Wood v. Hall

Decision Date19 November 1997
Docket NumberNo. 96-35868,96-35868
Parties97 Cal. Daily Op. Serv. 8729, 97 Daily Journal D.A.R. 14,131 Hector Clyde WOOD, Petitioner-Appellant, v. Frank HALL, Director, Oregon Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Steven T. Wax, Federal Public Defender, Portland, OR, for the petitioner-appellant.

Janet A. Klapstein, Deputy Attorney General, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-95-00015-REJ.

Before: GOODWIN, REINHARDT and RYMER, Circuit Judges.

GOODWIN, Circuit Judge:

Hector Clyde Wood petitions for a writ of habeas corpus, arguing that the district court erred in holding that his claims were procedurally defaulted and that he failed to show cause for the default. The Oregon Court of Appeals had dismissed Wood's direct appeal under Oregon's fugitive disentitlement doctrine, which denies litigants who have fled the jurisdiction the right to pursue their claims in the state's courts.

We review de novo the denial of a petition for a writ of habeas corpus. See Johnson v. Zenon, 88 F.3d 828, 828 (9th Cir.1996). We affirm the district court's decision and deny the writ.

I. FACTS AND PROCEDURAL HISTORY

Wood was indicted for first-degree rape on the basis of allegations that he had engaged in sexual intercourse with his nine-year-old daughter. During the state's presentation of evidence, Wood's counsel learned that a Children's Services Division (CSD) caseworker had made written reports after meeting with the victim and had placed them in the CSD file. Wood's counsel moved to strike the caseworker's testimony and moved to inspect the file. Concluding that the CSD file was confidential, the trial court denied both motions.

Wood's counsel later called the caseworker as a hostile witness. That testimony revealed for the first time that the victim had been examined by a doctor shortly after the last alleged assault and that the doctor's report was contained in the CSD file. Prior to closing argument, the prosecutor agreed to stipulate that, if called as a witness, the doctor would testify that the victim's hymen was intact at the time of his examination. Wood's counsel refused to agree to a stipulation until he had read the doctor's report.

The government then turned over the report, which stated that the physical examination of the victim was "normal" and revealed "no evidence of previous sexual abuse." The report also stated that the victim told the examining doctor that she "had been used sexually by her father on two occasions" involving "attempted penetration with his penis." The doctor's report also noted that his physical examination "suggest[ed] no previous penetration of the hymen." This report contradicted the victim's testimony at trial that her father had sexually assaulted her on many occasions, and that these assaults often included vaginal penetration. The parties eventually stipulated to the jury that the doctor would have testified that the victim's hymen was intact at the time of his examination.

The jury convicted Wood of first-degree rape on January 11, 1979. While released on his own recognizance pending sentencing, Wood fled the jurisdiction and remained at large until he was arrested in New Mexico in 1987. Wood posted bail, but again fled. He was arrested two years later in California. Wood was returned to Oregon and sentenced to ten years in prison.

While serving his sentence, Wood filed a direct appeal of his conviction. Holding that the government had failed to comply with state discovery statutes by withholding the CSD file, the Oregon Court of Appeals vacated Wood's conviction and remanded to the trial court for in camera review of the CSD file and a determination of whether Wood was prejudiced by the discovery violations. See State v. Wood, 112 Or.App. 61, 827 P.2d 924, 928, 930, review denied, 313 Or. 355, 833 P.2d 1284 (1992).

On October 15, 1992, two months after Wood had been released on parole, the trial court conducted a hearing regarding the undisclosed evidence. The CSD file was not available for inspection at the time of the hearing, however, because the agency had destroyed it pursuant to routine file retention procedures which required that files be kept for only seven years. The trial court found that Wood was responsible for the loss of the evidence due to his years as a fugitive and his failure to obtain a court order preserving the file. After the parties reconstructed the contents of the file, the court ruled that Wood was not prejudiced by the failure to disclose the caseworker's notes. The court ruled that Wood was prejudiced by the medical report's nondisclosure, but that he had failed to raise or preserve properly his objection to the report by neglecting to move for a mistrial or continuance immediately upon learning of the evidence. The court thus reinstated Wood's conviction.

In early December 1992, Wood went to California to live with another of his daughters without securing permission from his parole officer. On December 15th, he called his parole officer and informed him that he went to California to seek medical treatment for a heart condition. Wood alleged that this treatment was unavailable to him in Oregon and that Oregon had failed to provide him with medical insurance. His parole officer ordered him to return to Oregon within two days. On December 16th, Wood's counsel filed a notice of appeal of Wood's conviction in Wood's absence.

On May 18, 1993, the state filed a motion to dismiss the appeal because Wood was in violation of his parole by being absent from the state. On the same day, Wood underwent quadruple coronary artery bypass surgery in California. On June 21, 1993, Wood filed pro se a response to the state's motion to dismiss, arguing that he had been in regular contact with his attorney, the courts, and the attorney general's office, and that he was in California for legitimate, life-threatening medical reasons. On August 30, 1993, Wood was arrested in California and returned to Oregon.

According to an affidavit filed by Wood's daughter in these federal habeas proceedings, Wood was granted several passes to visit her in California from December 1993 to April 1994. On April 28, 1994, the Oregon Court of Appeals ruled that Wood had lost his right to pursue his direct appeal due to his "history of absconding from justice" and his absence from the state without permission while on parole.

In January 1995, Wood filed pro se the instant federal habeas petition. The district court appointed counsel, who filed a memorandum in support of the petition. On June 28, 1995, Wood's parole supervision was terminated. Adopting the magistrate judge's report and recommendations, the district court denied Wood's petition. Wood timely appealed.

II. MOOTNESS

Although Wood has been released from custody and his probation has been terminated, we reject the state's contention that his habeas corpus petition is moot. A petition for habeas corpus is not moot if adverse collateral consequences continue to flow from the underlying conviction. See Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir.1994). There is an "irrebuttable" presumption that collateral consequences arise from any criminal conviction. See id. 1 Wood's petition thus meets the constitutional requirements of a live controversy and we turn to the state's contention that the procedural default doctrine bars federal review of Wood's claim.

III. PROCEDURAL DEFAULT

"When a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice." Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994). The state contends that through his unlawful flight from Oregon, Wood forfeited his right to appellate review in the state's courts under Oregon's fugitive disentitlement doctrine and that this constituted an independent and adequate state ground of decision.

For a state procedural rule to be "adequate" to foreclose federal review, it must be "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988) (internal quotations omitted). We have explained that "[i]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells, 28 F.3d at 1010.

Wood contends that the Oregon Court of Appeals's refusal to hear his claim did not constitute an adequate state procedural bar because Oregon's fugitive disentitlement doctrine is discretionary. Wood's argument is essentially that because the Oregon courts may dismiss cases in which appellants have absconded, but are not bound to do so, 2 the Oregon state rule is not "strictly or regularly" applied. Under Wood's view, any state doctrine that involves discretion on the part of the state court system may never be an independent and adequate state ground of decision.

We have held, however, that the fact that "the application of a rule requires the exercise of judicial discretion does not render the rule inadequate to support a state decision." Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir.1996); cert. denied, --- U.S. ----, 117 S.Ct. 500, 136 L.Ed.2d 391 (1996). In arguing that a discretionary doctrine may never be an adequate procedural bar, Wood equates discretion with inconsistency. We have expressly rejected this characterization, holding that judicial discretion may be applied consistently when it entails "the exercise of judgment according to standards that, at least over time, can become known and...

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