Thompson v. Calderon, Nos. 95-99014

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCynthia Holcomb Hall, Circuit Judge, issued dissenting opinion in which T.G. Nelson and Kleinfeld; Kozinski, Circuit Judge, issued dissenting opinion in which T.G. Nelson; Kleinfeld, Circuit Judge, issued dissenting opinion in which T.G. Nelson; FLET
Citation120 F.3d 1045
Parties97 Cal. Daily Op. Serv. 6113, 97 Cal. Daily Op. Serv. 6333, 97 Cal. Daily Op. Serv. 6442, 97 Cal. Daily Op. Serv. 6548, 97 Cal. Daily Op. Serv. 6627, 97 Daily Journal D.A.R. 10,204, 97 Daily Journal D.A.R. 10,529, 97 Daily Journal D.A.R. 10,802, 97 Daily Journal D.A.R. 10,973 Thomas Martin THOMPSON, Petitioner-Appellant-Cross-Appellee, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee-Cross-Appellant. . En Banc Rehearing
Docket Number95-99015,Nos. 95-99014
Decision Date01 August 1997

Page 1045

120 F.3d 1045
97 Cal. Daily Op. Serv. 6113, 97 Cal. Daily
Op. Serv. 6333,
97 Cal. Daily Op. Serv. 6442,
97 Cal. Daily Op. Serv. 6548,
97 Cal. Daily Op. Serv. 6627,
97 Daily Journal D.A.R. 10,204,
97 Daily Journal D.A.R. 10,529,
97 Daily Journal D.A.R. 10,802,
97 Daily Journal D.A.R. 10,973
Thomas Martin THOMPSON, Petitioner-Appellant-Cross-Appellee,
v.
Arthur CALDERON, Warden of the California State Prison at
San Quentin, Respondent-Appellee-Cross-Appellant.
Nos. 95-99014, 95-99015.
United States Court of Appeals,
Ninth Circuit.
En Banc Rehearing Aug. 1, 1997.
Decided Aug. 3, 1997.
Amended Aug. 8, 1997.
Second Amendment Aug. 12, 1997.
Third Amendment Aug. 20, 1997.

Cynthia Holcomb Hall, Circuit Judge, issued dissenting opinion in which T.G. Nelson and Kleinfeld, Circuit Judges joined.

Kozinski, Circuit Judge, issued dissenting opinion in which T.G. Nelson, Circuit Judge, joined.

Kleinfeld, Circuit Judge, issued dissenting opinion in which T.G. Nelson, Circuit Judge, joined.

Page 1047

Gregory A. Long, Sheppard, Mullin, Richter & Hampton, Los Angeles, California, and Quin Denvir, Sacramento, California for Petitioner-Appellant-Cross-Appellee.

Holly D. Wilkens, Deputy Attorney General, San Diego, California, for Respondent-Appellee-Cross-Appellant.

Appeal from the United States District Court for the Central District of California; Richard A. Gadbois, District Judge, Presiding. D.C. No. CV-89-3630-RG.

Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, REINHARDT, HALL, KOZINSKI, T. G. NELSON, KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.

FLETCHER, Circuit Judge.

CHIEF JUDGE HUG, JUDGE PREGERSON, JUDGE REINHARDT concurring; JUDGE BROWNING, JUDGE TASHIMA, JUDGE THOMAS concurring in parts I, II and IV, and in the judgment.

Thomas Martin Thompson's execution is scheduled for August 5, 1997, for the rape and murder of Ginger Fleischli. We recall the mandate that issued on the March 6, 1997, amended opinion in Thompson v. Calderon, 109 F.3d 1358 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997), grant Thompson's petition for a writ of habeas corpus in part, remand in part, and direct that the order scheduling his execution for August 5, 1997, be vacated.

On March 29, 1995, the district court granted in part Thompson's first federal habeas petition. It found that Thompson's trial counsel provided constitutionally deficient representation in failing to refute the rape evidence and in failing to impeach the testimony of a notoriously unreliable jailhouse informant. The district court ordered that Thompson receive a new trial on the rape conviction and the rape special circumstance finding and vacated his death sentence.

The panel reversed the district court's grant of habeas relief. It concluded that although trial counsel may have been ineffective, any deficient performance did not prejudice Thompson's defense to the rape and rape special circumstance charges. It affirmed the district court's denial of relief on Thompson's other claims, including his claim of prosecutorial misconduct. Due to procedural misunderstandings within our court, no en banc call was made. The United States Supreme Court denied Thompson's petition

Page 1048

for a writ of certiorari, and on June 11, 1997, our court's mandate issued.

On July 22, 1997, Thompson filed an emergency motion with this court requesting that the panel recall its mandate and reconsider its decision. 1 The panel denied the motion. A majority of the active, nonrecused judges of this circuit then voted to reconsider en banc whether to recall the mandate. Because of the exceptional circumstances surrounding our handling of the appeal from Thompson's first habeas petition and because we are convinced that the panel committed fundamental errors of law that would result in manifest injustice, we now sua sponte recall the mandate and reverse the panel's decision. We affirm the part of the district court order granting Thompson's writ with respect to the rape conviction and rape special circumstance charge, and vacating his death sentence. We remand for further review with respect to the first-degree murder conviction, and vacate the State's order of execution.

