Redd v. Guerrero

84 F.4th 874

Stephen Moreland REDD, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Patricia GUERRERO, Chief Justice of California; Kimberly Menninger,Judge of the Superior Court of California, County of Orange, et al.,^* Defendants-Appellees.

No. 21-55464

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 11, 2022 Portland, Oregon

Filed October 20, 2023

Appeal from the United States District Court for the Central District of California, Dolly M. Gee, District Judge, Presiding, D.C. No. 2:16-cv-01540-DMG-PJ

Karim J. Kentfield (argued), Paul D. Meyer, and Lillian J. Mao, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Mark S. Davies, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Ronald A. McIntire and Taylor R. Russell, Perkins Coie LLP, Los Angeles, California; for Plaintiff-Appellant.

Raymond A. Cardozo (argued) and Brian A. Sutherland, Reed Smith LLP, San Francisco, California; Kasey J. Curtis, Reed Smith LLP, Los Angeles, California; for Defendants-Appellees.

Before: Marsha S. Berzon, Richard C. Tallman, and Morgan Christen, Circuit Judges.

OPINION

BERZON, Circuit Judge:

In 1997, a California court sentenced appellant Stephen Moreland Redd to death. That same year, the California legislature codified a longstanding judicial rule guaranteeing the appointment of postconviction relief counsel to indigent prisoners who had been convicted and sentenced to death. See Cal. Gov't. Code § 68662(a), added by Cal. Stats. 1997, ch. 869, sec. 3 (Senate Bill No. 513); see also Cal. Penal Code § 1509(b). Redd requested the appointment of postconviction habeas counsel 26 years ago. To this day, no lawyer has been appointed.

Redd filed this action under 42 U.S.C. § 1983, claiming that by failing to appoint counsel as promised and so preventing him from developing and prosecuting his state habeas corpus petition for over two decades, state officials are violating his procedural due process rights. He alleges that in the interim, "numerous witnesses" have died and other critical evidence has been lost or destroyed. The delay has "adversely affected his ability" to present claims that both "his conviction and [his] death sentence are unlawful." By undermining his ability to move forward with his state habeas case, the delay has prevented him from challenging his conviction in a federal habeas petition. He seeks a declaration that state officials' "failure to timely appoint counsel is in violation" of his due process rights. The district court dismissed his complaint for failure to state a claim.

Our central question is whether, based on the circumstances alleged in Redd's complaint, it is legally plausible that he will be able to establish that his 26-year wait for appointed counsel to litigate his habeas petition violates the Due Process Clause. California is under no federal constitutional obligation to appoint postconviction counsel for all indigent capital prisoners. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). But because California has guaranteed the appointment of such counsel by statute, we conclude Redd has stated a viable due process claim by alleging that he has been deprived of a valuable property interest for over a quarter century. As for Redd's claim that the state has failed to adequately protect his liberty interest in petitioning for habeas corpus, we conclude that his complaint as presently drafted does not plausibly state such a claim. Because his property interest claim is legally plausible, we reverse the district court's dismissal of Redd's complaint.

I. Background

A. California's Habeas System

To obtain relief from a criminal conviction in California, "resort to habeas corpus is . . . required" whenever "reference to matters outside the record is necessary to establish that a defendant has been denied a fundamental constitutional right." In re Bower, 38 Cal. 3d 865, 872, 215 Cal.Rptr. 267, 700 P.2d 1269 (1985). Consequently, challenges to convictions based on evidence outside the trial record—including claims based on ineffective assistance of counsel, newly discovered evidence, or reliance on false evidence at trial (see Cal. Penal Code § 1473)—ordinarily can be brought only in postconviction habeas. See People v. Mendoza Tello, 15 Cal. 4th 264, 266, 62 Cal.Rptr.2d 437, 933 P.2d 1134 (1997); Bower, 38 Cal. 3d at 872, 215 Cal.Rptr. 267, 700 P.2d 1269. And because a prisoner generally must exhaust his claims in state court before presenting them in a federal habeas petition, exhaustion of the state's habeas process is usually a prerequisite to filing a federal habeas petition based on the same alleged constitutional violations. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b)(1)(A), (c).

