Phelps v. Alameda

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: O'Scannlain
• Citation: Phelps v. Alameda, 366 F.3d 722 (9th Cir. 2004)
• Decision Date: 20 April 2004
• Docket Number: No. 02-15821.,02-15821.
• Parties: Kevin PHELPS, Petitioner-Appellant, v. Edward ALAMEDA, Warden, Duel Vocational Institution, Tracy, California; People of the State of California ex rel. Bill Lockyer, Respondents-Appellees.

366 F.3d 722

Kevin PHELPS, Petitioner-Appellant, v. Edward ALAMEDA, Warden, Duel Vocational Institution, Tracy, California; People of the State of California ex rel. Bill Lockyer, Respondents-Appellees.

No. 02-15821.

United States Court of Appeals, Ninth Circuit.

Submitted August 12, 2003.^*

Filed April 20, 2004.

COPYRIGHT MATERIAL OMITTED

Robert J. Beles, Oakland, California, for the appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, and Juliet B. Haley, Deputy Attorney General, for the appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding.

Before: HALL, O'SCANNLAIN, and LEAVY, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether we should vacate, as improvidently granted, a Certificate of Appealability issued by a motions panel pursuant to the Antiterrorism and Effective Death Penalty Act.

I

Kevin Phelps was convicted of first degree murder in a California state court in 1995 and has exhausted all relevant state remedies. On May 15, 1998, he filed a habeas corpus petition in the Northern District of California one year and fifteen days after the California Supreme Court declined to review a previous denial of state habeas corpus relief. The district court denied the petition based upon its having been lodged more than a year after his state post-conviction relief process ended.¹ See 28 U.S.C. § 2244(d). On appeal, we affirmed in an unpublished disposition. See Phelps v. Alameda, No. 99-15495, 2000 WL 329180 (9th Cir. Mar. 29, 2000).

Two years later, Phelps filed a motion under Federal Rule of Civil Procedure 60(b)(5) with the same district court, seeking reconsideration of the earlier denial of his petition for writ of habeas corpus. He argued that Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001), among other cases, effected an intervening change in the law suggesting that his initial petition had indeed been timely. See Fed.R.Civ.P. 60(b)(5) (allowing a district court to revise an order if "a prior judgment upon which it is based has been reversed or otherwise vacated").

The district court squarely rejected Phelps's motion on the merits:²

Assuming, arguendo, that the subsequent cases upon which petitioner relies have changed the applicable law,[] the Ninth Circuit has held that "a change in the applicable law after a judgment has become final in all respects is not a sufficient basis for vacating a judgment" under Rule 60(b)(5). See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir.1989).... Consequently, petitioner is not entitled to relief under Rule 60(b)(5).

The court added, however, that "the Ninth Circuit has held that where a habeas corpus petitioner files a motion for relief from a final judgment under Rule 60(b), based on a subsequent change in law, the motion should be construed as a successive application for a writ of habeas corpus." Consequently, the district court ruled, in the alternative, that it "lack[ed] subject matter jurisdiction to determine whether the change in the law would entitle petitioner to relief."³

Phelps thereupon filed an application for a Certificate of Appealability ("COA"), which the district court denied, reciting that there was no "substantial showing of the denial of a constitutional right." See § 2253(c). Phelps timely appealed and applied for a COA from us under Federal Rule of Appellate Procedure 22(b). A motions panel granted a COA, but specifically styled the issue as "whether the district court erred in construing petitioner's motion to reinstate his 28 U.S.C. § 2254 petition pursuant to Fed. R. Civ. P[]. 60(b)(5) as a successive application under 28 U.S.C. § 2244(b)." Phelps v. Alameda, No. 02-15821 (9th Cir. Dec. 2, 2002) (order granting partial COA).

II

As a threshold matter, we must confess that we have some doubt as to our jurisdiction over this appeal. See infra Part III. But to what extent, as a merits panel, are we bound by the operative COA, and are we compelled to decide the issue presented by it?

