and Submitted October 19, 2015 Pasadena, California
from the United States District Court for the Southern
District of California William Q. Hayes, District Judge,
Presiding D.C. No. 3:05-cv-00010-WQH-JMA
Matthew Mulford, Deputy Attorney General; Kevin Vienna,
Supervising Deputy Attorney General; Julie L. Garland, Senior
Assistant Attorney General; Office of the Attorney General,
San Diego, California; for Respondent-Appellant.
A. Sullivan and Robert H. Rexrode, San Diego, California, for
Before: Harry Pregerson and Consuelo M. Callahan, Circuit
Judges and Stanley Allen Bastian, [*] District Judge.
panel affirmed the district court's order granting
Willard James Hall's motion to reopen his habeas
proceedings under Fed.R.Civ.P. 60(b)(6) and its order
conditionally granting Hall's first amended habeas corpus
petition challenging his California state-court conviction
for first-degree murder unless the State of California grants
Hall a new trial within 90 days.
panel held that Hall's Rule 60(b) motion was not
inconsistent with AEDPA's bar on second or successive
petitions, AEDPA's statute of limitations, or AEDPA's
exhaustion requirement. The panel held that the district
court did not abuse its discretion in reopening Hall's
case under Rule 60(b)(6), in this extraordinary case
involving a petitioner whose habeas petition was dismissed
without reaching the merits of his claim, while his
co-defendant was granted habeas relief on the same claim
based on the same error from the same trial. The panel could
not find fault with the district court's determination
that Hall, a pro se litigant, proceeded diligently
or that the delay between the dismissal of his petition and
the filing of his motion to reopen was reasonable.
panel also held that habeas relief is warranted. The panel
held that the trial court's use of California Jury
Instruction Criminal 2.15, which allowed the jury to infer
guilt of murder from evidence that the defendants were in
possession of recently stolen property plus slight
corroborating evidence, is an error of constitutional
magnitude, and that the California Court of Appeal's
determination otherwise was objectively unreasonable. The
panel held that it was an unreasonable application of clearly
established federal law for the California Court of Appeal to
evaluate harmlessness under the less stringent standard set
forth in People v. Watson, 46 Cal.2d 818 (1956),
rather than under the more stringent Chapman v.
California, 386 U.S. 18 (1967), standard for reviewing
errors of constitutional magnitude. Analyzing harmlessness
pursuant to Brecht v. Abrahamson, 507 U.S. 619
(1993), the panel concluded that the state court's
harmless error determination was also unreasonable because
the instructional error resulted in actual prejudice, as
there are grave doubts about whether the jury would have
found Hall guilty beyond a reasonable doubt without the
Callahan dissented. She wrote that the majority repeats the
error of Sherrors v. Woodford, 425 F.App'x 617
(9th Cir. 2011), which granted the habeas petition of
Hall's co-defendant based on the same supposed error,
even in the face of additional facts demonstrating
Sherrors was wrongly decided. She wrote that the
majority ignores that the co-defendant was retried without
the suspect instruction and convicted, and invents an error
of constitutional magnitude where none exists, brushing aside
AEDPA standards and the Supreme Court's repeated
instructions to defer to reasonable state court decisions.
She also wrote that Hall is not deserving of Rule 60(b)
relief, which impermissibly rewards his inaction and
gamesmanship, and unfairly imposes the cost of his retrial on
PREGERSON, Circuit Judge:
a rare and extraordinary case. On July 7, 2001, Ronnie
Sherrors and Petitioner Willard Hall as co-defendants were
convicted of first degree murder in state court. The trial
court's jury instructions included California Jury
Instruction Criminal ("CALJIC") 2.15, which allowed
the jury to infer guilt of murder from evidence that
defendants were in possession of recently stolen property
plus slight corroborating evidence.
16, 2003, on Sherrors's and Hall's consolidated
direct appeal, the California Court of Appeal determined that
the trial court erred when it instructed the jury on CALJIC
2.15. People v. Hall, No. D038857, 2003 WL 21661225,
at *6 (Cal.Ct.App. July 16, 2003) (unpublished). In so
concluding, the Court of Appeal relied on People v.
