Washington v. Ryan

Citation833 F.3d 1087
Decision Date15 August 2016
Docket Number No. 07–15536,No. 05–99009,05–99009
Parties Theodore Washington, Petitioner–Appellant, v. Charles L. Ryan, Respondent–Appellee. Theodore Washington, Petitioner–Appellant, v. Charles L. Ryan, Respondent–Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

833 F.3d 1087

Theodore Washington, Petitioner–Appellant,
v.
Charles L. Ryan, Respondent–Appellee.


Theodore Washington, Petitioner–Appellant,
v.
Charles L. Ryan, Respondent–Appellee.

No. 05–99009
No. 07–15536

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 22, 2016, San Francisco, California
Filed August 15, 2016


Gilbert H. Levy (argued), Law Offices of Gilbert H. Levy, Seattle, Washington, for Petitioner–Appellant.

Laura Chiasson (argued), Assistant Attorney General; Terry Goddard, Attorney General; Office of the Arizona Attorney General, Tucson, Arizona; for Respondent–Appellee.

Nathaniel C. Love (argued), Sidley Austin LLP, Chicago, Illinois; Mark E. Haddad, Sidley Austin LLP, Los Angeles, California; David M. Porter, Co–Chair, NACDL Amicus Committee; for Amicus Curiae National Association of Criminal Defense Lawyers.

Before: Sidney R. Thomas, Chief Judge and William A. Fletcher, Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen and Paul J. Watford, Circuit Judges.

Dissent by Judge Bybee ;

Dissent by Judge Watford

OPINION

CHRISTEN, Circuit Judge:

Theodore Washington, an Arizona death row inmate, filed a notice of appeal (“NOA”) thirty-one days after the district court denied his petition for writ of habeas corpus. Federal Rule of Appellate Procedure 4(a)(1) limited the window for filing this notice to just thirty days, but the rules also provided a grace period for requesting an extension of time. Due to a combination of circumstances—including an error by the court—Washington did not request an extension because he did not learn that his NOA was one business day late until well after the grace period expired. Washington filed a motion under Federal Rule of Civil Procedure 60(b) asking the district court to vacate and reenter its judgment so that his appeal could be deemed timely. The district court denied his request, and he appeals.

The State argues that the district court lacked the authority to vacate and reenter its judgment, and that our court is without jurisdiction to consider Washington's appeal. We disagree.

833 F.3d 1089

The filing deadline in Rule 4(a)(1) is mandatory and jurisdictional, but from their inception, the rules have also given district courts authority to grant relief from judgment. This is a death penalty case and we are mindful that both of Washington's co-defendants received relief from their death sentences. Dismissal of Washington's appeal would prevent any appellate review of the denial of his potentially meritorious habeas petition, yet it was a court error that prevented Washington from seeking an extension of time expressly allowed by the Rules. Therefore, having considered the interests of finality, the danger of prejudice to the State, that Washington missed the filing deadline by just one day, and the absence of any indication of bad faith by his lawyers, we conclude that relief was required under Rule 60(b)(1) or, alternatively, 60(b)(6). We reverse the district court's order and remand for the district court to vacate and reenter its judgment nunc pro tunc as of June 9, 2005. Once judgment is reentered, Washington's appeal from the denial of his petition for writ of habeas corpus will be timely and may be considered on its merits.

BACKGROUND

Washington is one of three co-defendants who were convicted in 1987 of first degree murder and other offenses after two of them entered a home and robbed and shot its occupants. State v. Robinson , 165 Ariz. 51, 796 P.2d 853, 856–58 (1990). All three defendants were sentenced to death. One of them, James Mathers, prevailed on direct appeal when the Arizona Supreme Court ruled that there was insufficient evidence to support his conviction. See State v. Mathers , 165 Ariz. 64, 796 P.2d 866, 873 (1990) (In Banc). The second co-defendant, Fred Robinson, argued in his federal habeas petition that the state trial court's application of a “cruel, heinous, and depraved” sentencing enhancement was arbitrary and capricious, and that counsel was ineffective at the penalty phase of the defendants' joint trial. See Robinson v. Schriro , 595 F.3d 1086, 1110–12 (9th Cir. 2010). Robinson was granted relief on habeas review, see id. at 1113, and on remand the state trial court resentenced him to sixty-seven years to life, see Judgment and Sentence, Case No. S1400CR87–14064 (Yuma Cty., Ariz., Oct. 25, 2011).

