Rose v. Guyer

• Decision Date: 18 June 2020
• Docket Number: No. 18-35630,18-35630
• Citation: 961 F.3d 1238
• Parties: Robert L. ROSE, Petitioner-Appellant, v. Lynn GUYER; Attorney General for the State of Montana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

961 F.3d 1238

Robert L. ROSE, Petitioner-Appellant,

v.Lynn GUYER; Attorney General for the State of Montana, Respondents-Appellees.

No. 18-35630

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2020 Seattle, Washington

Filed June 18, 2020

David F. Ness (argued), Assistant Federal Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Great Falls, Montana; for Petitioner-Appellant.

Tammy K. Plubell (argued), Assistant Attorney General; Timothy C. Fox, Attorney General; Attorney General's Office, Helena, Montana; for Respondents-Appellees.

Before: Milan D. Smith, Jr., N. Randy Smith, and Daniel A. Bress, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

Pursuant to 28 U.S.C. § 2253(c)(1)(A), a habeas petitioner must obtain a certificate of appealability ("COA") in order to appeal a district court's order denying a motion to enforce a conditional writ of habeas corpus, brought under Federal Rule of Civil Procedure 70(a). Such an order does pertain to the district court's adjudication of the habeas petition, thus requiring a COA. See United States v. Winkles , 795 F.3d 1134, 1142 (9th Cir. 2015) ; see also Payton v. Davis , 906 F.3d 812, 821 (9th Cir. 2018). Petitioner-Appellant Robert L. Rose ("Rose") appeals from the denial of his Rule 70(a) motion to enforce a conditional writ of habeas corpus. Upon application, the district court denied Rose a COA. Because he now fails to make the requisite showing under § 2253(c)(2) to permit us to issue a COA, we deny him a COA and dismiss his appeal for lack of jurisdiction.

I

After Rose kidnapped and severely cut his co-worker with a knife and sprayed a law enforcement officer with a can of pepper spray, Rose was charged with aggravated kidnapping, assault with a weapon, and assault on a peace officer. More than a year later, with Rose's trial date approaching, the county attorney of Ravalli County (the "State") sent Rose's defense attorney a letter proposing the general terms of a plea agreement. The letter stated:

In an effort to settle this case, I am willing to offer a plea agreement along the following lines:

I will dismiss the Aggravated Kidnapping charge and the felony Assault on a Judicial Officer if your client pleads "open" to Assault with a Weapon and a misdemeanor Assault which would run consecutively to the Assault with a Weapon.

Additionally, I would agree to cap the Persistent Felony Offender at 10 years with 5 suspended. This would run consecutive to the Assault with a Weapon. I would file an Amended Information with the above charges.

Each party is free to argue for what it deems is an appropriate sentence as to length and [Department of Corrections] versus [Montana State Prison].

Under this proposed plea, I have no objection to a "no contest" plea.

....

All other terms and conditions, including the length of parole or probation, would be subject to argument by both sides with the final decision being made by the Court.

Upon receipt of the letter, Rose's attorney determined that the plea proposal contained an illegal provision under Montana law—Rose's attorney believed that the State could not charge or sentence Rose separately for his status as a persistent felony offender ("PFO"). Based on that belief, and before apprising Rose of the plea proposal, Rose's attorney attempted to negotiate what he believed to be a valid plea proposal with the State the following day. But instead of negotiating, the State withdrew the offer and expressed its intention to go to trial.

After a four-day jury trial, Rose was convicted of all three counts and sentenced to 100 years in state prison with 20 years suspended. Rose's convictions and sentence were affirmed on direct appeal to the Montana Supreme Court. See State v. Rose , 348 Mont. 291, 202 P.3d 749, 768 (2009). He was also denied post-conviction relief in the state courts. See Rose v. State , 370 Mont. 398, 304 P.3d 387, 395 (2013).

Following the state-court post-conviction proceedings, Rose filed a habeas petition under 28 U.S.C. § 2254 in federal district court. He alleged a panoply of claims,¹ including a claim for ineffective assistance of counsel based upon his trial attorney's alleged failure to inform him of the State's plea proposal. On this claim, the district court granted Rose a conditional writ of habeas corpus ("Conditional Writ"), which ordered:

On or before June 30, 2016, the State is required to reoffer the equivalent terms of the plea agreement proposed on May 21, 2003. The state trial court can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed. ... If the State does not meet the deadline for reoffering the plea agreement, Rose shall be immediately released from custody.