Prieto, which held that "proof a defendant was in
conscious possession of recently stolen property simply does
not lead naturally and logically to the conclusion the
defendant committed a rape or murder." 30 Cal. 4Th 226,
229 (2003) (quoting People v. Barker, 91 Cal.App.4th
1166, 1176 (2001)). The California Court of Appeal, however,
affirmed the convictions of Sherrors and Hall applying the
People v. Watson, 46 Cal. 2d 818, 836 (1956),
harmless error standard.
exhausting state court remedies, Hall filed his own habeas
petition in federal court raising a CALJIC 2.15 instructional
error claim. Later Hall quit pursuing this habeas petition
because he believed that he "co-submitted" another
federal habeas petition with Sherrors. Sherrors, who filed
the petition, was granted habeas relief. Hall, who had relied
on Sherrors to advance their instructional error claim on
Hall's behalf, found himself out in the cold. But the
U.S. district court judge William Q. Hayes in San Diego
recognized these extraordinary circumstances. The district
court granted Hall's motion to reopen his original habeas
proceedings under Federal Rule of Civil Procedure 60(b)(6)
and granted Hall's habeas petition consistent with our
court's earlier grant of habeas relief to Sherrors. For
the reasons set forth below, we affirm.
the story about how the case came about. In September 1999,
after experiencing financial problems and developing a drug
habit, Stephen Foth moved back to his home town of San Diego
to "get his life back in order." Foth's close
friend, Grace Ko, permitted him to stay with her. On the
afternoon of September 29, 1999, Foth told Ko he was going to
see another friend to borrow some money and would return
later. Foth borrowed Ko's black Audi A4, her cell phone,
and her Visa card so that he could put some gas in the car.
The next day, Foth's body was found in a pumpkin patch.
He had bled to death after being stabbed approximately 83
days after the body was found, Lena Hixon told a friend that
she witnessed "something . . . pretty bad" and that
two men had threatened her life. The friend notified the
police after Hixon refused to do so. At first, Hixon told the
police that she committed Foth's murder with two men
named Benjamin Wilson and Terrence Smallgreen. A few days
later, Hixon changed her story and told the police that
Ronnie Sherrors and Willard Hall were involved in the murder.
Sherrors and Hall were charged with the murder of Stephen
Foth. Hixon entered into a plea agreement in
which she agreed to plead guilty to assault with a deadly
weapon and conspiracy to sell cocaine, and to testify against
Sherrors and Hall.
inconsistent at times, Hixon's testimony was the key to
the prosecution's case. Here is Lena Hixon's story:
September 29, 1999, Foth approached Hixon and asked if she
knew where he could buy some rock cocaine. She did and the
two drove in Ko's Audi to an apartment where Sherrors and
Hall were living. Hixon, Sherrors, and Hall handled drug
sales for Hixon's boyfriend, Michael Washington.
Sherrors, Hall, and Foth drove off together in the Audi,
leaving her behind. After 15 to 20 minutes, Sherrors and Hall
returned in the Audi without Foth. Hixon believed that Foth
had loaned the Audi to Sherrors and Hall in exchange for
drugs. She got in the Audi with Sherrors and Hall to drive
around and smoke some marijuana.
driving around in the Audi with Sherrors and Hall, Sherrors
drove off the highway and parked the Audi in a dirt lot.
Sherrors and Hall then opened the trunk, from which Foth
climbed out. Hixon testified that she demanded to know what
was going on, but Sherrors threatened her and grabbed her
hands, breaking two of her acrylic fingernails.
Sherrors began to stab Foth, while Foth was tussling with
Hall. Sherrors forced Hixon to stab Foth. Sherrors and Hall
stripped Foth and threw his body into the bushes. They put
Foth's clothes in the trunk and drove away in the Audi.
Hixon, Sherrors, and Hall stopped at a gas station
convenience store where Hall was thwarted trying to use
Foth's ATM card.
Davis, Hixon's fellow inmate at Los Colinas Women's
Detention Center, also testified at trial. Hixon had spoken
to Davis on several occasions about the incidents on
September 29. In these conversations, Hixon again pointed the
finger at Sherrors and Hall, but her story to Davis differed
from the story she told to the police. Hixon's story to
Davis implied that Hixon was much more involved in the crime
than the story she told to the police.
State's case against Hall relied overwhelmingly on
Hixon's story. In addition to Hixon's version of
events, the State's evidence against Hall included (1)
testimony that Hall was seen sitting in the passenger side of
the Audi days after the crime; (2) testimony that Sherrors
and Hall had seen a newscast mentioning the Audi, and the
next morning the Audi was found burned; and (3) Foth's
high school class ring found in a pair of Hall's pants.
