Tracy Jones v. Gloria Henry , 460 F. App'x 717 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
TRACY MAÈÈIZZINE JONES, No. 09-15550
Petitioner - Appellant, D.C. No. 2:05-cv-01067-GEB-
GGH
v.
GLORIA A. HENRY; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
TRACY MAÈÈIZZINE JONES, No. 09-16120
Petitioner - Appellee, D.C. No. 2:05-cv-01067-GEB-
GGH
v.
GLORIA A. HENRY; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellants.
Appeal from the United States District Court
for the Eastern District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Garland E. Burrell, District Judge, Presiding
Argued and Submitted September 1, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.
In 1996, Tracy Maxxizzine Jones pleaded no contest in California Superior
Court to an assault offense that can be sentenced as a felony or a misdemeanor.
The sentencing judge treated the offense as a felony, and because Jones had two
prior qualifying felonies, she received twenty-five years to life in prison under
California's 'three striµes' law. Following a number of collateral challenges to her
sentence in state court, Jones filed a federal habeas petition in May 2005, raising
several claims of ineffective assistance of counsel. The State of California moved
to dismiss Jones's amended petition on grounds of untimeliness. The district court
denied the motion and granted habeas relief on the basis of Jones's claim of
ineffective assistance of appellate counsel. The court, however, denied habeas
relief on the basis of Jones's claim of ineffective assistance of trial counsel. The
State appeals the district court's rulings on timeliness and ineffective assistance of
appellate counsel, and Jones appeals the court's ruling on ineffective assistance of
trial counsel. We address each claim in turn. As the facts and procedure are
µnown to the parties, we do not discuss them in detail.
Page 2 of 10
1. Timeliness -- Pursuant to 28 U.S.C. y 2244(d)(1)(A), the relevant
one-year limitation period begins to run when a criminal 'judgment [becomes]
final by the conclusion of direct review or the expiration of the time for seeµing
such review.' Where the facts underlying a request for equitable tolling of
AEDPA's limitations period are undisputed, we review the statute-of-limitations
question de novo. See, e.g., Bills v. Clarµ, 628 F.3d 1092, 1096 (9th Cir. 2010).
In July 2001 the California Court of Appeal, on collateral review, remanded
Jones's case to the superior court to exercise its discretion to striµe one or both of
Jones's prior felony convictions. On March 14, 2002, the superior court declined
to striµe either prior conviction. The dispositive question here is whether the
remand 'reopened' the direct review of Jones's sentence, postponing the finality of
her conviction for AEDPA purposes.
The Supreme Court's decision in Jimenez v. Ïuarterman, 555 U.S. 113(2009), squarely controls. The Supreme Court held that an order from the Texas
Court of Criminal Appeals allowing Jimenez to file an out-of-time appeal reopened
direct review of his conviction, changing the date at which his conviction became
final for AEDPA purposes. Id. at 120. As in Jimenez, here the remand to the
superior court 'restore[d] the pendency' of Jones's case and made her sentence
'again capable of modification through direct appeal to the state courts and to [the
Page 3 of 10
Supreme Court] on certiorari review.' Id. (internal quotation marµs and citation
omitted). The post-remand proceeding in superior court was not a collateral
proceeding; Jones had no habeas petition pending in the superior court at that time,
and the transcript of the hearing bears the docµet number of Jones's original
criminal case. Rather, the proceeding was a continuation of the underlying
criminal prosecution, and the superior court's refusal to striµe either of Jones's
priors constituted a sentence that could be appealed. Indeed, California courts have
recognized that a defendant may appeal a superior court's decision on remand not
to striµe priors. See, e.g., People v. Burgos, 12 Cal. Rptr. 3d 566, 570 n.4 (Ct. App.
2004). We therefore agree with the district court that Jones's criminal judgment
became final on May 13, 2002.
Of course, without equitable tolling, Jones's petition would still have been
untimely, as it was filed on May 31, 2005.1 In Holland v. Florida, the Supreme
Court decided that AEDPA's one-year statute of limitations is subject to equitable
tolling if the petitioner 'shows (1) that [s]he has been pursuing h[er] rights
diligently, and (2) that some extraordinary circumstance stood in h[er] way and
1
We agree with the district court's conclusion that Jones's habeas petition
was not 'properly filed' in the California Supreme Court on March 12, 2003, and
thus its pendency between that date and June 6, 2004 did not qualify for statutory
tolling under 28 U.S.C. y 2244(d)(2).
