Toomey v. Clark

• Decision Date: 08 June 1989
• Docket Number: No. 87-4350,87-4350
• Citation: 876 F.2d 1433
• Parties: 50 Fair Empl.Prac.Cas. 437 Patricia Gayle TOOMEY, Petitioner-Appellant, v. Sue CLARK, Superintendent of the Washington State Corrections Center at Purdy; Kenneth O. Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1433

876 F.2d 1433

50 Fair Empl.Prac.Cas. 437

Patricia Gayle TOOMEY, Petitioner-Appellant, v. Sue CLARK, Superintendent of the Washington State Corrections Center at Purdy; Kenneth O Eikenberry, Attorney General of the State of Washington Respondents-Appellees.

No. 87-4350.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 11, 1989.

Decided June 8, 1989.

Timothy K. Ford, Seattle, Wash., for petitioner-appellant.

Linda A. Dalton, Asst. Atty. Gen., Olympia, Wash., John M. Jones, Asst. Atty. Gen., Dept. of Corrections, Olympia, Wash., for respondents-appellees.

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

Before WRIGHT, TANG and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Patricia Gayle Toomey, a Washington prisoner, appeals the district court's denial of her habeas corpus petition without an evidentiary hearing. She contends that the juvenile court's consideration of her pregnancy in its decision to decline jurisdiction violated her equal protection rights. We affirm.

BACKGROUND

Washington charged 16-year-old Toomey with first degree felony murder and conspiracy to commit robbery. She was tried as an adult and convicted. The Washington Court of Appeals stated succinctly the facts underlying her conviction:

Duane Dudley enlisted 16-year-old Patricia Toomey to help him rob a sailor, using a gun. The scheme went horribly awry; Dudley killed the victim. The juvenile court declined jurisdiction and Toomey, tried as an adult, was convicted of first degree murder....

It was Toomey who first gave police the details of the crime. Dudley, she said, asked her to come with him because "I'm a girl and I can always lure them." He also asked her to carry his gun in her purse. They spent several hours looking for a victim. Finally, about 1:30 a.m., they managed to lure Gerald Marzulli into an alley on the pretense of making a drug sale. Toomey slipped Dudley the gun and pretended to go off to get the merchandise. Dudley thought he saw a badge in Marzulli's wallet and was about to be arrested. He shot Marzulli. A few minutes later, on a prearranged signal, he rejoined Toomey and told her what he had done. On the basis of Toomey's admissions and corroboration by others, both she and Dudley, also a juvenile, were arrested and referred to the juvenile court.

State v. Toomey, 38 Wash.App. 831, 832-33, 690 P.2d 1175, 1177-78 (1984) (footnote omitted), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 501 (1985).

The juvenile court conducted an extended declination hearing. In light of the criteria set forth in Kent v. United States for waiving jurisdiction, ¹ it heard testimony At the conclusion of the hearing, the court held that although retaining juvenile court jurisdiction would serve Toomey's best interests, the best interests of society and the protection of the community required declination. It based that decision primarily upon "the seriousness of the offense, the apparent sophistication of the juvenile and the less than ideal situation for treatment and rehabilitation." Among other factors, the court found:

from many witnesses on Toomey, her role in the alleged offense, her family background and personal history, the prospect of her rehabilitation in the juvenile system, and other relevant factors.

[t]hat the possibility of successful treatment and rehabilitation of PATRICIA G. TOOMEY within the juvenile system is diminished by the fact of her pregnancy. Although Echo Glen and the juvenile system have facilities such that PATRICIA G. TOOMEY could give birth to her child within the juvenile system, the issues involved in either the termination of her parental rights or her involvement in programs designed to increase her parental ability will hamper and distract her ability to deal with the problems outlined in Finding of Fact XVI [describing Toomey's drug abuse and emotional problems].

The court's reliance on the problems generated by Toomey's pregnancy is the basis of her equal protection claim.

