Fields v. Calderon

• Decision Date: 10 September 1997
• Docket Number: No. 96-99014,96-99014
• Citation: 125 F.3d 757
• Parties: 97 Cal. Daily Op. Serv. 7273, 97 Daily Journal D.A.R. 11,757 Stevie Lamar FIELDS, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 757

125 F.3d 757

97 Cal. Daily Op. Serv. 7273, 97 Daily Journal

D.A.R. 11,757

Stevie Lamar FIELDS, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee.

No. 96-99014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 19, 1997.

Decided Sept. 10, 1997.

David S. Olson, Carlsmith, Ball, Wichman, Case, & Ichiki, Los Angeles, California, for petitioner-appellant.

Carol Frederick Jorstad, Deputy Attorney General, Los Angeles, California, for respondent-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-92-00465-DT.

Before: PREGERSON, WIGGINS, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Stevie Lamar Fields ("Fields") appeals the district court's order granting Warden Calderon's ("the State's") motion to dismiss eleven claims contained in Fields' second amended federal petition for writ of habeas corpus because they were declared procedurally defaulted by the California Supreme Court. We have jurisdiction under 28 U.S.C. § 1292(b). We vacate and remand.

PROCEDURAL HISTORY

In 1979, Fields was convicted of murder and sentenced to death. ¹ In 1983, his conviction and sentence were affirmed by the California Supreme Court on direct appeal. People v. Fields, 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 204 (1984).

In 1984, Fields filed a petition for writ of habeas corpus in the California Supreme Court. After a hearing on the issue of whether Fields' attorney provided ineffective assistance, the California Supreme Court denied the petition in 1990, holding that Fields suffered no prejudice from his attorney's alleged incompetence. In re Fields, 51 Cal.3d 1063, 275 Cal.Rptr. 384, 800 P.2d 862 (1990), cert. denied, 502 U.S. 845, 112 S.Ct. 140, 116 L.Ed.2d 107 (1991).

On May 25, 1993, Fields filed a federal petition for writ of habeas corpus in district court. On July 29, 1993, the California Supreme Court decided two cases that are critical to the resolution of this appeal: In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), and In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993).

On August 2, 1993, Fields filed an amended federal habeas petition. The State moved to dismiss the petition on the grounds of procedural default. Finding unexhausted claims, the district court stayed federal proceedings on October 20, 1993, in order to allow Fields an opportunity to exhaust his state claims.

On January 14, 1994, Fields filed a second petition for writ of habeas corpus in the California Supreme Court. The State moved for denial of the state petition on procedural grounds. On October 14, 1994, the California Supreme Court denied Fields' second state habeas petition. In the portion relevant to this appeal, the California Supreme Court ruled:

The following claims are denied on the procedural ground of untimeliness, in that they could have been, but were not, raised on appeal or in the first habeas corpus petition: the claims set forth in parts IX (A, B, E, F, G), X (B, C, F, G, H, I), XV, XVIII, XXI (as to the claim relating to the instruction on suppression of evidence), XXIII, XXIV, XXV, XXVI, XXX, XXXI. (In re Harris (1993) 5 Cal.4th 813, 829, 21 Cal.Rptr.2d 373, 855 P.2d 391; In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513.) ²

On March 20, 1995, the United States Supreme Court denied certiorari. Fields v. California, 514 U.S. 1022, 115 S.Ct. 1369, 131 L.Ed.2d 225 (1995).

On March 21, 1995, Fields filed a second amended habeas petition in the district court. On July 31, 1995, the State filed a motion to dismiss the claims denied by the California Supreme Court's order due to procedural default. After a hearing, the district court granted the motion on June 10, 1996, and dismissed all of the claims to which the State had asserted a procedural bar. On July 30, 1996, the district court denied Fields' motion for reconsideration and granted his motion for interlocutory appeal. On August 27, 1996, we granted Fields permission to take an interlocutory appeal of this dismissal order.