Page 4 of 10
prevented timely filing.' 130 S. Ct. 2549, 2562 (2010) (internal quotation marµs
and citation omitted). Here, Jones's third lawyer, Richard Dangler,2 misled Jones
into believing that he was appealing her sentence and that her rights were being
pursued; failed to file an appeal, let alone a timely one; filed an untimely and
improper collateral challenge in the California Supreme Court; falsely led Jones to
believe that this challenge tolled AEDPA's statute of limitations; and failed to
promptly send Jones the documents that she requested to prepare her federal
habeas petition immediately after her state habeas petition was denied.3 This was
more than just 'a garden variety claim of excusable neglect.' Id. at 2564 (citation
and quotation marµs omitted); see also, e.g., Spitsyn v. Moore, 345 F.3d 796, 801
(9th Cir. 2003) (holding that a similar combination of misconduct was 'sufficiently
egregious to justify equitable tolling'). Indeed, the California Court of Appeal
later found that Dangler 'systematically misl[ed] his clients and abus[ed] the writ
process for pecuniary gain.' In re White, 18 Cal. Rptr. 3d at 451. Jones diligently
pursued her rights despite extraordinary circumstances created by a lawyer who
2
Dangler resigned his law license on September 3, 2004, while facing
disciplinary charges. See In re White, 18 Cal. Rptr. 3d 444, 449 (Ct. App. 2004).
3
Jones also diligently sought to obtain the necessary files from the superior
court.
Page 5 of 10
was grossly negligent and intentionally deceptive. Jones is therefore entitled to
equitable tolling maµing her May 31, 2005 federal habeas petition timely.
2. Ineffective Assistance of Appellate Counsel -- The district court
granted Jones habeas relief on the basis of ineffective assistance of appellate
counsel. In reaching its decision, the district court 'looµed through' the California
Supreme Court's summary denial of Jones's claims and found that the last
reasoned opinion addressing those claims dismissed them on procedural grounds of
untimeliness. Concluding that no state court had addressed the merits of Jones's
claims, the district court applied de novo review.
While Jones's appeal to this court was pending, the Supreme Court decided
Harrington v. Richter, 131 S. Ct. 770 (2011). 'In Richter, the Court held that
summary denials of original petitions for habeas corpus filed in the Supreme Court
of California should 'be presumed' to be 'adjudicated . . . on the merits.'' Williams
v. Cavazos, 646 F.3d 626, 635 (9th Cir. 2011) (quoting Richter, 131 S.Ct. at
784-85). Here, the earlier petitions dismissed as untimely by the California
Superior Court are not sufficient evidence to overcome this presumption. Those
petitions were filed prior to when direct review of Jones's sentence was reopened
in 2002; thus, whether those petitions were untimely has no bearing on whether
Page 6 of 10
Jones's habeas petition in the California Supreme Court -- filed after the new date
of her conviction becoming final -- was also dismissed as untimely.
Jones's claim of ineffective assistance of appellate counsel must therefore be
reviewed under 28 U.S.C. y 2254(d)(1). Under y 2254(d)(1), federal habeas relief
may not be granted unless the earlier state court decision 'was contrary to' or
'involved an unreasonable application' of federal law then clearly established by
the Supreme Court. Richter, 131 S.Ct. at 785. Where the earlier state court has not
provided reasons for its decision, we must 'determine what arguments or theories
. . . could have supported' the state court's decision and then asµ 'whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision' of the Supreme Court. Id. at 786.
We conclude that Jones's claim of ineffective assistance of appellate counsel
meets this demanding standard. Franµ Prantil, Jones's appellate counsel, failed to
follow Jones's direction to file an appeal. It is clearly established that the failure to
follow a client's request to file a notice of appeal is per se ineffective. Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395
U.S. 327 (1969)). Where, as here, that failure actually causes the forfeiture of
defendant's appeal, there is also per se prejudice. Id. at 483. Assuming, as
required by Richter, that the California Supreme Court denied Jones's claim on its
Page 7 of 10
merits, the only possible theory that could have supported that decision is the one
advanced by the State here: that Flores-Ortega does not apply because the
document that Prantil failed to file was not a 'notice of appeal' but rather a
statement of reasonable grounds for appeal required by California Penal Code y
1237.5.
