Russell v. Rolfs, No. 88-3936

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore REINHARDT, KOZINSKI and TROTT; TROTT; KOZINSKI
Citation893 F.2d 1033
PartiesLouis Eugene RUSSELL, Petitioner-Appellant, v. Tom ROLFS, Superintendent, Respondent-Appellee.
Decision Date09 January 1990
Docket NumberNo. 88-3936

Page 1033

893 F.2d 1033
Louis Eugene RUSSELL, Petitioner-Appellant,
v.
Tom ROLFS, Superintendent, Respondent-Appellee.
No. 88-3936.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 6, 1989.
Decided Jan. 9, 1990.

John Midgley, Smith, Midgley & Pumplin, Seattle, Wash., for petitioner-appellant.

John M. Jones, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before REINHARDT, KOZINSKI and TROTT, Circuit Judges.

Page 1034

TROTT, Circuit Judge:

Louis Eugene Russell, a Washington state prisoner, appeals the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition. The district court found that the issues raised in the petition were waived by Russell due to a state procedural default. On appeal, Russell disputes this finding, arguing that the Washington Supreme Court reached the merits of his claim, and, in the alternative, that a procedural barrier should not deny him relief. Russell also contends that sufficient cause and prejudice exist to entitle him to a federal hearing on the merits, and he suggests that the state should be estopped from raising the issue of procedural bar to deny him relief. We have jurisdiction under 28 U.S.C. Sec. 1291, and we reverse.

I

The charges against Russell stemmed from a series of events which began when Russell was invited to the home of two strangers, Kenneth and Sherry Hanks. The evening ended with the death of Mr. Hanks, and with the severe stabbing and alleged rape of Mrs. Hanks.

Mrs. Hanks, the prosecution's main witness, testified that Russell killed her husband, raped her at knifepoint, and then stabbed her. Russell, testifying on his own behalf, related a different story. He alleged that Mr. Hanks invited him to a home to have intercourse with a "girl," who turned out to be Mrs. Hanks. Russell claimed that after he complied with the invitation, Mr. Hanks returned and became so enraged that he stabbed Mrs. Hanks and proceeded to attack Russell, who wrestled the knife away. Russell then testified that in self-defense he stabbed Mr. Hanks repeatedly, causing Mr. Hanks's death. Russell was apprehended while in flight from the victims' home.

The state charged Russell with first-degree murder, first-degree rape, and attempted rape. A jury acquitted him of the first-degree murder of Mr. Hanks. When the jury could not reach a verdict on the other two charges, a mistrial was declared. In a second trial, on amended charges, Russell was convicted by the jury of second-degree murder, first-degree attempted murder, and rape in the first degree. Consequently, Russell was sentenced to two concurrent maximum sentences of twenty years for attempted murder and rape while armed with a deadly weapon.

Russell appealed his conviction, raising issues regarding all three offenses. The Washington Court of Appeals affirmed his convictions. State v. Russell, 33 Wash.App. 579, 657 P.2d 338 (1983).

Russell then sought discretionary review of his second-degree murder conviction in the Washington Supreme Court. He raised only three of the seven issues argued before the court of appeals. Russell allegedly believed, however, that all the issues he argued before the Washington Court of Appeals were preserved for argument before the supreme court. After refusing to hear argument on issues not included in his petition, the court reversed the second-degree murder conviction and remanded for a new trial. His convictions of rape and attempted murder remained intact. State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984). The state did not seek a retrial on the second-degree murder charge.

Russell next filed a petition for writ of habeas corpus seeking federal review of his two remaining state convictions. Russell raised three grounds for relief: (1) denial of the presumption of innocence in violation of the Fifth and Fourteenth Amendments; (2) denial of due process in violation of the Fifth and Fourteenth Amendments based on alleged prosecutorial misconduct; and (3) denial of the right to confront and cross-examine witnesses in violation of the Sixth and Fourteenth Amendments. Although these claims were argued before the court of appeals, they had not been raised in the petition before the Washington Supreme Court. The United States District Court denied without prejudice Russell's petition for failure to exhaust state remedies, apparently relying on the state's argument for dismissal based on the existence of an "adequate and available " remedy in state court through Washington's personal restraint petition procedure.

Page 1035

Russell then attempted--as apparently invited--to raise these issues before the Washington Supreme Court, but the state now took the position that he had no remedy by way of such a petition. The supreme court transferred the case to the Washington Court of Appeals which found Russell procedurally barred at that level because the issues were the same ones raised in his direct appeal to that court. On this basis, the court of appeals denied his personal restraint petition.

Russell next filed for discretionary review before the Washington Supreme Court, which, after stating that the court of appeals had not erred in concluding that Russell was procedurally barred from relitigating the issues in that court, declined to exercise its own discretionary jurisdiction. 1 The court additionally stated that an "ends of justice" exception that might have given him relief from his default was not available because the court of appeals' treatment appeared to be fully consistent with applicable case law. 2

Russell then returned to federal court, raising in a second habeas corpus petition the same issues on which he had previously attempted to rely. The attorney general resisted his petition, arguing that Russell was procedurally barred from presenting his claim in federal court. A United States Magistrate decided that the Washington Supreme Court had reached the merits of Russell's claims; therefore, he was entitled to federal review on the merits. The district court disagreed, however, and dismissed the petition based on its interpretation of the final state court finding to the effect that Russell was procedurally barred from review. This appeal followed.

