts and concealed these defenses from the court and the accused." The Washington Court of Appeals ordered the Yakima County Superior Court to hold an evidentiary hearing on these claims.

At the hearing, which occurred on September 7, 1988, Chacon and Glen Paul Warren, Chacon's trial counsel, were the only two witnesses. Warren acknowledged that, at the time of the original trial court proceedings, he did not speak any Spanish and Chacon did not speak any English. Thus, all attorney-client communications between Chacon and Warren occurred through the intermediation of the Yakima County official court interpreter, "JG". JG also interpreted all of the trial court proceedings. JG, however, did not testify at the hearing. Instead, Chacon's advisory counsel, Walter Curnutt, represented to the court that he had spoken with her and that she had stated that she could not remember any of the specific communications she related in Chacon's case.

Chacon testified that Warren, by means of JG, told him on at least four occasions that he would only have to serve three months in prison if he pleaded guilty to the assault charge, but that "it could be very bad for me" if he went to trial and the jury convicted him of both counts. Warren denied saying that Chacon would only spend three months in prison if he pleaded guilty to the assault charge. He admitted to stating that there was a high likelihood that Chacon would receive consecutive terms of imprisonment if he were convicted of both counts. Warren also admitted that he could not have verified whether JG was fully and accurately translating these statements or any other part of his conversations with Chacon. Nor could he have verified whether JG was, at any time, properly informing Chacon of what was transpiring in connection with the court proceedings.

At the close of the evidentiary hearing, the court stated that it found Warren to be a credible witness, and that it found Chacon to be "sincere in his belief that he's been treated unfairly within the system." The Superior Court then issued written findings. These findings stated that Warren gave Chacon "full and proper representation," that Warren "did not mislead or improperly advise" Chacon on the consequences of his plea, that Warren did not tell Chacon he would receive only a three-month sentence if he pleaded guilty, and that Chacon's plea "was made freely and voluntarily." The court found that JG "is completely competent" and that Chacon "does not claim he had any problem understanding the interpreter," but it did not make any finding regarding Chacon's allegations that JG failed to provide complete and accurate translations to him.

The Court of Appeals found substantial evidence to support the Superior Court's findings, and it entered an order dismissing the petition on June 1, 1989. Chacon, still acting pro se, filed a petition for discretionary review in the Washington Supreme Court ten days later. This petition urged that the Court of Appeals erred in each of its conclusions, but it did not include any sustained argument on these points aside from a two-page letter which Chacon appended to the petition. The Supreme Court denied the petition on November 1, 1989.

On June 26, 1991, Chacon filed this federal habeas petition pro se. The petition raised two grounds for relief: (1) "that the Conviction obtained by Plea of Guilty was unlawfully induced or not made voluntarily with the understanding of the nature of the charge and consequences of the Plea;" and (2) that he was denied effective assistance of counsel. Each of these grounds referred explicitly to the conduct of the interpreter, JG, in the trial court. With regard to the involuntary guilty plea claim, the petition stated that "during the guilty plea hearing whenever Mr. Chacon was addressed he would be saying to the Interpreter what are they saying she would simply say just say 'YES.' " With regard to the ineffective assistance claim, the petition made clear that it challenged not only Warren's actions but also "the validity of the actions or lack of action of [JG ] acting as an Interpreter for the court." (emphasis in original). In support of his claims, Chacon alleged that JG had engaged in a pattern and practice of intentionally mistranslating court proceedings and inducing Spanish-speaking defendants to plead guilty involuntarily. According to the habeas petition, "Court Interpreter JG has [ ]now been Barred and dis[ ]missed from the Yakima County Superior Court as an interpreter for her negligence in a court of law when interpreting in legal issues and further for coerc[ing] Spanish origin clients into guilty pleas without informing them of the consequences and/or understanding of the nature of the charges against them."

On the state's motion, the district court concluded that Chacon had failed to exhaust state remedies on his involuntary guilty plea claim. Accordingly, on November 15, 1991, it dismissed the entire petition as a "mixed petition" under the rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, the court's order of dismissal stated that "[i]f petitioner wishes to pursue his claim of ineffectiveness of assistance of counsel, he shall serve and file an amended petition regarding only that claim within 30 days from the date of this order." Chacon then filed an amended petition which raised only the ineffective assistance claim. Once again, Chacon's petition explicitly put in issue "the validity of the actions or lack of action of [JG ], acting as Interpreter for the court."

On February 18, 1992, the state filed a motion for summary denial of the amended petition. The state's motion argued that the district court should defer to the state court fact findings on the ineffective assistance issue--even though the state court had not made any findings regarding whether JG had accurately or completely translated the communications between Chacon and his counsel. In lieu of responding to this motion, Chacon filed a motion for voluntary dismissal of his petition without prejudice, in order to allow him to exhaust any unexhausted claims. Chacon claimed that he had not understood the district court's earlier order of dismissal, and that he had thought he was required to file an amended petition. On April 16, 1992, the district court denied Chacon's motion for...