None of the evidence found at the crime scene-a shirt, a pair
of size eight sneakers, a wristwatch, a broken fingernail, a
pair of bloodstained socks, and a shoe print in the soil-was
linked to Hall.
to the federal habeas appeal before us now, at the close of
trial, the state jury was instructed on CALJIC 2.15, which
If you find that a defendant was in possession of recently
stolen property, the fact of that possession is not by itself
sufficient to prove an inference that the defendant is guilty
of the crime of murder. Before guilt may be inferred, there
must be corroborating evidence tending to prove a
defendant's guilt. However, this corroborating evidence
need only be slight and need not by itself be sufficient to
warrant an inference of guilt.
As corroboration, you may consider the attributes of
possession, time, place and manner; that the defendant had an
opportunity to commit the crime charged; the defendant's
conduct; his false or contradictory statements, if any; and
any other statements that may have been made with reference
to the property.
7, 2001, the jury convicted Sherrors and Hall of first-degree
murder. Sherrors and Hall were both sentenced to life without
the possibility of parole, plus one year.
16, 2003, on consolidated direct appeal, the California Court
of Appeal found that it was error to instruct the jury
pursuant to CALJIC 2.15, but affirmed Sherrors and Hall's
convictions under the People v. Watson, 46 Cal. 2d
818, 836 (1956), harmless error standard. People v.
Hall, No. D038857, 2003 WL 21661225, at *6 (Cal.Ct.App.
July 16, 2003) (unpublished). The California Supreme Court
summarily denied their petitions for review.
January 3, 2005, Hall filed a pro se habeas petition
under 28 U.S.C. § 2254 in federal district court. On
March 15, 2005, Hall filed his First Amended Petition for
Writ of Habeas Corpus. His petition alleged the following
claims: (1) the trial court gave an improper modification of
jury instruction CALJIC 2.15; (2) the trial court gave an
improper modification of jury instruction CALJIC 8.81.17; and
(3) the trial court provided an incomplete verdict form to
the jury. The California Attorney General's Office and
the Warden F.W. Haws ("the State") moved to dismiss
the petition on the ground that Hall had failed to exhaust
the second claim in state court.
Hall had failed to demonstrate good cause for failing to
exhaust the second claim, see Rhines v. Weber, 544
U.S. 269, 278 (2005), the district court informed Hall on
January 25, 2006 of his two options: (1) voluntarily dismiss
his entire federal petition and return to state court to
exhaust his unexhausted claim, or (2) formally abandon his
unexhausted claim and proceed with his two exhausted claims.
On February 28, 2006, Hall filed a motion for a 30-day
extension to file a formal abandonment, which the district
court granted. Thereafter, Hall made no further filings. He
did not file a formal abandonment or any other motion. As a
result of Hall's failure to comply with the district
court's order, the district court dismissed his petition
without prejudice on May 19, 2006.
in 2005, Sherrors, Hall's co-defendant, was also
advancing a federal habeas petition, propounding the same
CALJIC 2.15 argument as Hall. Hall believed that he was a
"co-submitter" in these filings based on
Sherrors's representations to him and their history of
shared appeals. On November 2, 2007, the district court
granted Sherrors's habeas petition, finding that the use
of CALJIC 2.15 constituted prejudicial constitutional error.
The State appealed to the Ninth Circuit.
29, 2009, Hall filed a "motion to join"
Sherrors's case. The district court construed the motion
to join as a Rule 60(b) motion to reopen his habeas
proceedings. The district court dismissed the motion without
prejudice, stating that Hall could re-file within 60 days of
receiving notice of the Ninth Circuit's decision in
Sherrors's appeal. On August 31, 2011, the State served
on Hall a copy of this court's decision in Sherrors
v. Woodford, 425 F.App'x 617 (9th Cir. 2011), which
affirmed the district court's grant of habeas relief to
60 days of receiving notice of our decision in
Sherrors, Hall re-filed his motion to join
Sherrors's case. In his motion, Hall stated that he
"had a good faith reason to believe his interests were
included in any outcome of [Sherrors's case]"
because Sherrors had communicated to Hall and to the district
court that the petition was "co-submitted, " and
because "throughout the state courts [process], counsel
for both co-defendants used this language of joinder to
ensure that both defendants benefitted from any success
through their appeals." After the State opposed the
motion, a pro se Hall filed a motion to concede to
the State's opposition.
