Keith Williams v. C. Harrison , 368 F. App'x 764 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEITH WILLIAMS, No. 08-56880
Petitioner - Appellant, D.C. No. 3:05-cv-02150-J-CAB
v.
MEMORANDUM *
C. M. HARRISON,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: SCHROEDER, FISHER, and N.R. SMITH, Circuit Judges.
1. Williams claims that he was deprived his constitutional right to due
process when, despite giving oral instructions regarding the defense of duress,
the district court failed to provide the jury with written jury instructions on the
defense of duress while emphasizing the importance of the written instructions.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We disagree. “An omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145,
155 (1977). The court’s failure to provide a written instruction on the defense of
duress did not “‘so infect[] the entire trial that the resulting conviction violate[d]
due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
2. Williams claims that his amended habeas claims should have been heard
by the district court, because the motions to recall the remittitur that he filed in the
California Court of Appeal and California Supreme Court had tolled the statute of
limitations, pursuant to 28 U.S.C. § 2244(d)(2). “An application to recall the
remittitur is a unique California post-conviction remedy whereby the petitioner
asks the Court of Appeal or Supreme Court to reassert its jurisdiction over a case
after it has relinquished that jurisdiction by issuing a remittitur following the final
determination of the appeal.” Hayward v. Stone, 496 F.2d 844, 845 (9th Cir.
1974); see also Gallenkamp v. Superior Court, 270 Cal. Rptr. 346, 349-50 (Cal. Ct.
App. 1990).
A motion to recall the remittitur can reinstate a direct appeal. People v.
Mutch, 482 P.2d 633, 637 (Cal. 1971). However, a motion to recall the remittitur
can also act as a habeas petition. Id. Thus, depending on the claims raised, a
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motion to recall the remittitur may serve as a habeas petition, thus tolling the
statute of limitations for filing federal habeas claims. 28 U.S.C. § 2244(d)(2).
We therefore AFFIRM IN PART, REVERSE IN PART, and REMAND for
a determination as to whether the claims in the motions to recall the remittitur are
such that the motions should be treated as state habeas petitions. The California
courts have permitted recall of the remittitur to function equivalently to a writ—or
in its place—when a petitioner has alleged ineffective assistance of appellate
counsel, see In re Smith, 474 P.2d 969, 976 (Cal. 1970); In re Grunau, 86 Cal.
Rptr.3d 908, 910-11 (Cal. Ct. App. 2008), and where “there is no material dispute
as to the facts relating to his conviction and . . . it appears that the statute under
which [the petitioner] was convicted did not prohibit his conduct.” Mutch, 482
P.2d at 637; see also People v. Hunter, 482 P.2d 658, 659 (Cal. 1971). If petitioner
asserted these habeas claims, the district court shall make determinations as to the
tolling of the statute of limitations and the merits of the amended claims.
The parties are to bear their own costs.
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