Tried as an adult, Toomey was convicted by a jury and sentenced to life imprisonment for first degree felony murder and ten years' imprisonment for conspiracy to commit robbery. She appealed to the Washington Court of Appeals, which rejected her equal protection claim and affirmed the juvenile court's declination order and her conviction. See Toomey, 38 Wash.App. at 836-38, 690 P.2d at 1180. The Washington Supreme Court denied review, Toomey v. State, 103 Wash.2d 1012, (1985), and the United States Supreme Court denied her petition for certiorari, Toomey v. Washington, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 501 (1985).

Toomey filed a 28 U.S.C. Sec. 2254 habeas corpus petition. After reviewing the state record, the magistrate issued a report rejecting her claims and recommending that the court dismiss the petition without an evidentiary hearing. The district court approved his report and dismissed the petition.

STANDARD OF REVIEW

We review de novo the district court's decision to deny a habeas corpus petition. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir.1987). Our review of a petition denied without an evidentiary hearing involves a two-part inquiry. First, we must determine whether Toomey has alleged facts that, if proved, would entitle her to relief. If she did, we must determine whether an evidentiary hearing is necessary to establish the truth of her allegations. Id.; see Townsend v. Sain, 372 U.S. 293, 312-19, 83 S.Ct. 745, 756-60, 9 L.Ed.2d 770 (1963) (discussing circumstances when a reviewing federal court must grant an evidentiary hearing to a habeas applicant). We may not affirm a district court's denial of a petition without a hearing unless the record shows that it independently reviewed relevant portions of the state court record. Lincoln, 807 F.2d at 808; Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985).

DISCUSSION

Toomey contends that the court's declination decision violated her equal protection rights "because it was explicitly based on the fact that she was a pregnant female, and because the State of Washington has not taken minimal steps to accomodate [sic] pregnant females in its juvenile system." She asks this court to remand for an opportunity to develop the evidence supporting her discrimination claim. Specifically, she

asks for an evidentiary hearing on whether the state has failed to take minimal steps to accommodate pregnant females in its juvenile system and whether consideration of pregnancy in a juvenile declination decision serves any legitimate state interest.

I

Toomey did not allege generally that Washington's juvenile courts are less likely to retain jurisdiction over female juveniles than male juveniles. Thus, the narrow question presented is whether the juvenile court discriminated against Toomey by considering her pregnancy in declining jurisdiction. We must determine whether that consideration constituted gender-based discrimination on its face. If not, we must determine whether the court's reliance on her pregnancy reflected invidious gender-based discrimination. ² See Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979).

A. Did Consideration of Pregnancy Constitute Sex Discrimination on its Face?

The Supreme Court has had difficulty finding unlawful gender discrimination when the basis for disparate treatment is pregnancy. It has justified explicit gender discrimination because only women can become pregnant. See Michael M. v. Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981) (upholding a state statute that punished only males for statutory rape by finding that the statute advanced a reasonable state interest: limiting illegitimate teenage pregnancies). However, it has not necessarily treated pregnancy as defining a gender-based classification under the Equal Protection Clause.

In Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), the Court considered an equal protection challenge to a state disability insurance system that excluded pregnancy from coverage. It held that the exclusion did not constitute discrimination under equal protection analysis and found that the state had a rational reason for excluding pregnancy. Id. at 494-97, 94 S.Ct. at 2490-92. Dismissing the issue of gender discrimination in a footnote, it said:

While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.... Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

Id. at 496-97 n. 20, 94 S.Ct. at 2492 n. 20 (citations omitted and emphasis added).

The Court extended this analysis to a similar case under Title VII. See General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). In construing Title VII, it denied relief to female employees whose disability plans did not include pregnancy by finding that the exclusion of pregnancy from coverage under the state plan was not itself discrimination based on sex. Id. at 135, 97 S.Ct. at 407.

In Nashville Gas Co. v. Satty, 434 U.S. 136, 142-43, 98 S.Ct. 347, 351-52, 54 L.Ed.2d 356 (1977), the Court held that an employer's mandatory maternity leave program that forced a woman to take formal leave without pay and resulted in a loss of seniority constituted sex discrimination under Title VII. It distinguished the case from Geduldig and Gilbert by noting that In response to the Geduldig and Gilbert decisions, Congress enacted the Pregnancy...