This is a meaningless distinction. Under y 1237.5, a defendant who pleads
either guilty or no contest in the trial court must initiate an appeal by filing a
statement of reasonable grounds for appeal with the trial court; to maµe the appeal
operative, the trial court then issues a certificate of probable cause for appeal
unless the defendant's appeal is wholly frivolous. In re Chavez, 68 P.3d 347,
350-53 (Cal. 2003). The California Supreme Court has stated that although this
type of appeal requires the use of a different form, '[i]n view of the substantial
functional identity of these filings . . . an appeal initiated by the filing of a
statement of reasonable grounds must be regarded as the equivalent of an appeal
initiated by the filing of a notice of appeal.' Id. at 353.4 At the time Jones sought
to appeal, former California Rule of Court 31(d) required that the statement of
4
The California Supreme Court has also explained that '[w]hen a
defendant maµes a timely request of his trial attorney to file an appeal from a
judgment upon a plea of guilty, the attorney must file the 1237.5 statement, instruct
defendant how to file it, or secure other counsel for him.' People v. Ribero, 480
P.2d 308, 315 (Cal. 1971).
Page 8 of 10
reasonable grounds be 'file[d] as an intended notice of appeal.' See, e.g., id. at
351. Moreover, the defendant in Flores-Ortega also sought to appeal from a guilty
plea entered in California Superior Court. Flores-Ortega, 528 U.S. at 473-74.
The State's briefing to the Supreme Court pointed out that California requires a
statement of reasonable grounds for an appeal from a judgment following a guilty
plea. See Brief for Petitioner, Roe v. Flores-Ortega, 528 U.S. 470 (2000) (No. 98-
1441), 1999 WL 451708, at *12. But the Supreme Court, while acµnowledging
former California Rule of Court 31(d), described this as a notice of appeal. Flores-
Ortega, 528 U.S. at 474. No fairminded jurist would draw a distinction between a
statement of reasonable grounds and a notice of appeal for the purposes of
determining whether 'counsel perform[ed] in a professionally unreasonable
manner . . . by failing to follow the defendant's express instructions with respect to
an appeal.' Id. at 478. We therefore affirm the district court's decision to grant
habeas relief with respect to ineffective assistance of appellate counsel.
3. Ineffective Assistance of Trial Counsel -- After granting the writ,
the district court denied the State's motion to stay its ruling. Jones was then
granted a certificate of probable cause to pursue an appeal in the California courts.
That appeal was filed but stayed pending the outcome of our decision. Because
that appeal raises similar issues to Jones's cross-appeal here, however, the state
Page 9 of 10
court should have the first opportunity to decide Jones's claims. We therefore
remand Jones's cross-appeal and order the district court to stay and abate the
proceedings pending the outcome of Jones's direct appeal in state court.
With respect to the State's appeal in No. 09-15550 the decision of the
district court is AFFIRMED. Jones's cross-appeal in No. 09-16120 is
REMANDED with instructions.
Page 10 of 10
FILED
Jones v. Henry, Case Nos. 09-15550 and 09-16120 DEC 07 2011
Rawlinson, Circuit Judge, concurring in part: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I agree that counsel for Petitioner Tracy Jones failed to perfect her appeal as
requested. I also agree that counsel's failure to perfect the appeal was a
sufficiently egregious dereliction to warrant equitable tolling. See Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010); see also Spitsyn v. Moore, 345 F.3d 796,
801 (9th Cir. 2003). Accordingly, I concur in the affirmance of the district court's
grant of habeas relief to Jones on her claim asserting ineffective assistance of
appellate counsel.
Because of the unique procedural posture of this case, the issues raised in
Jones's cross-claims are pending in the state court and are, therefore, unexhausted.
See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009). In that circumstance, I
thinµ it more appropriate to remand the case to the district court to exercise its
discretion regarding whether to stay the habeas petition pending exhaustion. See
id. at 1139 (describing the procedure to be used by district courts).
In sum, I concur in the affirmance of the district court's grant of habeas
relief to Jones. I would remand the case to the district court for a determination of
whether to stay the federal proceedings pending exhaustion of Jones's cross-claims
in state court.