Phelps v. Alameida

• Decision Date: 25 June 2009
• Docket Number: No. 07-15167.,07-15167.
• Citation: 569 F.3d 1120
• Parties: Kevin PHELPS, Petitioner-Appellant, v. Edward ALAMEIDA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

569 F.3d 1120

Kevin PHELPS, Petitioner-Appellant, v. Edward ALAMEIDA, Respondent-Appellee.

No. 07-15167.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2009.

Filed June 25, 2009.

[569 F.3d 1122]

Albert Joel Kutchins, Berkeley, CA, for the petitioner-appellant.

Juliet B. Haley, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-98-02002-MMC.

Before: MYRON H. BRIGHT,^* STEPHEN REINHARDT and A. WALLACE TASHIMA, Circuit Judges.

REINHARDT, Circuit Judge:

For over eleven years, Kevin Phelps has sought to present his petition for habeas corpus to a federal judge. For over eleven years, he has been unsuccessful. Given the trend these last decades on the part of Congress and the Supreme Court "increasingly to bar the federal courthouse door to litigants with substantial federal claims,"¹ habeas petitioners—including petitioners who may have suffered severe deprivations of their constitutional rights—now face myriad procedural hurdles specifically designed to restrict their access to the once-Great Writ. In this modern era, which prizes "efficiency," "parity," and "judicial economy" often at the expense of justice and liberty, it is not at all unusual for an individual who fails to satisfy one of those many procedural hurdles to toil on for years in hopeless pursuit of an opportunity to be heard on the merits of his claim—an opportunity that he will never receive. It is, however, very unusual for an individual who meticulously has overcome each of those procedural hurdles to sit in prison for more than a decade nonetheless, without ever being heard on the substance of his petition. That, however, is exactly what has happened to Kevin Phelps.

At each stage in Phelps' struggle over the past eleven years to have his federal habeas petition evaluated on the merits, he has put forward sound legal arguments, at times doing so pro se, for why his petition was timely filed. In fact, his arguments have been much more than sound—they have been undeniably correct under currently governing law. Phelps' one and only fault throughout this protracted process, if it can be described as a "fault" at all, is that his arguments have been overly prescient: On multiple occasions, the legal arguments that Phelps put forward for why his petition was properly filed were rejected by the judges before whom he appeared, only to be fully embraced within a matter of months by judges authoring a more authoritative, controlling opinion in a different case. The positions Phelps advanced were not, at the time they were made, foreclosed by then-governing precedents; to the contrary, when Phelps presented his arguments the law was simply unsettled with respect to the procedural hurdles standing in his way. However, the law did not remain unsettled for long: on multiple occasions, shortly after Phelps advanced the precise interpretation of the law that would soon be adopted, his position was vindicated in a case other than his own. On each occasion, the argument Phelps advanced was adopted as the governing legal rule mere months after a directly contrary, but nonprecedential, ruling was entered against him.

In short, entirely as a result of misfortune, Phelps sits today in prison without a single federal judge ever having evaluated the substance of his petition for habeas corpus, a petition that indisputably satisfies the strict procedural requirements set forth in the Anti-Terrorism and Effective Death Penalty Act. Even under the severely diminished habeas corpus protection available under that Act, a properly filed habeas petition should not be dismissed on the basis of sheer happenstance or of random bad luck. "The writ of habeas corpus plays a vital role in protecting constitutional rights," AEDPA notwithstanding.² In enacting the habeas statute, many years prior to the adoption of AEDPA, "Congress sought to `interpose the federal courts between the States and the people, as guardians of the people's federal rights—to protect the people from unconstitutional action.'"³ As the Supreme Court warned, "[d]ismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty."⁴ That was true in 1996, when AEDPA was enacted, and it is true today. In fact, it is frequently also true with respect to the dismissal of a second or subsequent habeas petition when reaching the merits would allow the courts to remedy a serious injustice.