22, 2012, the district court appointed counsel for Hall
because "a denial of Hall's motion under Rule 60(b)
may raise significant due process issues." With the
assistance of counsel, Hall filed a motion for relief from
judgment under Rule 60(b). Hall argued that applying the
district court's May 19, 2006 judgment dismissing his
petition prospectively was no longer equitable under Rule
60(b)(5), and that extraordinary circumstances existed under
district court granted Hall's motion under Rule 60(b)(6),
finding that extraordinary circumstances-an intervening
change in law, i.e., Sherrors v. Woodford-warranted
relief from judgment. The district court then concluded that
habeas relief was warranted based on the erroneous
instruction of CALJIC 2.15. The State appealed both the grant
of Rule 60(b)(6) relief and habeas relief.
Rule 60(b) Motion
district court's grant of relief from judgment under
Federal Rule of Civil Procedure Rule 60(b) is reviewed for
abuse of discretion. Casey v. Albertson's, Inc,
362 F.3d 1254, 1257 (9th Cir. 2004). "A district court
abuses its discretion if it does not apply the correct law or
if it rests its decision on a clearly erroneous finding of
material fact." Id. Any questions of law
underlying the district court's decision are reviewed de
novo. Jeff D. v. Kempthorne, 365 F.3d 844, 850-51
(9th Cir. 2004).
Rule 60(b), a district court may relieve a party from a final
judgment in certain circumstances. Fed.R.Civ.P. 60(b). In the
habeas context, Rule 60(b) applies to the extent that it is
not inconsistent with the Anti-Terrorism and Effective Death
Penalty Act ("AEDPA"). Gonzalez v. Crosby,
545 U.S. 524, 529 (2005) (citing 28 U.S.C. § 2254 Rule
11 and Fed.R.Civ.P. 81(a)(2)). AEDPA poses significant
hurdles for a Rule 60(b) petitioner, but "Rule 60(b) has
an unquestionably valid role to play in habeas cases."
Gonzalez, 545 U.S. at 534.
State argues that Hall's Rule 60(b) motion runs afoul of
three of AEDPA's provisions: (1) the bar on second or
successive petitions under 28 U.S.C. § 2244(b)(1); (2)
the one-year statute of limitations under 28 U.S.C. §
2244(d); and (3) the exhaustion rule under 28 U.S.C. §
2254(b). In addition, the State argues that the district
court abused its discretion by granting relief under Rule
60(b)(6). For the reasons discussed below, we disagree.
AEDPA's Bar on Second or Successive Petitions
AEDPA's second or successive petition provisions, any
claim that has been adjudicated in a previous petition must
be dismissed. 28 U.S.C. § 2244(b)(1). The State argues
that Hall's Rule 60(b) motion is a disguised successive
habeas petition that asserts a previously adjudicated claim
and therefore the district court should have dismissed it
pursuant to § 2244(b)(1).
there is no bright-line rule for distinguishing between a
bona fide Rule 60(b) motion and a disguised second or
successive habeas petition, the Supreme Court's decision
in Gonzalez v. Crosby informs our analysis. See
Jones v. Ryan, 733 F.3d 825, 834 (9th Cir. 2013). In
Gonzalez, the district court dismissed
Gonzalez's habeas petition as untimely, and the Eleventh
Circuit Court of Appeals denied a certificate of
appealability. 545 U.S. at 527. After a change in law
regarding the statute of limitations, Gonzalez filed a Rule
60(b) motion challenging the district court's dismissal.
Id. Both the district court and the Eleventh Circuit
ruled that Gonzalez could not seek Rule 60(b) relief because
the motion was a disguised second or successive petition.
Id. at 528. The Supreme Court disagreed. The Court
held that Gonzalez's Rule 60(b) motion challenged the
district court's earlier ruling on a non-merits aspect of
the proceedings-statute of limitations-and therefore it was
not equivalent to a successive habeas petition. Id.
according to Gonzalez, a bona fide Rule 60(b) motion
"attacks, not the substance of the federal court's
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings."
Id. at 532. In contrast, a second or successive
habeas corpus petition "is a filing that contains one or
more 'claims, '" defined as "asserted
federal bases for relief from a state court's judgment of
conviction." Id. Put another way, "if
neither the motion itself nor the federal judgment from which
it seeks relief substantively addresses the federal grounds
for setting aside the movant's ...