Fetterly v. Paskett

Page 1472

15 F.3d 1472

Donald Kenneth FETTERLY, Petitioner-Appellant, v. David PASKETT, Warden, Idaho State Prisons; and Jim Jones Attorney General of the State of Idaho Respondents-Appellees.

No. 90-35627.

United States Court of Appeals Ninth Circuit.

Jan. 24, 1994.

Amended March 8, 1994.

Prior Report: 997 F.2d 1295.

Before: SCHROEDER, LEAVY, and TROTT, Circuit Judges.

The panel has voted to deny appellees' petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35. Judges Kozinski, Hall, and Wiggins would grant the suggestion for rehearing en banc.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

KOZINSKI, Circuit Judge, with whom Circuit Judges HALL and WIGGINS join, dissenting from the order rejecting the suggestion for rehearing en banc:

The Supreme Court has told us in no uncertain terms that we may not delay federal habeas proceedings so the petitioner can litigate unrelated claims in state court. In re Blodgett, --- U.S. ----, ----, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992). Rather, our duty is "to take all steps necessary to ensure a prompt resolution of the matter...." Id.

The district judge here followed this prescription to the letter: He adjudicated expeditiously the claims Fetterly raised in his federal habeas petition and refused to stay proceedings to let Fetterly exhaust an unrelated claim in state court. On appeal, a panel of our court reverses. Without even a nod to Blodgett, the panel holds that the district judge abused his discretion by doing what the Supreme Court said he must do. Refusing to look at the claims actually decided by the district court, the panel holds the appeal in limbo so Fetterly can litigate a claim he did not raise and could not have raised in his habeas petition. As Yogi Berra is said to have said, it's deja vu all over again.

The panel's cold shoulder to Blodgett is but the first of many errors. The opinion also manages to ignore or misapply Estelle v. McGuire, --- U.S. ----, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). It's as if the panel figured that, since it was just remanding, it didn't need to get the law right. But such wholesale disregard of Supreme Court precedent has no place among the published opinions of the United States Court of Appeals. And, sure enough, the mischief spawned by this opinion has not been long in coming. Like Frankenstein's monster, its rationale has overtaken even its creator. Compare Hamilton v. Vasquez, slip op. 1515, --- F.3d ---- (9th Cir. Feb. 3, 1994) (majority opinion), with id. at 1551, at ---- (Trott, J., dissenting) (both opinions relying on Fetterly).

Moreover, this is a remand order with important substantive consequences: The state's right to prompt adjudication of the habeas petition is permanently impaired and petitioner is allowed to shoehorn into his first habeas petition a claim that wasn't ripe when he litigated his case in the district court. This is not a case, then, where errors committed now can be corrected later; the panel's opinion permanently compromises the law of the case and the law of the circuit. It is highly regrettable, therefore, that the full court has not seen fit to take the case en banc.

I

A decade ago, Donald Fetterly was convicted of the first degree murder of Sterling Grammer, an acquaintance of his ex-mother-in-law. After an aggravation and mitigation hearing two months later, an Idaho judge sentenced Fetterly to death. Applying the prevailing interpretation of Idaho's sentencing statute, the judge weighed the mitigating evidence against all the aggravating factors taken together (instead of against each aggravating factor separately). The sentencing judge found that the aggravating factors predominated. Fetterly appealed his death sentence to the Idaho Supreme Court, State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), and then filed a state request for post-conviction relief, State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988)--all without success.

In an unrelated case decided six years after Fetterly's conviction and sentencing, the Idaho Supreme Court held, as a matter of state law, that a sentencing judge must weigh all of the mitigating evidence against each aggravating factor separately. State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989).