When a dismissal of a habeas petition rests upon an answer to an open legal question that is promptly rejected and then replaced in a more authoritative opinion by the very answer proposed by a diligent but unsuccessful petitioner, the petitioner is entitled to seek reconsideration of the dismissal entered against him. In weighing such a request for reconsideration, a district court must evaluate the specific circumstances of the case at hand and should be guided by a number of factors discussed later in this opinion; the court should not treat the motion for reconsideration as per se non-cognizable. Ultimately, in evaluating the motion, the district court's overriding concern should be "the incessant command of the court's conscience that justice be done in light of all the facts."⁵ Here, because the district court incorrectly applied a per se rule to reject Phelps' motion for reconsideration rather than evaluating the specific circumstances of Phelps' case, and because we conclude that the extraordinary circumstances of this case merit relief under Fed. R.Civ.P. 60(b)(6), we reverse the denial of Phelps' motion for reconsideration and remand for an evaluation of the merits of his habeas petition.

I.

Phelps' prolonged journey through the state and federal post-conviction processes has involved numerous twists and turns. Because this case turns largely on the details of his efforts over the past decade to have the substance of his federal petition for habeas corpus reviewed by a federal judge, we recount in full the procedural history that has brought him, and us, to this point.

Phelps was prosecuted for the same murder three separate times in the California state courts. His first two trials resulted in hung juries. In the third trial, which concluded on November 17, 1994, Phelps was convicted. He was sentenced to a term of thirty-years to life in prison.

Following his conviction, Phelps simultaneously filed an appeal and a petition for a writ of habeas corpus in the California Court of Appeal.⁶ The court denied his appeal on October 28, 1996 and denied his habeas petition on February 6, 1997. Phelps then petitioned the California Supreme Court for review of both denials. The Supreme Court denied the petition for review of his direct appeal on January 15 1997, stating "Appellant's petition for review DENIED." People v. Phelps, No. S049538, 1997 Cal. LEXIS 63 (Cal. Jan. 15, 1997). With respect to his habeas petition, the court denied the petition for review on April 30, 1997, stating "Petition for review denied on the merits." In re Phelps, No. S059148, 1997 Cal. LEXIS 2441 (Cal. April 30, 1997).

On May 15, 1998, one year and fifteen days after the petition for review of the habeas petition was denied on the merits, Phelps filed a petition for a federal writ of habeas corpus in the Northern District of California. In that petition, he asserted that his constitutional rights were violated because exculpatory evidence discovered after his trial entitled him to a new trial and because his trial lawyer had provided ineffective assistance of counsel. The State responded by filing a motion to dismiss the petition on the ground that it was untimely under AEDPA, 28 U.S.C. § 2244(d), which imposes a one-year statute of limitations on federal habeas petitions. That one-year period begins to run when the petitioner completes the state appellate process, but excludes any time during which he has a pending petition for collateral review before the state courts. Because Phelps' state habeas petition was still pending before the California Supreme Court at the time his direct appeal became final, the AEDPA statute of limitations did not start to run until that court's review of his state habeas petition became final. See 28 U.S.C. § 2244(d)(2). The date on which that occurred was a central dispute before the district court.

As noted above, on April 30, 1997, the California Supreme Court denied review of Phelps' appeal from the Court of Appeal's denial of his state habeas petition. Under the California Rules of Court then in effect, "A decision of the Supreme Court becomes final thirty days after filing.... An order of the Supreme Court denying a petition for review of a decision of a Court of Appeal becomes final when it is filed." Cal. R. Ct. 24(a) (repealed Jan. 1, 2002) (emphases added).⁷ Thus, if the denial of Phelps' petition for review was a "decision," it did not become final until May 30, 1997, thirty days after its filing date, and his federal habeas petition filed on May 15, 1998 was filed with fifteen days to spare. However, if the Supreme Court's denial was an "order ... denying a petition for review," then it became final when filed on April 30, 1997, and Phelps' federal habeas petition was fifteen days late.

Phelps argued to the district court that the California Supreme Court's summary denial of his petition for review was a decision because, in the Supreme Court's own words, it was a denial "on the merits." By way of contrast, he pointed to the denial of the petition for review of his direct appeal, which simply stated "DENIED." The State countered that, under California habeas law, only those dispositions issued by the California Supreme Court following an order to...