Concomitantly, California law guarantees the right of "a person unlawfully imprisoned or restrained of their liberty" to challenge the lawfulness of their conviction by seeking habeas corpus relief in state court. Cal. Penal Code § 1473; see also Cal. Const., art. I, § 11; Cal. Penal Code § 1509. "If no legal cause is shown for [the] imprisonment or restraint," the court "must discharge" the habeas petitioner from the challenged custody or restraint. Cal. Penal Code § 1485. To permit federal habeas relief, a state habeas petition must ordinarily be filed within one year after a criminal judgment becomes final. See In re Morgan, 50 Cal. 4th 932, 939, 114 Cal. Rptr.3d 591, 237 P.3d 993 (2010). The reason is that a federal habeas petition is subject to a one-year limitations period, but that period is tolled as long as a state habeas petition is pending. See 28 U.S.C. § 2244(d)(1)(A), (d)(2).

As part of the right to seek habeas relief, California law guarantees the appointment of state habeas counsel for indigent death row prisoners. California Government Code section 68662 provides that the "superior court that imposed the sentence shall offer to appoint counsel to represent a state prisoner subject to a capital sentence for purposes of state postconviction proceedings" and "shall enter an order" appointing such counsel "upon a finding that the person is indigent and has accepted the offer to appoint counsel or is unable to competently decide whether to accept or reject that offer." Cal. Gov't Code § 68662(a) (emphasis added); see also Cal. Penal Code § 1509(b) ("After the entry of a judgment of death in the trial court, that court shall offer counsel to the prisoner as provided in Section 68662 of the Government Code.").¹

As amended in 2016, the California Penal Code imposes a duty on superior courts to conduct capital habeas review proceedings "as expeditiously as possible, consistent with a fair adjudication," and requires the superior courts to "resolve the initial petition within one year of filing unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition." Cal. Penal Code § 1509(f); see also Cal. Prop. 66, the Death Penalty Reform and Savings Act of 2016 (Gen. Elec. (Nov. 8, 2016) § 6).

Consistent with the statutory requirements that counsel be appointed "upon [the requisite] finding[s]" and that habeas petitions be determined expeditiously, the California Supreme Court has directed "expeditious appointment" of habeas counsel in capital cases "to investigate potential claims for relief and to prepare a habeas corpus petition at roughly the same time that appellate counsel is preparing an opening brief on appeal." Morgan, 50 Cal. 4th at 937, 114 Cal.Rptr.3d 591, 237 P.3d 993. To achieve this goal, said the court, habeas counsel "[i]deally" should be appointed "shortly after an indigent defendant's judgment of death." Id. Similarly, the California Supreme Court's policies concerning capital cases provide that counsel should be appointed "simultaneously with the appointment of appellate counsel or at the earliest practicable time thereafter." Cal. Sup. Ct., Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 2-1 (amended Feb. 4, 1998), https://www.courts.ca.gov/documents/Policies_Regarding_Cases_Arising_from_Judgments_of_Death.pdf; see also id. Policy 3, std. 1-1.1 (amended Nov. 30, 2005).

Once capital habeas counsel is appointed, a petition must generally be filed within one year of the appointment. Cal. Penal Code § 1509(c). But because many capital prisoners, like Redd, in actuality wait years for the appointment of habeas counsel, the California Supreme Court has a "practice of deferring consideration of cursory habeas petitions filed by unrepresented defendants," recognizing that so long as the petitions remain pending, the one-year limitations period for federal habeas petitions is tolled. Morgan, 50 Cal. 4th at 937-39 & n.5, 941, 114 Cal.Rptr.3d 591, 237 P.3d 993. Once appointed, counsel may investigate the prisoner's claims and then amend the "shell petition." Id. at 941, 942, 114 Cal.Rptr.3d 591, 237 P.3d 993.

In contrast to California law mandating the appointment of postconviction counsel for indigent capital prisoners, there is no federal constitutional right to habeas counsel. Finley declined to recognize a constitutional right to counsel for prisoners mounting collateral attacks on their convictions. 481 U.S. at 555, 107 S.Ct. 1990. Murray extended Finley to capital prisoners, concluding that due process does not itself require the assistance of counsel in postconviction proceedings for individuals sentenced to death. 492 U.S. at 10, 109 S.Ct. 2765. And Coleman, another capital case, cited Finley for the proposition that "[t]here is no constitutional right to an attorney in state post-conviction proceedings," but left open the question of...