Fox v. Johnson
| Decision Date | 08 August 2016 |
| Docket Number | No. 13-56704,13-56704 |
| Citation | 832 F.3d 978 |
| Parties | Candace L. Fox, Petitioner–Appellant, v. Deborah K. Johnson, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Parente (argued), Assistant Federal Public Defender; Sean K. Kennedy, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.
David Wildman (argued) and Jason Tran, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney
General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.
Before: Stephen Reinhardt, N. Randy Smith, and Andrew D. Hurwitz, Circuit Judges.
;
OPINION
N.R. SMITH
, Circuit Judge:
Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Fox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. § 2254
habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.
We refuse Fox's request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.
In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie Rangel drove to Lewis Levy's apartment to collect $100 that Levy allegedly owed Meyer for sexual services. Meyer told the others that Levy had $20,000 to $30,000 in travelers checks in his apartment. The group forced their way into the apartment and held Levy at gunpoint while they searched for cash and travelers checks. After they found Levy's wallet and $20,000 in travelers checks, Meyer and Rangel departed to purchase cocaine, leaving Fox and Peters with Levy.
Levy took this opportunity to run for the door. Peters struck Levy over the head with the barrel of his revolver until the handle broke. Peters then attempted to shoot Levy, but his gun jammed. Fox handed Peters a large steak knife from Levy's kitchen. Peters attempted to stab Levy twice, but the blade bent and did not penetrate. At that point, Levy fell to the ground nearly unconscious. When Meyer and Rangel returned with the cocaine, Levy remained semiconscious on the ground. After Rangel left, Peters explained to Meyer that Levy had tried to escape.
After Fox, Peters, and Meyer used the cocaine, Meyer stated that she was not leaving the apartment until Levy was dead. Meyer took a Swiss Army knife from her pocket and repeatedly stabbed Levy. Fox struck Levy over the head with a beer bottle, and Peters attempted to strangle Levy with a phone cord. Nonetheless, Levy was still alive. Peters then left the apartment and waited in Fox's car. Twenty minutes later, Fox and Meyer left the house with two shopping bags containing the gun and knives used in the attack. They told Peters that Levy was dead.
The next day, the group cashed several of Levy's travelers checks and purchased drugs. The following morning, Meyer's roommate called the police after overhearing an argument between Meyer and Fox about the murder. The police questioned Meyer, who disclosed the location of Levy's body. After further investigation, the police arrested Fox, Meyer, and Peters.
Fox, Meyer, and Peters were charged with first-degree murder, first-degree burglary and robbery, and the special circumstances of (a) murder during the commission of a robbery and burglary and (b) use of a deadly weapon in the murder, making them eligible for the death penalty. Fox agreed to plead guilty to second-degree murder1 in exchange for testifying against Peters.2
The plea agreement was not reduced to writing. Fox argues that she was promised she “would be paroled after serving 7.5 years with good behavior.” The State contends that Fox was promised she would be sentenced to fifteen years to life in prison, but would be eligible for parole consideration after seven and one-half years. Fox's change of plea hearing on November 6, 1984, supports the State's contention:
After being so advised, Fox pleaded guilty. The court accepted her plea as knowing and voluntary. There is thus no contest that Fox agreed to a sentence of fifteen years to life. But, Fox was not advised during the plea colloquy that she also faced a lifetime term of parole when released.
At the sentencing hearing, Fox's counsel asked for a continuance to amend the probation report. The court responded: In response, Ficht stated that Fox's probation report was “the most outrageous document I've seen.” The court told Ficht to Any parole consideration was only discussed during the following exchange:
Fox now argues that this exchange “modified the plea agreement” to require that she be paroled after seven and one-half years in prison. However, neither the parties nor the court acknowledged any modification of the plea agreement at the hearing. Following the exchange between Ficht and the prosecutor, the court sentenced Fox to fifteen years to life in state prison without any reference to parole eligibility or release on parole, stating: Fox did not object.
On July 1, 1986, Fox filed her first petition for a writ of habeas corpus in state Superior Court. Rather than seeking specific performance of the alleged plea agreement, Fox instead sought to withdraw her plea of guilty on two grounds.
First, Fox alleged that, when she entered her plea, she “did not understand that her term could exceed seven and one-half years even if her prison behavior were good.” Instead, Fox claimed that she believed that she was “entitled to release after seven and one-half years, provided that she behaved properly in state prison.” Fox acknowledged that such a belief was contrary to California law, because a petitioner “is not entitled to release after serving the minimum period of incarceration.” Fox also acknowledged that “no firm promise ... was given [to her] before her actual sentencing” as to eligibility for parole in seven and one-half years. However, Fox maintained (citing the portion of the sentencing proceedings excerpted above) that the “the parties understood that if [Fox] was cooperative and fully truthful in her testimony, she would be eligible for parole after 7 1/2 years ... and in fact would receive parole if she behaved herself in state prison.” Fox also argued that, before entering her plea, she “was not advised of the mandatory post-incarceration parole term.” Fox asserted that, had “she known the full consequences of her guilty plea, she would not have pled guilty.”
Second, Fox asserted that she had received ineffective assistance of counsel during the plea process and that she was “not in fact guilty of second degree murder.”3 Fox argued that her previous attorney “erroneously” told her that, if she went to trial, she could not use a defense of duress; her new counsel, on the other hand, assured her that she “had a good defense of duress.” Fox argued that her former attorney failed to “comprehend and/or advise her of the defenses available” and that she entered her plea after “rel [ying] upon [such] erroneous legal advice.” The Superior Court denied this first habeas petition, citing the guilty plea transcript.
On August 26, 1986, Fox filed a second petition in the Court of Appeal, alleging “that her sentencing was unlawful and the matter should be remanded for resentencing.” In this petition, Fox repeatedly insisted that she sought “withdrawal [of] her plea of guilty,” making the same arguments as those in her Superior Court petition. On September 4, 1986, the Court of...
To continue reading
Request your trial
-
Patsalis v. Shinn
...under AEDPA where the state court did not decide the petitioner's constitutional claim on the merits. See 47 F.4th 1098 Fox v. Johnson , 832 F.3d 978, 985 (9th Cir. 2016) ; 28 U.S.C. § 2254(d). In that situation, federal courts review a habeas petitioner's federal claims de novo. See Fox , ......
-
Rangel v. Broomfield
... ... unreasonable determination of the facts in light of the ... evidence presented in the State court proceeding ... 28 U.S.C. § 2254(d); see also Patsalis v ... Shinn , 47 F.4th 1092, 1097 (9th Cir. 2022) (citing ... Johnson v. Williams , 568 U.S. 289, 292 (2013)) ... (quoting 28 U.S.C. § 2254(d)); Harrington v ... Richter , 562 U.S. 86, 98 (2011); Lockyer, 538 ... U.S. at 70-71; Williams , 529 U.S. at 413 ... “[A] ... state has ‘adjudicated' a petitioner's ... ...
-
Cruise Lines Int'l Ass'n Alaska v. City & Borough of Juneau
...Inc., 697 F.3d 1221, 1226 (9th Cir. 2012) ). " ‘[E]ven constitutional rights can be waived if not timely asserted.’ " Fox v. Johnson, 832 F.3d 978, 989 (9th Cir. 2016) (quoting Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999) ).Defendants must first show that plaintif......
-
Haight v. White
...to choose the most appropriate remedy based on the circumstances of the case. Santobello, 404 U.S. at 263. See also Fox v. Johnson, 832 F.3d 978, 988 (9th Cir. 2016) ("But, here, rather than seek specific performance, Fox choseto withdraw her guilty plea, voiding the plea agreement. She sou......