DISCUSSION

"The district court's dismissal of the petition for writ of habeas corpus on the The issue for decision is whether the California Supreme Court's Dixon rule serves as an adequate and independent state ground for its denial of eleven claims in Fields' habeas petition. In Dixon, the California Supreme Court held:

ground of state procedural default involves an issue of law that we review de novo." Morales v. Calderon, 85 F.3d 1387, 1389 n. 6 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 500, 136 L.Ed.2d 391 (1996). See also Hunter v. Aispuro, 982 F.2d 344, 346 (9th Cir.1992).

The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.

Ex parte Dixon, 41 Cal.2d 756, 264 P.2d 513, 514-15 (1953) (In Bank) (citations omitted). If the Dixon rule provides an adequate and independent state ground for the California Supreme Court's decision, Fields "has defaulted procedurally on the affected claims and cannot raise them in federal court unless he shows cause and prejudice or a fundamental miscarriage of justice." Morales, 85 F.3d at 1389 (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991)). Because we conclude that the Dixon rule is not an adequate state ground to bar federal review of Fields' defaulted claims, we will not address Fields' alternative argument that the Dixon rule is not an independent state ground sufficient to bar federal review. ³

A. The Trigger Date

Before addressing the adequacy of the Dixon rule, we must first determine the proper date on which the rule's adequacy is to be measured. The district court ruled that "[t]he Dixon rule was firmly established both at the time petitioner filed his second habeas petition [January 14, 1994] and at the time of his direct appeal [1981]." The State argues that the correct trigger date is October 14, 1994, the date on which the California Supreme Court denied Fields' second state habeas petition where the procedural bar at issue was actually applied. Fields argues that the correct trigger date is 1981, the time of his direct appeal, when the defaulted claims should have been raised. Our discussion of the 1981 date will demonstrate the flaw in the State's reasoning.

The Supreme Court of the United States has made it clear that a state's procedural rule used to bar consideration of a claim "must have been 'firmly established and regularly followed' by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984)). In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488 (1958), the Court refused to apply a state's procedural rule, because the defendant there could not be "deemed to have been apprised of its existence." In Ford, the Supreme Court said that applying the rule to Ford would "apply a rule unannounced at the time of [Ford's] trial...." Ford, 498 U.S. at 424, 111 S.Ct. at 857.

We have held that the proper time for determining whether a procedural rule was firmly established and regularly followed is "the time of [the] purported procedural default." Calderon v. Bean, 96 F.3d 1126, 1130 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1569, 137 L.Ed.2d 714 (1997). Therefore, we examine whether the state courts were regularly and consistently applying the relevant procedural default rule "at the time the claim should have been raised." Calderon v. U.S. Dist. Ct. For E.D. of Cal., 103 F.3d 72, 75 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997).

With respect to the Dixon rule, we have held that a relevant point of reference for assessing its application is the time at which the petitioner "had an opportunity to raise In addition to avoiding the unfairness of applying a new rule retroactively, the requirement that the rule be in existence at the time of the claimed default, the 1981 appeal in this case, also gives the defendant and his counsel notice that the claims must be raised at that time. A trigger date of 1994, when the default rule was actually applied by the California Supreme Court, would not insure that Fields and his counsel knew in 1981 that all claims had to be raised then or be held to be procedurally barred. The requirement of notice thus dooms the State's attempt to use 1994 as the trigger date. A consistently applied rule in 1994 could not cure a lack of notice in 1981.

the claims on direct appeal." Id. See also Bean, 96 F.3d at 1131 (evaluating the Dixon rule "at the time Bean filed his direct appeal"). Because the Dixon rule precludes collateral review of a claim that could have been brought on direct appeal, the procedural default, though announced by the California Supreme Court when the habeas petition is denied, technically occurs at the moment the direct appeal did not include those claims that should have been included for review. In this case, that moment is 1981, the year of Fields' direct appeal.

Fields does not attempt to demonstrate the inconsistent application of the Dixon rule in 1981 by employing the traditional method of providing "a representative sample of cases in which the default was either invoked or, at least, where it arguably might have been applicable but was disregarded." Fierro v. Calderon, No. CV-94-3198-LGB, at 15 (C.D. Cal. June 12, 1996) (citing Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d...