Edelbacher v. Calderon
| Decision Date | 18 November 1998 |
| Docket Number | No. 97-16947,97-16947 |
| Citation | 160 F.3d 582 |
| Parties | 98 Cal. Daily Op. Serv. 8480, 98 Daily Journal D.A.R. 11,789 Peter T. EDELBACHER, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Quin Denvir, Federal Defender, Mark E. Cutler, Assistant Federal Defender, Sacramento, California, for petitioner-appellant.
Mark Anthony Johnson, Deputy Attorney General, Sacramento, California, for respondent-appellee.
Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Chief District Judge, Presiding. D.C. No. CV-97-05401-REC.
Before: SNEED, HALL, and RYMER, Circuit Judges.
Petitioner Peter T. Edelbacher ("petitioner") appeals from a judgment of the United States District Court for the Eastern District of California, Judge Robert E. Coyle, dismissing his petition for writ of habeas corpus. On appeal, petitioner argues that we are bound by Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995). The narrow holding in Phillips does not control this case. When there We affirm the judgment below.
is a pending state penalty retrial and no unusual circumstances, we decline to depart from the general rule that a petitioner must await the outcome of the state proceedings before commencing his federal habeas corpus action.
Pursuant to his conviction for first degree murder, petitioner is currently in the custody of the California Department of Corrections at San Quentin State Prison. Arthur Calderon is Warden at San Quentin State Prison and Tom Maddock is Director of the California Department of Corrections (collectively, the "State").
On March 31, 1983, following a trial in California Superior Court for the County of Fresno, a jury convicted petitioner of first degree murder with special circumstances. The court sentenced him to death two months later. 1 On January 23, 1989, the California Supreme Court affirmed petitioner's conviction, but reversed the death sentence and remanded the matter for retrial of the penalty phase. People v. Edelbacher, 47 Cal.3d 983, 254 Cal.Rptr. 586, 766 P.2d 1 (Cal.1989).
On October 15, 1991, while awaiting retrial on the proper penalty, petitioner filed a petition for writ of habeas corpus in the California Superior Court for the County of Fresno which challenged the validity of his guilt conviction on the ground that his lawyer's failure to investigate the issue of insanity constituted ineffective assistance of counsel.
On February 23, 1993, after a three-month evidentiary hearing, the superior court issued a writ which granted relief to allow petitioner to enter a plea of not guilty by reason of insanity and to afford him the opportunity to have a separate trial on that issue. The State promptly appealed this grant of partial habeas relief. On December 15, 1995, the Court of Appeal of the State of California, Fifth Appellate District, reversed the superior court judgment.
One month later, petitioner filed for review in the Supreme Court of California. On March 14, 1996, California's highest court denied the petition. On June 12, 1996, petitioner then filed a petition for writ of certiorari in the United States Supreme Court which was denied on March 17, 1997.
At this point, petitioner had exhausted his remedies in state court with respect to guilt, but not with respect to the proper penalty. Petitioner, after having litigated the insanity issue in the state courts and the United States Supreme Court for approximately six years, next sought federal relief from his conviction by filing petition for writ of habeas corpus in the United States District Court for the Eastern District of California on April 23, 1997. Petitioner relies on Phillips, supra. The State contends that petitioner's writ petition is premature pending the completion of his penalty phase retrial in state court, as required by the California Supreme Court's ruling in 1989.
On July 2, 1997, District Court Judge Coyle granted the State's motion to dismiss. Petitioner filed timely notice of appeal from that order on July 28, 1997. We now affirm the judgment of the district court.
We review de novo the district court's order dismissing a habeas corpus petition. See Fields v. Calderon, 125 F.3d 757, 759 (9th Cir.1997). Findings of fact below are scrutinized for clear error. See Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).
We must decide whether petitioner can challenge in federal court his state conviction of guilt when he has exhausted all potential state remedies with regard to his guilt, but not his sentence, the retrial of which is proceeding in the state court. 2 Petitioner contends that Phillips, supra, controls our decision because, according to him, "the facts are virtually identical" to his case. We disagree.
