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Hall v. Haws

United States Court of Appeals, Ninth Circuit

July 3, 2017

Willard James Hall, Petitioner-Appellee,
F. W. Haws, Respondent-Appellant.

          Argued and Submitted October 19, 2015 Pasadena, California

         Appeal 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.

          Holly A. Sullivan and Robert H. Rexrode, San Diego, California, for Petitioner-Appellee.

          Before: Harry Pregerson and Consuelo M. Callahan, Circuit Judges and Stanley Allen Bastian, [*] District Judge.


         Habeas Corpus

         The 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.

         The 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.

         The 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 unconstitutional instruction.

         Judge 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 the state.


          PREGERSON, Circuit Judge:

         This is 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.

         On July 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.

         After 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.


         Here's 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 times.

         Nine 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.[1] 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.

         Although inconsistent at times, Hixon's testimony was the key to the prosecution's case. Here is Lena Hixon's story:

         On 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.

         After 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.

         Then, 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.

         Katherine 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.

         The 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.

         Crucial to the federal habeas appeal before us now, at the close of trial, the state jury was instructed on CALJIC 2.15, which states:

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.

         On July 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.


         On July 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.

         On 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.

         Because 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.

         Meanwhile, 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.

         On May 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 Sherrors.

         Within 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.

         On May 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 Rule 60(b)(6).

         The 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.


         I. Rule 60(b) Motion

         A 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).

         Under Rule 60(b), a district court may relieve a party from a final judgment in certain circumstances.[2] 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.

         The 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.

         A. AEDPA's Bar on Second or Successive Petitions

         Under 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).

         While 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. at 533-34.

         Thus, 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 ...

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