Jones v. Smith

• Decision Date: 18 January 2001
• Docket Number: No. 99-56405,99-56405
• Citation: 231 F.3d 1227
• Parties: (9th Cir. 2000) WILLIAM J. JONES, Petitioner-Appellant, v. M.L. SMITH, Warden; ATTORNEY GENERAL STATE OF CALIFORNIA, Respondents-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1227

231 F.3d 1227 (9th Cir. 2000)

WILLIAM J. JONES, Petitioner-Appellant, v. M.L. SMITH, Warden; ATTORNEY GENERAL STATE OF CALIFORNIA, Respondents-Appellees.

No. 99-56405

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 4, 2000

Filed November 7, 2000

Amended January 18, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Marilee Marshall, Marilee Marshall & Associates, Pasadena, California, for the petitioner-appellant.

Ellen Birnbaum Kehr, Deputy Attorney General, State of California, Los Angeles, California, for the respondents appellees.

Appeal from the United States District Court for the Central District of California Edward Rafeedie, District Judge, Presiding. D.C. No.CV-97-2818-ER

Before: James R. Browning, Cynthia Holcomb Hall, and Barry G. Silverman, Circuit Judges.

HALL, Circuit Judge:

In this habeas corpus case we confront the question of whether, as of January 14, 1992, the omission of a premeditation charge from a state court attempted murder information combined with its inclusion in the jury instructions constituted a variance or an amendment to the information. We hold that because premeditation was a sentence enhancing provision under California law on the date Petitioner's conviction became final, the discrepancy between the information and jury instructions was a variance subject to harmless error review. Since Petitioner had actual notice that he was being charged with premeditated attempted murder, we find the error in the case at bar to be harmless, and deny the petition.

I.

Petitioner, William J. Jones, is a state prisoner in California serving a life sentence after being convicted of attempted murder. The facts leading up to Petitioner's conviction are not disputed by the parties. Petitioner and a companion hailed a taxicab to take them from Chino, California to Carson, California. Because Petitioner did not have enough money to pay the full fare, he gave the cab driver, Magdy Ibrahim, a $45 deposit and his identification card, to be held as collateral until Petitioner paid the balance at the end of the trip. Upon arriving in Carson, Petitioner and Ibrahim exited the car. Petitioner asked Ibrahim to return his identification, and Ibrahim requested the balance due. Petitioner then shot Ibrahim four times and reclaimed his identification. Petitioner also took money from Ibrahim's pants and jacket. Ibrahim survived the shooting, but was left paralyzed from the chest down.

On April 18, 1989, state prosecutors filed an information alleging, inter alia, that Petitioner did "willfully, unlawfully, and with malice aforethought" attempt to murder Magdy Ibrahim. The information did not allege that the attempted murder was premeditated. The two sides were unable to negotiate a mutually agreeable plea bargain, as Petitioner refused the prosecution's offer of a 14-year-sentence. At trial, both the prosecution and defense assumed that premeditation had been alleged in the information and argued before the jury the issue of whether Petitioner acted with premeditation. At the close of trial, the trial court instructed the jury on the elements of an attempted murder charge, and instructed the jurors to decide not only whether Petitioner was guilty of attempted murder but also whether the attempted murder was "willful, deliberate, and premeditated." The jury convicted Petitioner and found that the murder was willful, deliberate, and premeditated. Petitioner was sentenced to life imprisonment with the possibility of parole, consistent with his conviction of attempted murder with premeditation. On January 14, 1992, the time for Petitioner to file a writ of certiorari with the United States Supreme Court expired, and his case became final for the purposes of direct appeal.

In 1995, Petitioner filed a state court writ of habeas corpus, alleging that he was convicted of a crime with which he never had been charged in the information, in violation of his constitutional right to be informed of the nature and the cause of the accusation against him. Petitioner also alleged that his right to receive effective assistance of counsel had been violated because his lawyers failed to notice the discrepancy between the information and jury instruction at trial and on direct appeal. The petition was denied by the trial court, the court of appeal, and the California Supreme Court. Petitioner then filed a substantially similar habeas petition in federal court in 1997. The district court denied the petition, accepting the recommendations contained in the report of a magistrate judge. Petitioner filed a timely appeal after the district court granted him a Certificate of Appealability ("COA"). The district court had jurisdiction under 28 U.S.C. 2254. We have jurisdiction pursuant to 28 U.S.C. 1291 & 2253.