Washington's case initially took the same procedural path as Robinson's. The Arizona Supreme Court affirmed Washington's conviction on direct appeal. State v. Robinson , 796 P.2d at 856. Washington filed a petition for post-conviction relief in the state trial court, which remarked that it had “a great deal of difficulty finding a basis to hold this defendant culpable which does not apply, at least equally or in a greater manner, to James Mathers [the co-defendant whose conviction the Arizona Supreme Court overturned for insufficient evidence]. If Mathers, who was present at all times before the entry into the ... [victim's] residence, was not guilty of conspiring to rob and kill, no greater evidence seems to place this defendant at the scene.” Nevertheless, the court denied Washington's petition, and the Arizona Supreme Court summarily denied his petition for review. Washington then filed a federal habeas corpus petition in the District of Arizona. Like Robinson, Washington argued that the state trial court erred by imposing a “cruel, heinous, and depraved” sentencing enhancement, and that he received constitutionally ineffective assistance of counsel during the penalty phase of his trial. Despite these similarities, the course of these cases sharply diverged on federal habeas review.

The district court's denial of Washington's federal habeas petition became final on June 8, 2005, but the court did not

833 F.3d 1090

indicate whether it would grant a certificate of appealability (“COA”). Washington had thirty days to file a NOA, see Fed. R. App. P. 4(a)(1), and the thirtieth day after the district court entered its judgment was Friday, July 8, 2005. Due to a calendaring error by Washington's lawyers, his NOA and motion for a COA were filed on Monday, July 11, 2005, one business day after Rule 4(a)(1)'s filing deadline. The Federal Rules anticipate late filings: Rule 4(a)(5) provides a thirty-day grace period within which parties may request more time to file a NOA upon a showing of good cause or excusable neglect. See Fed. R. App. P. 4(a)(5). Washington had plenty of time to file a motion seeking additional time under Rule 4(a)(5), but due to a court error, he did not receive notice that his NOA was late, so he did not know that he needed an extension of time.

Two circumstances aligned to prevent Washington from learning that his NOA was late within the thirty-day period allowed to seek an extension. First, there were no filings in the district court case, and no entries on the district court docket, for over two and a half months after the NOA was filed. Nothing happened that would have prompted Washington's lawyers to recalculate the Rule 4(a)(1) deadline, so nothing short of spontaneously recalculating its due date would have put Washington's lawyers on notice of their calendaring error. Second, the district court clerk's office did not promptly send Washington's late-filed NOA to the appellate clerk, despite an express directive that it do so. In 2005, Federal Rule of Appellate Procedure 3(d) required the district clerk to “promptly send a copy of the notice of appeal” to the appellate clerk. Fed. R. App. P. 3(d). For reasons not apparent from the record, the district clerk did not comply with this rule. Rather, the clerk waited for the district court to rule on Washington's motion for a COA before sending the NOA to the appellate court. The district court ruled on the motion for a COA on September 30, over two and a half months after it was filed; the clerk then sent the NOA on to the appellate court; and a week after receiving it, the appellate clerk issued an order to show cause why Washington's appeal should not be dismissed as untimely. By then it was too late to seek an extension of time under Rule 4(a)(5), but within six days Washington filed a motion under Rule 60(b) asking the district court to vacate and reenter its judgment so that his appeal could be decided on the merits.

Washington's motion was premised on Federal Rule of Civil Procedure 60(b)(1) or, alternatively, Rule 60(b)(6). He asked the district court to vacate and reenter its judgment denying his habeas petition either: (1) as of June 9, 2005, thereby rendering his original appeal timely; or (2) immediately, thereby triggering a new thirty-day filing window pursuant to Rule 4(a)(1). The district court concluded that it did not have authority to grant the requested relief, and it denied the motion. The court also reasoned that Washington's case did not qualify for relief under Rule 60(b)(1) or 60(b)(6).

Washington separately appealed the district court's order denying his Rule 60(b) motion. A three-judge panel of our court considered Washington's appeal from the denial of his habeas petition (appeal No. 05–99009) and his appeal from the denial of his Rule 60(b) motion (appeal No. 07–15536). The panel concluded that it lacked...

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