Phillips v. Vasquez

• Citation: 56 F.3d 1030
• Decision Date: 26 May 1995
• Docket Number: No. 92-15828,92-15828
• Parties: Richard Louis Arnold PHILLIPS, Petitioner-Appellant, v. Daniel B. VASQUEZ, Warden, San Quentin State Prison, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1030

56 F.3d 1030

Richard Louis Arnold PHILLIPS, Petitioner-Appellant, v. Daniel B. VASQUEZ, Warden, San Quentin State Prison Respondent-Appellee.

No. 92-15828.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 11, 1994.

Decided May 26, 1995.

Donald Horvath, Fresno, CA, for petitioner-appellant.

Edmund D. McMurray, Deputy Atty. Gen., Sacramento, CA, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before FLETCHER, REINHARDT, KLEINFELD, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge KLEINFELD.

REINHARDT, Circuit Judge:

It has been almost fifteen years since Richard Louis Arnold Phillips was convicted of murder and first sentenced to death, and ten years since the state supreme court affirmed his conviction and vacated his sentence. The question before us is whether we should now review the constitutionality of Phillips' conviction or require him to continue to wait until the state has rendered a final decision regarding his sentence before allowing him to petition for habeas review of the conviction.

BACKGROUND

In 1980, Phillips was convicted of first degree murder with special circumstance, attempted murder, and robbery; he was subsequently sentenced to death. The State of California has bifurcated the process for adjudicating guilt and imposing a death sentence; thus, the death sentence is imposed through an entirely separate trial. In 1985, the Supreme Court of California affirmed Phillips' conviction but reversed his death sentence. People v. Phillips, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423 (1985). Phillips was not resentenced to death until 1992; the automatic appeal from that sentence has been pending before the state supreme court since early 1993. Thus, Phillips' conviction has been final for approximately ten years while the validity of his death sentence remains unresolved.

Despite the significant delay that has already taken place, there is no indication that Phillips' appeal from his sentence will be decided anytime in the near future. To the contrary, due to significant problems involving inaccuracies in the sentencing trial transcript, it appears that the state supreme court may not decide the case for some time. Thus, there is no way to determine when Phillips' sentence will be final, even assuming that the state supreme court will affirm it. Of course, if that court again finds errors in the sentencing decision, Phillips may well be forced to wait another substantial period of time before any sentence becomes final under state law.

Phillips petitioned for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in 1992; his petition contained only claims arising from his conviction. The district court dismissed the habeas petition without prejudice on two grounds. First, it declined to interfere with the ongoing state criminal proceeding under the abstention doctrine first articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Second, because Phillips' sentencing appeal was still pending, it dismissed the petition on the ground that he had not exhausted available state remedies as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court subsequently declined to issue a certificate of probable cause when Phillips sought to appeal its decision to dismiss his petition.

We granted Phillips' request for a certificate of probable cause and instructed the parties to submit briefs regarding the exhaustion In light of the extraordinary delay, we hold that Phillips may bring his habeas petition regarding the constitutionality of his conviction despite the fact that the state has not yet made a final ruling on his sentence. We conclude that Phillips' right to reasonably prompt review of his conviction outweighs the jurisprudential concerns that might otherwise lead us to decline to review his petition. Neither Rose nor Younger prevents him from seeking and obtaining habeas review of his conviction.

and abstention issues. Accordingly, we may exercise jurisdiction over the district court's denial of Phillips' habeas claim under 28 U.S.C. Sec. 2253.

ANALYSIS

A. Finality of the Judgment

The state does not contest Phillips' argument that his state conviction is final. It argues that he is not yet subject to a final judgment, because his sentence is not yet final.

California procedure separates the determination of guilt from the determination of penalty especially sharply. California has bifurcated into "separate phases" what it calls the guilt phase and the penalty phase of death penalty cases. See Cal.Penal Code Sec. 190.1. It is undisputed that the guilt phase of this case is final. ¹ It has been affirmed by the California Supreme Court. No further review of the guilt phase in state court is available. Habeas corpus proceedings regarding the guilt phase will not affect the ongoing state proceedings.