II.

The district court's decision denying a petition for habeas relief is reviewed de novo. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). The district court's factual findings are reviewed for clear error. See Houston v. Roe, 177 F.3d 901, 905 (9th Cir. 1999), cert. denied, 120 S. Ct. 1168 (2000). Under 28 U.S.C. 2254(d), the federal courts are not to grant a state inmate's application for a writ of habeas corpus where, as here, the claim was adjudicated on the merits by the state courts, unless the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

III.

The district court, in adopting the magistrate's report, held that Petitioner had failed to exhaust his state remedies on his constructive amendment claim by neglecting to present his claim as a violation of the Federal Constitution before the state courts. We agree with Petitioner that the district court's determination was erroneous in this respect. Petitioner's state court briefs explicitly invoked his Sixth Amendment right to be informed of the nature and cause of the accusation during his state court habeas proceedings. Such invocation of the Sixth Amendment's text was sufficient to keep the issue alive in state courts, notwithstanding the fact that his state court briefs predominately cited state court cases.

Respondent argues that the COA in this case does not mention the district court's failure-to-exhaust determination, so this Court lacks jurisdiction to consider the issue. It would follow that because the district court's exhaustion determination is not properly before us, we cannot reach the merits of Petitioner's claim. Respondent's contention is devoid of merit. Petitioner unambiguously sought a COA with respect to the district court's determination that Petitioner failed to exhaust his state remedies. The district court's order granting a COA does not discuss the exhaustion claim. This omission must have been a mere oversight on the district court's part. Indeed, it would be irrational for a district court to grant a COA with respect to the merits of Petitioner's claims when the appeals court could not even consider those claims because they were not exhausted below. Absent an explicit statement by the district court, in cases where a district court grants a COA with respect to the merits of a constitutional claim but the COA is silent with respect to procedural claims that must be resolved if the panel is to reach the merits, we will assume that the COA also encompasses any procedural claims that must be addressed on appeal. Accordingly, we construe the district court's order as granting a COA with respect to both the court's procedural and substantive rulings on the Sixth Amendment claim. Cf. Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) ("A merits panel may therefore expand the issues for review to include issues that the motions panel specifically rejected."), cert. denied sub nom., Hiivala v. Lambert, 120 S. Ct. 1281 (2000).

Petitioner is also correct that courts of appeals that have considered the issue have granted COAs to habeas petitioners whose petitions were denied on procedural grounds. Confronted with similar circumstances, the First Circuit quite sensibly noted, "[w]hile the procedural issues in question are not constitutional, this court has power to consider such preliminary procedural rulings where they are predicates to consideration of a constitutional issue." Gaskins v. Duval, 183 F.3d 8, 9 n.1. (1st Cir. 1999). Tellingly, Respondent's contention that "exhaustion is not an issue that can be appealed in a habeas case" is not followed by any case citations. Petitioner's contrary argument is directly supported by the holding of a recent Supreme Court case. See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000) ("According to the State, only constitutional rulings may be appealed. Under this view, a state prisoner who can demonstrate he was convicted in violation of the Constitution and who can demonstrate that the district court was wrong to dismiss the petition on procedural grounds would be denied relief. We reject this interpretation. . . . In setting forth the preconditions for issuance of a COA under 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal."); see also James v. Giles , 221 F.3d 1074, 1076 (9th Cir. 2000) (relying on Slack to reject an identical argument). Under Slack, we have no doubt that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," so the procedural test for the granting of a COA was certainly met in this case. Id. at 1604. The district court's determination with respect to exhaustion was erroneous, and that determination is properly before this Court.

IV.

Petition...