Rose appealed that order from the district court, challenging the adequacy of the remedy. See Rose v. Kirkegard , 720 F. App'x 406, 406 (9th Cir. 2018) (unpublished). We affirmed the district court, finding that it "ordered the remedy articulated by the Supreme Court for circumstances where ‘inadequate assistance of counsel causes nonacceptance of a plea offer and further proceedings lead to a less favorable outcome.’ " Id. (alterations adopted) (quoting Lafler v. Cooper , 566 U.S. 156, 160, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ).

Pursuant to the district court's Conditional Writ, the State sent Rose's new, federally appointed attorney a letter that reproposed the general terms of a plea agreement. The letter stated:

[I]n compliance with [the Conditional Writ] the State will agree to the following terms, equivalent to [the] May 21, 2003 offer:

1. The State will move to dismiss the charges of Aggravated Kidnapping and Assault on a Judicial/Peace Officer;

2. Mr. Rose will plead guilty or no contest to the charges of Assault with a Weapon and misdemeanor Assault;

3. The State will recommend a sentence of;

a. Assault with a Weapon: thirty (30) years, as a persistent felony offender, with five (5) years suspended; and

b. Assault (misdemeanor): six (6) months jail time, consecutive to the sentence on the assault with a weapon;

4. Mr. Rose will be free to recommend any lawful sentence.

....

If [Rose] does accept this offer, I will formalize it in a standard plea agreement format used in Ravalli County for execution by all of us.

Rose accepted the State's plea proposal upon receipt. Thereafter, the State prepared a final plea agreement, which Rose and his attorney signed.

However, when the State and Rose presented the final plea agreement to the state trial court at the change of plea hearing, the court rejected it. The court stated it was rejecting the agreement because of Rose's "complete unwillingness to accept any responsibility for his actions at the time the [original plea proposal] was initially offered." As a result, Rose's convictions and sentence were left undisturbed. The state trial court's rejection of the final plea agreement was affirmed on appeal to the Montana Supreme Court. See State v. Rose , 389 Mont. 374, 406 P.3d 443, 448 (2017).

After the state trial court rejected the final plea agreement and the Montana Supreme Court affirmed the rejection, Rose returned to federal district court to file a Federal Rule of Civil Procedure 70(a) motion to enforce the Conditional Writ. See Fed. R. Civ. P. 70(a) ("If a judgment requires a party ... to perform [a] specific act and the party fails to comply within the time specified, the court may order the act to be done ... by another person appointed by the court. When done, the act has the same effect as if done by the party."). For the first time, Rose argued that, because the State did not reoffer him an equivalent plea proposal, the State's failure to comply with the Conditional Writ entitled him to immediate release from an unconstitutional detention.

The federal district court denied the motion without a hearing. In deciding that the State had "timely and faithfully executed" the Conditional Writ, the court rejected the suggestion that Rose was not offered an equivalent plea proposal because of two discrepancies between the original and reoffered plea proposals. First, the court determined that the original plea proposal was "illegal in form because it called for separate sentences for Assault with a Weapon and for Rose's designation as a [PFO]." The court explained that, "[u]nder Montana law, sentences imposed based upon an offender's [PFO status] replace the sentence for the underlying felony." Therefore, the court found that the State could not have lawfully reoffered this exact term in 2016. Second, the court determined that, although the reoffered plea proposal contained a specific sentencing recommendation (whereas the original plea proposal left the State largely free to recommend a sentence it deemed appropriate), it was "entirely possible" for the State "to recommend the same aggregate sentence" under both proposals. Furthermore, the court noted that both proposals anticipated that additional terms would be incorporated into a final plea agreement if Rose accepted the offer. Finding that the original and reoffered plea proposals were equivalent, the court concluded that Rose was not entitled to relief under Rule 70(a).²

Rose then filed an application with the district court for a COA to appeal the denial of his Rule 70(a) motion. The district court denied Rose's COA application, but noted that it was "not aware of any authority requiring a [COA] to issue from an order denying a motion under Rule 70." The court also ordered that Rose's application for a COA be treated as a timely notice of appeal.

Because Rose did not obtain a COA from the district court, a motions panel of this Court considered whether to issue Rose a COA. Finding it "an open question as to whether a [COA] is required to appeal from the denial of a Rule 70 motion," the motions panel referred Rose's appeal to this panel "to determine whether a COA is required under 28 U.S.C. § 2253(c)(1)(A)...