II

This court reviews a district court's denial of a petition for writ of habeas corpus de novo. Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988), --- U.S. ----, 109 S.Ct. 1319, 103 L.Ed.2d 587 (1989); Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988).

The district court determined there was no material fact in dispute as to whether Russell failed to comply with a reasonable state procedure and dismissed the petition. We disagree and conclude that under Washington law no procedural default occurred. In the alternative, we find the state is estopped from arguing Russell failed to exhaust his state remedies.

III

The first issue we address is whether the Washington Supreme Court, as the "last state court rendering a judgment in the case," "clearly and expressly" relied on procedural default to deny Russell relief. Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted). We find that it did not. The court's denial, as reflected in its commissioner's report dated July 24, 1987 and in the court's subsequent refusal to modify that report on October 6, 1987, was actually based on two distinct grounds. First, the court found no error in the state court of appeals' application of In re Taylor, 105 Wash.2d 683, 717 P.2d 755, 757 (1986), 3 agreeing that Russell's issues were procedurally barred in that intermediate court as having been previously "heard and determined." Second, the court elected not to exercise its discretionary power to review Russell's claims on the merits.

It is significant in our interpretation that the Washington Supreme Court decided not

Page 1036

to exercise its discretionary power--as contrasted with refusing to hear Russell's case because of a procedural bar--that the commissioner's report makes the following statement after its discussion of the Taylor issue:

Further, the Court of Appeals' treatment in Mr. Russell's [initial] appeal of each of his three renewed legal issues still appears to be fully consistent with applicable case law. The more recent cases Mr. Russell cites do not change the governing rules of law. (Citations omitted).

In the procedural posture in which this matter found itself before the Washington Supreme Court, it cannot be said that this language is of little consequence. It is even reasonably susceptible of a conclusion that the supreme court not only was afforded the opportunity to address petitioner's constitutional claims, but in fact did so. 4 It is not, however, necessary to go that far to decide this case. It is sufficient to note that the "clear and express" statement relying on procedural default required by the Supreme Court in Harris before a petitioner will be barred from presenting his constitutional claims for federal review simply does not appear anywhere in this record.

The facts of this case are not unlike those involving one of the petitioners, Benjamin Malone, in In re Lee, 95 Wash.2d 357, 623 P.2d 687 (1980), rev'd on other grounds sub nom., Hews v. Evans, 99 Wash.2d 80, 660 P.2d 263 (1983). Malone, following his conviction of being a habitual criminal, appealed directly to the Washington Supreme Court. The court, in turn, transferred the appeal to the Washington Court of Appeals. Malone's appeal was based on several grounds, including the admission of a prior conviction based upon a guilty plea which Malone claimed was invalid. The court of appeals affirmed the habitual criminal conviction. Malone then petitioned the supreme...

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436 practice notes
  • In re Jz L.L.C., BAP No. ID-07-1011-KMoR.
    • United States
    • Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Ninth Circuit
    • June 18, 2007
    ...Hamilton, 270 F.3d at 782-85; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir.1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990); Alary Corp. v. Sims (In re Assoc'd Vintage Group, Inc.), 283 B.R. 549, 566 (9th Cir. BAP In the case of omitted assets in ba......
  • United States v. Washington, No. CR 11–61–M–DLC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • August 22, 2012
    ...Judicial estoppel is an equitable remedy the application of which is left to the discretion of the district court. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). Among the factors to be considered are: 1) whether a party has taken a position that is clearly inconsistent with its earl......
  • Nada Pac. Corp. v. Power Eng'g & Mfg., Ltd., No. C 13–04325 LB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 10, 2014
    ...protect the integrity of the judicial process by preventing a litigant from “playing fast and loose with the courts,” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). “It also ‘applies to a party's stated position whether it is an expression of intention, a statement of fact, or a lega......
  • U.S. v. $186,416.00 in U.S. Currency, No. CV 05-6703 SVW (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 10, 2007
    ...to protect the integrity of the judicial process, it is an equitable doctrine invoked by a court at its discretion." Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). "`Equitable' in this context refers more to fairness and discretion than to the technical distinction between law and eq......
  • Request a trial to view additional results
433 cases
  • In re Jz L.L.C., BAP No. ID-07-1011-KMoR.
    • United States
    • Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Ninth Circuit
    • June 18, 2007
    ...Hamilton, 270 F.3d at 782-85; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir.1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990); Alary Corp. v. Sims (In re Assoc'd Vintage Group, Inc.), 283 B.R. 549, 566 (9th Cir. BAP In the case of omitted assets in ba......
  • United States v. Washington, No. CR 11–61–M–DLC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • August 22, 2012
    ...Judicial estoppel is an equitable remedy the application of which is left to the discretion of the district court. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). Among the factors to be considered are: 1) whether a party has taken a position that is clearly inconsistent with its earl......
  • Nada Pac. Corp. v. Power Eng'g & Mfg., Ltd., No. C 13–04325 LB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 10, 2014
    ...protect the integrity of the judicial process by preventing a litigant from “playing fast and loose with the courts,” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). “It also ‘applies to a party's stated position whether it is an expression of intention, a statement of fact, or a lega......
  • U.S. v. $186,416.00 in U.S. Currency, No. CV 05-6703 SVW (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 10, 2007
    ...to protect the integrity of the judicial process, it is an equitable doctrine invoked by a court at its discretion." Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). "`Equitable' in this context refers more to fairness and discretion than to the technical distinction between law and eq......
  • Request a trial to view additional results

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