B. The Requirements of Younger and Rose

Although the state makes no argument regarding the finality of the judgment under California law, it asserts that federal law--specifically the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and the exhaustion requirement of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)--precludes this court from considering Phillips' habeas petition until the state courts have reached a final determination concerning his sentence. We disagree.

First, on appeal Phillips does not seek to enjoin an ongoing state proceeding; instead, he seeks only to collaterally attack his conviction. The state has already adjudicated Phillips' guilt, its decision in that regard is final, and Phillips seeks nothing more than federal review of that decision. The ongoing state proceeding involves sentencing only, and the state is free to continue with its sentencing determination. The rule against staying a proceeding does not prevent us from deciding a related issue, even if that decision ultimately renders the state proceeding moot. Thus, the Supreme Court's holding in Younger that federal courts must exercise significant caution in enjoining ongoing state criminal proceedings is inapplicable to the case before us. Accordingly, we hold that the abstention doctrine does not prevent us from reviewing Phillips' petition. ²

Second, we conclude that the district court erred in dismissing Phillips' habeas petition for failure to exhaust state remedies under Rose. In Rose, the Supreme Court held that a petition containing both exhausted and unexhausted claims must be dismissed. The plurality opinion noted, however, that prisoners who submit mixed petitions "nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of the claims." Rose, 455 U.S. at 520, 102 S.Ct. at 1204. ³

The plurality thus makes clear that a defendant may choose to submit a petition containing only exhausted claims, even when his remaining claims are unexhausted, without

                violating the principle articulated in Rose.   Indeed, a number of appellate courts, including this one, have held that Rose does not require dismissal when the petition before the court contains only exhausted claims.  See, e.g., Powell v. Spalding, 679 F.2d 163, 166 (9th Cir.1982) (holding that courts may properly review a habeas "petition containing only exhausted issues");  see also Peoples v. Fulcomer, 882 F.2d 828, 832 (3d Cir.1989);  Williams v. Maggio, 727 F.2d 1387, 1389 (5th Cir.1984);  Taylor v. Curry, 708 F.2d 886, 889 (2d Cir.1983), cert. denied, 464 U.S. 1000, 104 S.Ct. 503, 78 L.Ed.2d 694 (1983).  Thus, because Phillips sought only to attack his conviction and did not (and could not) seek federal review of claims arising from his sentence, the district court erred in dismissing the petition for failure to exhaust state remedies regarding his sentence. 4
                

C. Jurisprudential Concerns

We recognize, of course, that a decision to allow Phillips to pursue his habeas petition before the state renders a final decision regarding his sentence implicates many of the prudential concerns outlined in Rose, particularly those concerning the dangers of piecemeal litigation. However, we believe that in this case Phillips' right to reasonably prompt constitutional scrutiny of his conviction outweighs any prudential concerns that might exist.

We have consistently recognized that unusual delay in the state courts may justify a decision to protect a prisoner's right to a fair and prompt resolution of his constitutional claims despite the jurisprudential concerns that have led us to decline to review a claim or to require full exhaustion in other cases in which a proceeding related to the federal petition is pending in state court. For example, in Coe v. Thurman, 922 F.2d 528 (9th Cir.1991), we held that a prisoner who brings a due process claim arising from delay in the state appellate process is not required to exhaust state remedies in order to obtain federal review of his claim. Indeed, we noted that extraordinary delay in the state courts can render state corrective processes "ineffective" within the meaning of section 2254(b) and that exhaustion is not required in such cases. Coe, 922 F.2d at 530. Similarly, in Okot v. Callahan, 788 F.2d 631, 633 (9th Cir.1986), we noted that when a prisoner "receives ineffective relief in state court because of unreasonable delay, he may file a habeas proceeding in federal court. In such cases, federal habeas relief may well be available despite failure to exhaust state remedies." Okot, 788 F.2d at 633; see also Story v. Kindt, 26 F.3d 402, 405 (3d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 593, 130 L.Ed.2d 506 (1994); Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987).

1. The Significance of Extraordinary Delay in the State Courts

In the case before us, almost fifteen years have passed since the date of...