I. MOTION TO RECALL THE MANDATE

A.

We have the power to recall the mandate of a final decision of our court, and to do so sua sponte. See Malik v. Brown, 65 F.3d 148, 149 (9th Cir.1995). We have long recognized the power to recall the mandate as a means of protecting the integrity of our processes and decisions. Perkins v. Standard Oil Co., 487 F.2d 672, 674 (9th Cir.1973). The decision whether to recall the mandate "is entirely discretionary with this court," Feldman v. Henman, 815 F.2d 1318, 1322 (9th Cir.1987), and the Supreme Court will review that decision, if at all, only for an abuse of discretion. See Hawaii Housing Auth. v. Midkiff, 463 U.S. 1323, 1324, 104 S.Ct. 7, 8, 77 L.Ed.2d 1426 (1983) (Rehnquist, J., in chambers).

Recalling a mandate is an extraordinary remedy and we will exercise our authority to do so only in exceptional circumstances, such as when it is necessary in order to prevent injustice. Zipfel v. Halliburton Co., 861 F.2d 565, 567-68 (9th Cir.1988). We have not defined or limited the exceptional circumstances that may warrant recalling the mandate. We have recalled the mandate most frequently when an intervening statutory change or Supreme Court decision has undermined the basis of our decision. See, e.g., Malik, 65 F.3d at 149 (statute); United States v. Davis, 36 F.3d 1424, 1429-30 (9th Cir.1994) (Supreme Court decision); Bryant v. Ford Motor Co., 886 F.2d 1526, 1529-30 (9th Cir.1989) (statute); Zipfel, 861 F.2d at 567-68 (Supreme Court decision). Exceptional circumstances warranting recall of the mandate also exist when recall is necessary to prevent an erroneous ruling from working an injustice. See Nevius v. Sumner, 105 F.3d 453, 461 (9th Cir.1996).

B.

Our interest both in protecting the integrity of our processes and in preventing injustice are implicated in the case before us. The circumstances here are exceptional for a number of reasons, individually and collectively. First, our normal en banc process did not function in the intended manner. But for procedural misunderstandings by some judges of this court, an en banc call would have been made and voted upon at the ordinary time. Second, in reversing the district court, the panel appears to have made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice. The consequence of our failure to act would be the execution of a person as to whom a grave question exists whether he is innocent of the death-qualifying offense, the alleged rape, and whose conviction on the first-degree murder charge may be fundamentally flawed. This is a person who has never before been convicted of a crime. Under these circumstances, we have an obligation to recall the mandate in order to preserve the integrity of the judicial process.

Page 1049

We must make it clear at the outset that we act to review the panel's decision not because of any new evidence offered by Thompson nor because of any new argument or ground for relief he suggests; nor do we act because Thompson presents any second or successive claim for relief. Although, in the interests of comity, we delayed acting until Thompson's state court proceedings had concluded, we act now because we have sua sponte concluded that the interests of justice require us to afford Thompson the en banc process we should have initiated immediately after the panel's decision.

Our normal procedure when we, as a court, believe a three-judge panel has erred, is to call for a vote on whether to rehear the case en banc. No active judge requested an en banc vote when the panel's initial opinion was filed in September 1996. However, when the panel filed its amended opinion on March 6, 1997, two judges of this court advised the panel that they wished to call for an en banc vote. A series of misunderstandings led those judges to believe that the time for an en banc vote had passed, and that they were prohibited from making an en banc call at that time. 2

Because of misunderstandings or errors by members of the court, no en banc vote was taken when it ordinarily would have occurred. Instead, the panel stayed issuance of its mandate while Thompson sought a writ of certiorari from the Supreme Court, and upon denial of his certiorari petition, the mandate issued. A sua sponte request to consider en banc whether to recall the mandate was made shortly thereafter, even before the mandate was spread in the district court. Through a consultative process, the court decided to postpone action on whether sua sponte to recall the mandate until after Thompson concluded his state court habeas proceedings and filed a further request for review in this court. 3

Among the most important and consistent themes in ... death penalty jurisprudence is the need for special care and deliberation in decisions that may lead to the imposition of that sanction. The [Supreme] Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.

Thompson v. Oklahoma, 487 U.S. 815, 856, 108 S.Ct. 2687, 2710, 101 L.Ed.2d 702 (1988) (O'Connor, J., concurring). We now provide for the first time en banc review of Thompson's first habeas petition--a review which became available to him only a brief period ago. The review we now provide Thompson is available to every habeas petitioner on his first petition upon majority vote of this court. It is a part of the full and fair procedure our court affords in connection with initial habeas petitions.

We reiterate that Thompson is not responsible for the lateness of the hour. When we recognized our own procedural error with respect to...

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