Webster v. Woodford

• Decision Date: 05 March 2004
• Docket Number: No. 02-99009.,02-99009.
• Citation: 369 F.3d 1062
• Parties: Larry Junior WEBSTER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, at San Quentin California State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

369 F.3d 1062

Larry Junior WEBSTER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, at San Quentin California State Prison, Respondent-Appellant.

No. 02-99009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2003.

Filed March 5, 2004.

Amended May 25, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patrick J. Whalen, Stan Cross, Jo Graves, and Robert Anderson, Office of the Attorney General of the State of California, Sacramento, CA, for the appellant.

James S. Thomson and Saor E. Stetler, Thomson & Stetler, Berkeley, California; and Joseph Sclesinger, Assistant Federal Defender, and Quinn Denvir, Federal Defendant, Sacramento, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-93-00306 LKK/DADP.

Before: SCHROEDER, Chief Judge, and THOMAS and CLIFTON, Circuit Judges.

ORDER

The opinion in this case, which was filed March 5, 2004, 361 F.3d 522, is amended as follows:

On page 531, "In the instant case, it is undisputed that Webster removed the keys to the automobile from the victim's pocket." is replaced by, "In the instant case, the State proved beyond a reasonable doubt that Webster removed the keys to the automobile from the victim's person."

"Further, California had also long held that constructive possession of property by the victim was sufficient to meet the requirements of the robbery statute." is replaced by, "Further, California had also long held that constructive possession of property by the victim was sufficient to meet the possession requirement of the robbery statute."

With the amendments, the petition for rehearing and rehearing en banc are denied.

OPINION

THOMAS, Circuit Judge.

This appeal requires us to decide, inter alia, whether Larry Webster's due process rights were denied by a judicial expansion of California's definition of death-qualifying special circumstances in violation of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). We hold that they were not and reverse the judgment of the district court.

I

This is a capital case arising out of the murder of William Burke. In late August, 1981, Larry Junior Webster was camping near Sacramento with five associates. Several members of the group had robbed a convenience store the previous night, and the group was aware that the police were looking for them. Webster stated that the group needed to get out of town to avoid the police, and suggested luring one of two persons he had met at a nearby gas station to the campsite, killing him, and stealing his car. They planned for Webster and two others in the group — Carl Williams and Joseph Madrigal — to lure the victim back to the camp with the promise of drugs or participating in robberies. The others were to dig a grave and clean up the campsite.

At the gas station, Webster, Williams, and Madrigal approached the victim, Burke, and suggested they go to the State Fair to sell drugs. Burke agreed with this suggestion and borrowed his cousin's car. The four men then drove back to the campsite. Because the campsite was by a creek some distance below the road, they had to park the car in a lot about a quarter-mile from the site. The two associates who had been waiting at the campsite heard Webster yell, "We're back" from up on a levee. They saw the four men coming down a trail from the levee to the campsite: Williams was in the lead, Madrigal behind, followed by Burke, and finally Webster. Midway down the trail, Webster grabbed Burke from behind, pushed him down the trail, moved in front of him, then stabbed him to death with a buck knife. The group left in Burke's car, and was eventually stopped for a traffic violation, leading to their arrest.

A California jury convicted Webster of first degree murder, robbery, conspiracy to commit first degree murder and robbery, and grand theft of an automobile. The conviction of murder in the first degree was predicated on both a finding of premeditation and the felony murder rule. The jury found two special circumstances making the murder death penalty eligible: murder during the commission of a robbery and murder while lying in wait. After a penalty phase of the trial, the jury sentenced Webster to death.

The California Supreme Court affirmed his sentence. People v. Webster, 54 Cal.3d 411, 285 Cal.Rptr. 31, 814 P.2d 1273 (1991). After his petition for writ of certiorari to the United States Supreme Court was denied, Webster v. California, 503 U.S. 1009, 112 S.Ct. 1772, 118 L.Ed.2d 431 (1992), Webster filed a petition for writ of habeas corpus in federal court. The district court determined that retroactive application of the California Supreme Court's construction of the two special circumstances found by the jury violated Webster's right to due process and therefore warranted invalidation of his death sentence, both special circumstances, and his murder conviction. The court entered partial final judgment under Fed. R.App. P. 54(b) with respect to these two claims, staying adjudication of Webster's other claims to await the outcome of this appeal. The district court's grant of partial final judgment under Fed. R.App. P. 54(b) was appropriate in order to promote judicial economy and conduct a single evidentiary hearing if one should become appropriate. We therefore have jurisdiction under 28 U.S.C. § 2254.

The substantive review standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") do not apply to Webster's petition because he filed his habeas petition in 1993, before the enactment of AEDPA. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.1997) (en banc). Under pre-AEDPA standards, we review the judgment of the district court on issues of law de novo. Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir.2001).

II

The central issue in this case is whether the construction of the special circumstance elements constituted an impermissible retroactive judicial modification of the law in violation of Bouie, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894.

The Ex Post Facto clauses of the United States Constitution prohibit the states and the federal government from passing criminal or penal statutes that have a retroactive effect. U.S. Const. art. I, § 9, cl. 3; id. art. I, § 10, cl. 1. The Ex Post Facto clauses do not, by their terms, include the judiciary, and the Supreme Court has never extended the Ex Post Facto clauses to judicial acts. See, e.g., Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 59 L.Ed. 969 (1915).

However, in Bouie, the Supreme Court held that a judicial construction of a criminal statute encompassing conduct not previously addressed by the statute can violate the Due Process Clause. 378 U.S. at 353-54, 84 S.Ct. 1697. Thus, as the Court stated:

If a judicial construction of a criminal statute is `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' it must not be given retroactive effect.

Id. at 354, 84 S.Ct. 1697 (quoting Hall, General Principles of Criminal Law (2d ed.1960), at 61).

At issue in this case are two aspects of the special circumstances which the jury found true beyond a reasonable doubt: (1) the "immediate presence" element of robbery and (2) what constituted "lying in wait for murder." Webster argues that the California Supreme Court's construction of these elements was not foreseeable. Thus, he contends that the jury entered its verdict of special circumstances in violation of Bouie and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

A

The State urges us to hold that the district court's interpretation and application of Bouie to the instant case constitutes a new rule of criminal procedure in violation of Teague v. Lane, 489 U.S. 288, 308-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In essence, the State argues that Teague precludes us from applying a due process restriction on retroactive application of substantive criminal statutes retroactively. This argument was not presented to the district court. Therefore, the State has waived the issue, and we need not reach it unless we exercise our discretion to so do. Garceau v. Woodford, 281 F.3d 919, 919-20 (9th Cir.2002), rev'd. on other grounds, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); United States v. Navarro, 160 F.3d 1254, 1256 (9th Cir.1998); Duckett v. Godinez, 67 F.3d 734, 746 n. 6 (9th Cir.1995).¹

Although we need not reach the issue, we elect to exercise our discretion to do so in this instance because this is an interlocutory appeal. The State could easily rectify its error by raising the issue before the district court on remand. Thus, judicial economy is served by addressing the Teague argument in this appeal.

One of the threshold questions to a Teague analysis is whether the proposed rule is substantive or procedural because, as the Supreme Court has noted, "Teague by its terms applies only to procedural rules." Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). As applied in this context, the Bouie rule is unquestionably substantive. As the Court explained in Bouie:

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one `that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,' or `that aggravates a crime, or makes it greater than it was, when committed.' Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State...