In federal habeas corpus proceedings, of course, the exercise of appellate jurisdiction is dependent entirely upon the issuance of a COA. 28 U.S.C. § 2253(c); Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir.2003). The circuits, however, are split on the question of whether the COA need be examined in every case. Compare United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (stating that "we must reject the analysis of our sister circuits" because "[t]he issuance of the certificate in the case before us is not merely an exercise of judicial gate-keeping, but rather, in the language of the [Supreme] Court, is `the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals'" (quoting Hohn v. United States, 524 U.S. 236, 246, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) in turn quoting Ex parte Quirin, 317 U.S. 1, 24, 63 S.Ct. 2, 87 L.Ed. 3 (1942))), with Soto v. United States, 185 F.3d 48, 52 (2d Cir.1999) ("[A] certificate of appealability that does not meet the denial of a constitutional right requirement — and hence, is erroneously issued — nevertheless suffices to confer appellate jurisdiction."), United States v. Talk, 158 F.3d 1064, 1068 (10th Cir.1998) ("[A]lthough the absence of a certificate precludes an appeal, an erroneously-issued certificate does not deprive us of jurisdiction to hear a certified appeal."), and Young v. United States, 124 F.3d 794, 799 (7th Cir.1997) ("The absence of a certificate of appealability precludes an appeal; should an erroneously issued certificate be treated the same as the lack of a certificate? We think not."); cf. Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (ruling on the merits of a claim for collateral relief even though the government pointed out in its brief that the COA may have been improperly granted).

We follow the majority view that merits panels are not required to examine allegedly defective COAs in the face of jurisdictional challenges. While "the issuance of a certificate of appealability is a prerequisite to our assertion of jurisdiction, once that certificate is issued, we have jurisdiction even if the certificate was arguably `improvidently granted.'" James v. Giles, 221 F.3d 1074, 1076 (9th Cir.2000); see also Gatlin v. Madding, 189 F.3d 882, 887 (9th Cir.1999) (holding that once a COA "has been issued without objection by this court, the procedural threshold for appellate jurisdiction has been passed and we need not revisit the validity of the certificate in order to reach the merits").

However, we do not appear directly to have decided the related question of whether a panel has the power to address the propriety of a COA of its own accord. Our fellow circuits appear to be split on this particular question as well: Compare LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999) (comparing COAs to the old Certificates of Probable Cause in holding that once "the district court has made appealable all the issues in this case by its blanket order, we must review the merits of each claim"), with Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir.2002) (holding that "circumscribing, and even revoking, a certificate, especially one we have issued, is ... well within our authority"), and United States v. Marcello, 212 F.3d 1005, 1007-08 (7th Cir.2000) (holding that "the best approach is to say we have discretion to decide the case by reviewing the validity of the C[O]A").⁴

Section 2253(c) specifies only three things about COAs: that they must issue before an appeal may be taken, § 2253(c)(1), that they may be granted only upon "a substantial showing of the denial of a constitutional right," § 2253(c)(2), and that they must specify the issues to be considered on appeal, § 2253(c)(3). Unfortunately, then, § 2253(c) itself provides no insight into the question of whether and to what extent we may review a previously issued COA.

Our own relevant precedent, however, provides key insight into this question. When first confronted with the reviewability of COAs in Gatlin, we took a narrow approach, declining to address the propriety of a COA upon the motion of a party because there had been no challenge to it within the appropriate 35 day window as set forth by our Circuit Rule 22-1(c). See Gatlin, 189 F.3d at 887 ("Given a ready procedure for response by the state to requests for COAs in this court, it would be counter-productive to require merits panels to reconsider every one that is issued.").

But at the time the COA had been issued in the James case, our circuit rules had not yet provided for this 35 day opportunity to challenge a COA. See James, 221 F.3d at 1077 ("The State here argues that, because James' motion in this court for a certificate of appealability was made prior to the adoption of 9th Cir. R. 22-1(c), the State cannot be bound by a failure to file a response."). As a result, our merits panel proceeded to consider whether the COA properly was issued by the district court. See id. at 1077-79 (upholding issuance of the COA). If the propriety of the COA were entirely unreviewable, such action presumably would not have been appropriate, regardless of whether Circuit Rule 22-1(c) was on the books.⁵ Thus, we are satisfied that COAs are not beyond merits panel scrutiny.

This conclusion is further supported by a closely analogous principle: We do have the power to expand the scope of a COA to include additional issues, even if they previously had been deemed inappropriate for review. See, e.g., Nardi v. Stewart, 354 F.3d 1134, 1136-40 (9th Cir.2004) (expanding a COA to include a claim that both the district court and a motions panel previously had declined to certify); Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir.2002) ("[A] court of...