In Phillips, petitioner was convicted of first degree murder with special circumstances in 1980, and subsequently sentenced to death. Phillips, 56 F.3d at 1032. Five years later, on automatic appeal, the Supreme Court of California affirmed Mr. Phillips' guilt conviction but reversed his death sentence. See id. In 1992, following the retrial of the death penalty, Phillips was again sentenced to death. See id. He filed his automatic appeal of the renewed death sentence in the California Supreme Court in 1993. See id. In 1995, while that state appeal was pending, this Court permitted Phillips to seek habeas relief in federal court challenging his guilt conviction. See id. Thus, in Phillips, the petitioner's penalty phase retrial had taken place and he had received a new sentence of death before the federal petition was even filed.
That is not the situation in this case. In 1983, to repeat, petitioner was convicted of first degree murder with special circumstances. The court sentenced him to death two months later. In 1989, on automatic direct appeal, the Supreme Court of California affirmed petitioner's conviction of guilt, but reversed his death sentence. In 1991, while awaiting retrial on the death penalty issue, petitioner challenged in state court his conviction of guilt on the grounds that counsel failed to properly investigate the insanity defense. Petitioner's challenge of his conviction was ultimately denied by the California Supreme Court and the United States Supreme Court declined to issue writ of certiorari. Thus, by the time petitioner filed his habeas petition in federal court, he had exhausted his remedies in state court with respect to the issue of guilt.
However, petitioner had not, at that time, exhausted his penalty phase proceedings in state court. Petitioner's death penalty retrial mandated by the California Supreme Court had not yet commenced. In Phillips, the penalty retrial had concluded and Phillips had again been sentenced to death before the commencement of his habeas action in federal court seeking relief from his guilt conviction. Here, on the other hand, there is no penalty, death or otherwise, that is currently imposed upon petitioner. The determination of the proper penalty is currently before the state court.
Petitioner insists that Phillips did not turn on the existence of a death penalty or conclusion of the retrial, but rather on the length of the delay without federal review of the guilt verdict. The State, on the other hand, insists that Phillips turned on the unusual circumstances rather than the length of delay and, in any event, does not apply in the absence of a state court judgment in the penalty phase. We agree with the State's position that Phillips does not control this case.
The circumstances in this case differ from Phillips in several material respects: (1) a retrial of the penalty phase in state court is ongoing; (2) there is no assignment of the necessary capital or non-capital status in this case; (3) there are no "unusual circumstances" which might suggest that "no end is in sight" to the state court proceedings and (4) the delay in question is not attributable to an "ineffective" state process, but primarily to the extended proceedings relating to the guilt issue. We shall address each of these circumstances.
Petitioner was found guilty and sentenced to death in 1983. The California Supreme Court reversed the death sentence and remanded the matter for retrial of the penalty phase in 1989. People v. Edelbacher, 47 Cal.3d 983, 254 Cal.Rptr. 586, 766 P.2d 1. The retrial is ongoing in superior court. 3 In Phillips, to repeat, the penalty phase retrial had already concluded. Although an appeal therefrom was ongoing, there existed a judgment imposing the death penalty at the time Phillips filed for relief in federal court from his conviction of guilt.
Petitioner contends that this difference is of no consequence. He argues that while it is true that he might not be sentenced to death in his ongoing retrial, it was equally true that Phillips might not have been sentenced to death in his then-ongoing appeal.
Petitioner overlooks a fundamental difference between the Phillips case and his own. In Phillips, the focus was upon the ineffective state process which resulted in an unreasonably long delay between the verdict of guilty and the resolution of whether the penalty of death was appropriate. It took fifteen years to resolve the latter. Phillips, 56 F.3d at 1035. This case is different. Here the delay is attributable to the petitioner's quite legitimate efforts in state court to escape guilt on grounds of insanity. The district court recognized the distinction between this case and Phillips and properly held that absent an ineffective state process or other extraordinary circumstances, the state must be allowed, at a minimum, to conclude its penalty phase proceedings within a reasonable time before the federal courts entertain a habeas action challenging petitioner's...
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