Shannon v. Newland

• Decision Date: 08 June 2005
• Docket Number: No. 03-16833.,03-16833.
• Citation: 410 F.3d 1083
• Parties: Brian Dennis SHANNON, Petitioner-Appellant, v. Anthony NEWLAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.3d 1083

Brian Dennis SHANNON, Petitioner-Appellant, v. Anthony NEWLAND, Warden, Respondent-Appellee.

No. 03-16833.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2005.

Filed June 8, 2005.

Donald M. Horgan, Riordan & Horgan, San Francisco, CA, argued the cause and filed briefs for the petitioner; Dennis P. Riordan was on the briefs.

Juliet B. Haley, Attorney General's Office, San Francisco, CA, argued the cause and filed a brief for the respondent; Bill Lockyer, Robert R. Anderson, Gerald A. Engler, and Peggy S. Ruffra were on the brief.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-01-03275-MJJ.

Before BEEZER, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether a California prisoner's petition for writ of habeas corpus is timely when it is filed long after his conviction but shortly after a decision by the California Supreme Court clarifying the state's criminal law in a way potentially favorable to his federal constitutional claim.

I

In October 1993, Brian Shannon and his girlfriend, Kimberly Stack, began to argue heatedly in the living room of Shannon's home. Stack was killed by a shot from a handgun that Shannon kept on the premises. Evidence suggested that the couple had been struggling physically at the time of the shooting or shortly before. Shannon was charged with murder and convicted by a jury. The court sentenced him to fifteen years to life on that count, with an additional enhancement of four years for the use of a gun and sixteen months on a weapons possession charge to which Shannon pled nolo contendere.

Shannon appealed his conviction, arguing (among other things) that the trial court had incorrectly instructed the jury. At Shannon's trial, the jury was instructed on the elements of second-degree murder, which consists, in California, of "the unlawful killing of a human being with malice aforethought." It was instructed that "malice" exists either when "there is manifested an intention unlawfully to kill a human being," or when the defendant intentionally performs an act which he knows is dangerous to human life.¹ It was instructed that murder is reduced to manslaughter if the defendant acted "upon the ground of sudden quarrel or in the heat of passion" and that "[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel."

The parties do not dispute that all of the above instructions were accurate. Shannon's objection, rather, is to the court's instructions defining the lesser offense of voluntary manslaughter. The court instructed the jury that "[e]very person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter," and that voluntary manslaughter requires the prosecution to prove that "[t]he killing was done with the intent to kill." Shannon argued on appeal that the trial court erred in instructing the jury that intent to kill is required for a voluntary-manslaughter conviction. Instead, Shannon argued, voluntary manslaughter—like murder—can also be committed by acting with reckless disregard for human life.

The error was important, Shannon argued, for the following reasons. Murder requires either intent to kill or reckless disregard for life. If the killing is of the intent-to-kill variety, then the existence of "heat of passion" clearly reduces the charge to voluntary manslaughter. What happens, however, when the killing is of the reckless-disregard variety, but the defendant acted in the heat of passion? The crime should not be murder, because heat of passion negates malice; but it cannot be voluntary manslaughter under the trial court's instructions, because that crime requires actual intent to kill. Shannon thus argued that voluntary manslaughter must include reckless-disregard homicides as well as intentional ones and that the erroneous instruction could have led the jury to convict him of murder even had the prosecution failed to meet its burden to disprove heat of passion.

The California Court of Appeal rejected Shannon's claim in June 1996, opining that his "argument does make sense" but holding that it was bound by prior decisions of the California Supreme Court that included intent to kill as an element of voluntary manslaughter. See People v. Shannon, 46 Cal.App.4th 1365, 1370, 54 Cal.Rptr.2d 416 (1996). The California Supreme Court denied review on October 17, 1996.

Because Shannon did not petition the U.S. Supreme Court for certiorari, his conviction became final, for purposes of the statute of limitations for a habeas petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1), when the period for filing such a petition elapsed on January 17, 1997. See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir.1999). He sought no federal habeas relief at that time, and the standard limitations period of one year from the date of final judgment, 28 U.S.C. § 2244(d)(1)(A), therefore expired on January 17, 1998.

In June 2000, the California Supreme Court decided People v. Lasko, 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666 (2000), holding that the standard voluntary manslaughter instruction was indeed incorrect under California law because actual intent to kill is not an element of the crime. Id. 96 Cal.Rptr.2d at 443, 999 P.2d at 668. In August 2000, Shannon petitioned the California Court of Appeal for a writ of habeas corpus based on Lasko. The Court of Appeal denied his petition without opinion and the California Supreme Court denied review in January 2001.

On August 27, 2001, Shannon filed a habeas petition in district court for the Northern District of California, arguing that the erroneous jury instruction violated his federal right to due process. The district court denied the petition as untimely and, in the alternative, on the merits. The district court denied Shannon's request for a Certificate of Appealability, but in December 2003, we granted a certificate and this appeal followed.²

II

A habeas petition by a person in custody pursuant to the judgment of a state court is subject to a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The date on which the one-year period begins is the latest of four possible dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. Since direct review of Shannon's conviction ended in 1996 and he did not file this habeas petition until August 2001, his petition clearly is not timely under subsection (A). He argues, however, that the California Supreme Court's decision in Lasko constituted either, under subsection (B), the removal of an "impediment to filing an application created by State action," or, under subsection (D), the factual predicate of his claim. Alternatively, Shannon argues, the period between his conviction and the California Supreme Court's decision in Lasko should be equitably tolled. We consider these arguments in turn.³

A

Shannon first argues that the California Supreme Court's decision in Lasko, by confirming his contention that his jury instructions had been erroneous, removed a state-created impediment to the filing of his habeas petition and thus triggered a new one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(B). He contends that the state appellate court's rejection of his appeal in June 1996 and the California Supreme Court's refusal to review that decision in October 1996 were state-created impediments to his ability to seek habeas relief. Before the California Supreme Court decided Lasko in 2000, federal courts would have been bound by the state appellate court's holding that the challenged jury instruction accurately stated California law. See West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237-38, 61 S.Ct. 179, 85 L.Ed. 139 (1940) (holding that federal courts must defer to an intermediate state court's interpretation of state law, made in the very case under consideration, when the state supreme court has denied review). Thus, Shannon argues, he was "imped[ed]" from filing his habeas claim until the California Supreme Court finally corrected the lower California courts' error and clarified the elements of voluntary manslaughter in Lasko.

We are not persuaded, however, that the state appellate court's decision was an "impediment" to Shannon's filing a habeas petition. He was free to file such a petition at any time. Shannon's real objection is that the state court's decision determined state law in a way that provided no legal basis for a federal habeas petition: since the state court held that the challenged instruction accurately defined voluntary manslaughter under California law, Shannon could not successfully argue in federal court that the instruction was so mistaken as to violate due process. But Shannon provides no support for the proposition that a state's determination of its own substantive law in a way that leaves a convict with no meritorious federal claim can constitute an "impediment" under §...