Soon thereafter, Fetterly filed a federal habeas petition but failed to allege any error involving Charboneau; nor could he, having never raised the issue in state court. Some months later, Fetterly's new attorney became aware of Charboneau and filed a second state habeas petition, raising the issue and claiming Fetterly's trial counsel had been ineffective for failing to pursue it earlier. Fetterly also asked the district court to stay his federal habeas proceeding while he went about exhausting state remedies on the Charboneau issue. Fetterly no doubt wanted to keep the case in the district court so he could fold his Charboneau claim into his first federal petition, avoiding the cause and prejudice hurdle of McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

The district court refused to stay the case, Fetterly v. Paskett, 744 F.Supp. 966, 976 (D.Idaho 1990), proceeded to adjudicate the claims raised in Fetterly's petition, Fetterly v. Paskett, 747 F.Supp. 594 (D.Idaho 1990), and resolved them all against him. While the case was pending on appeal before us, the Idaho Supreme Court rejected Fetterly's Charboneau-based state habeas petition, holding that Fetterly's sentence was consistent with Idaho sentencing law at the time his conviction became final and refusing to apply Charboneau retroactively, Fetterly v. State, 121 Idaho 417, 825 P.2d 1073, 1075 (1991) ("[T]he Charboneau interpretation of I.C. Sec. 19-2515 does not apply to the present case because the present case was final prior to the issuance of Charboneau.").

Our panel does not deal with the substantive issues decided by the district court. Instead, it reverses the order denying Fetterly a stay of federal habeas proceedings while he was exhausting his Charboneau claim in state court. The panel remands for the district court to adjudicate Fetterly's newly exhausted claim, all the while keeping Fetterly's stay of execution firmly in place.

A. McCleskey, Rose, Blodgett Errors

In McCleskey v. Zant, the Supreme Court held that a state prisoner must raise all available claims in his first federal habeas petition. Claims raised in later petitions must be dismissed as an "abuse of the writ" unless the petitioner can show "cause and prejudice." McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1470. Fetterly did raise all of his available claims at the time he brought his federal petition, but later discovered another (his Charboneau claim) that he had not raised and could not raise because he hadn't yet exhausted it in state court: Had Fetterly amended his petition to add his Charboneau claim, the district court would have had to dismiss the entire petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Thus, at the time petitioner discovered his Charboneau claim (and the related ineffective assistance of counsel claim), he faced three unpalatable choices: He could raise the Charboneau claim in federal court, precipitating an immediate dismissal of the entire petition under Rose; he could wait and raise it as part of a successive petition, in which case it might be barred by McCleskey; and, finally, he could ask for dismissal of the first petition without prejudice so he could go exhaust his Charboneau claim, in which case he would lose his federal stay of execution, to which he was entitled only so long as his first petition was being adjudicated. See, e.g., Campbell v. Blodgett, 997 F.2d 512, 520 (9th Cir.1993) (stay of execution dissolved once federal petition dismissed).

Fetterly's only way out of this trilemma was to obtain a stay of the federal proceedings while he exhausted his Charboneau claim and the panel obliges. But, since when is a federal habeas petitioner entitled to put federal proceedings on hold while he finishes up his business in state court? A stay of federal habeas proceedings, after all, is also a stay of defendant's death sentence, impairing the state's legitimate interest in carrying out the sentence promptly. In re Blodgett, --- U.S. at ----, 112 S.Ct. at 676. This interference is justified only so long as the petitioner is busy litigating his federal claims; we have no authority to stay a death sentence while the petitioner is doing nothing at all in federal court.

The panel's ruling raises a troubling question: May a federal court drag out a stay of execution for no purpose other than to let petitioner pursue a claim that would require immediate dismissal of the petition if it were actually presented? The answer seems obvious to me: If the federal district court was without jurisdiction to consider Fetterly's Charboneau claim because it was yet unexhausted, it's an abuse of the writ--and a blatant end run around McCleskey and Rose--for the same court to maintain a stay of execution solely to support that claim. ¹

But we need not speculate; the Supreme Court has already given us the answer. In re Blodgett is materially indistinguishable from our case. The panel there effectively stayed federal proceedings on appeal while the petitioner exhausted various claims in state court....