Morris v. Woodford, 99-99028

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 229 F.3d 775
• Docket Number: No. 99-99028,99-99028
• Parties: (9th Cir. 2000) BRUCE WAYNE MORRIS, Petitioner-Appellant, v. JEANNE WOODFORD, Acting Warden of California State Prison at San Quentin, Respondent-Appellee
• Decision Date: 05 October 2000

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229 F.3d 775 (9th Cir. 2000) BRUCE WAYNE MORRIS, Petitioner-Appellant,
v.
JEANNE WOODFORD, Acting Warden of California State Prison at San Quentin, Respondent-Appellee. No. 99-99028 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted July 10, 2000
Submission Deferred July 12, 2000
Resubmitted August 15, 2000
Filed October 5, 2000

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Copyrighted Material Omitted

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Marianne D. Bachers, San Francisco, California, and Tony Tamburello, Tamburello, Hanlon & Waggener, San Francisco, California, for the petitioner-appellant.

Ward A. Campbell and Susan Rankin Bunting, Deputy Attorneys General, Sacramento, California, for the respondentappellee.

Michael Pescetta, Assistant Federal Public Defender, Las Vegas, Nevada, for the amicus curiae.

Appeal from the United States District Court for the Eastern District of California. Edward J. Garcia, District Judge, Presiding. D.C. No. CV-92-00483-EJG-GGH

Before: Warren J. Ferguson, Susan P. Graber, and William A. Fletcher, Circuit Judges.

GRABER, Circuit Judge:

Petitioner Bruce Wayne Morris was sentenced to death in California for the 1985 murder of Rickey Van Zandt. He appeals the district court's denial, on summary judgment, of his petition for a writ of habeas corpus under 28 U.S.C. 2254.

EARLIER PROCEEDINGS

At the close of the guilt phase of the trial, on June 22, 1987, the jury found Petitioner guilty of first-degree murder and robbery and further found the special circumstance that Petitioner had committed the murder during the commission of the robbery.

The trial moved to a penalty phase. Evidence was introduced in mitigation and aggravation. At the close of the evidence, the jury retired to deliberate. After requesting that the district court clarify a jury instruction, the jury sentenced Petitioner to death.

Petitioner appealed. While his appeal was pending in state court, he filed his first state petition for a writ of habeas corpus in the California Supreme Court. That petition was denied on September 7, 1990.

On March 28, 1991, a divided California Supreme Court affirmed Petitioner's conviction

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and sentence of death on direct appeal. See People v. Morris, 807 P.2d 949 (Cal.), cert. denied, 502 U.S. 959 (1991).

On March 27, 1992, Petitioner filed an application for stay of execution and a request for appointment of counsel in federal court. Counsel was appointed in August 1992. On June 15, 1993, Petitioner filed a petition for habeas corpus in federal district court. The state moved to dismiss for failure to exhaust state remedies. On December 6, 1993, the district court granted in part the motion to dismiss and issued an order staying the case to allow Petitioner to exhaust state remedies.

On December 1, 1995, Petitioner filed a second petition for habeas corpus in state court. The California Supreme Court denied the petition in a one-page order filed on December 6, 1995. In that order, the court concluded that the petition was "untimely" under In re Clark, 855 P.2d 729, 737-40 (Cal. 1993). The court also denied the petition "on the merits," but without elaboration.

Petitioner returned to federal court and, on January 17, 1996, filed his first amended petition for habeas corpus. That petition is the subject of this appeal.

On May 15, 1996, the state moved for summary judgment. In its motion, the state argued (among other things) that all the claims that Petitioner had raised in his second state-court petition for habeas corpus were procedurally barred in federal court as a result of the denial of the state petition on procedural grounds. The state also argued that several other of Petitioner's claims were procedurally barred because Petitioner had waived them or had failed to exhaust state remedies. The magistrate judge agreed and, on May 27, 1997, recommended that all or part of 13 of Petitioner's claims be denied on procedural grounds. The district court adopted the magistrate judge's recommendation.

The magistrate judge then addressed the remainder of Petitioner's claims on the merits. On March 3, 1998, the magistrate judge issued Findings and Recommendations on claims 36 and 40 of Petitioner's petition. Those claims address an error in a printed instruction that was given to the jury during the penalty phase. The magistrate judge recommended that those claims be granted and that Petitioner receive a new penalty-phase trial.

On August 4, 1998, the magistrate judge issued Findings and Recommendations on Petitioner's remaining claims. The magistrate judge recommended that those claims be denied.

On June 3, 1999, the district court issued an order granting the state's motion for summary judgment as to all of Petitioner's claims. The district court rejected the magistrate judge's recommendation as to claims 36 and 40, concluding that the error in the jury instruction, if any, was harmless. The court adopted without discussion the magistrate judge's recommendation that the remaining claims be denied.

Petitioner then filed a request for a Certificate of Probable Cause (CPC), which the district court granted. This timely appeal followed.

STANDARD OF REVIEW

This court reviews de novo a district court's decision to deny a petition under 28 U.S.C. 2254. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam). Because Petitioner filed his petition before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the provisions of that Act do not apply to the merits of this appeal. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). However, AEDPA's procedural requirements do apply, because Petitioner filed his notice of appeal after the statute's effective date. See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000).

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DISCUSSION

I. Petitioner's Certificate of Probable Cause

Before Congress enacted AEDPA, a party who wished to appeal a district court's denial of a petition for habeas corpus was required to obtain a CPC, as Petitioner did in this case. To obtain a CPC, a petitioner was required to make a "substantial showing of the denial of [a] federal right." Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (citation and internal quotation marks omitted). If a petitioner made such a showing as to any issue in his petition, then all the issues in the petition could be appealed. See Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir. 1994).

Congress changed that requirement with the passage of AEDPA, substituting the certificate of appealability (COA) for the CPC. Unlike a CPC, which allows a party to appeal an entire petition, a COA is granted on an issue-by-issue basis. A petitioner specifically must request a COA as to each issue that he or she wishes to appeal, and a court may not consider on appeal any issue not specified in a COA. See 28 U.S.C. 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999).

Before Slack v. McDaniel, the rule in this circuit was that the new requirement of a COA did not apply in cases that were filed in the district court before the effective date of AEDPA. See, e.g., Fuller v. Roe, 182 F.3d 699, 702-03 (9th Cir. 1999) (as amended). Thus, a petitioner who filed a petition for habeas corpus before AEDPA was required in this circuit to obtain a CPC, not a COA, even...