Spears v. Stewart

Page 1026

267 F.3d 1026 (9th Cir. 2001)

ANTHONY MARSHALL SPEARS, PETITIONER-APPELLEE, v. TERRY STEWART, DIRECTOR OF THE ARIZONA DEPARTMENT OF CORRECTIONS, OPINION RESPONDENT-APPELLANT.

No. 01-99000

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 13, 2001--San Francisco, California

Filed September 24, 2001

NOTE: SEE AMENDED OPINION OF MARCH 20, 2002.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Counsel Monica Beerling Klapper, Assistant Attorney General, Phoenix, Arizona, for the respondent-appellant.

Sylvia J. Lett and Dale A. Baich, Assistant Federal Public Defenders, Phoenix, Arizona, for the petitioner-appellee.

Julie S. Hall, Tucson, Arizona, for amici curiae.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding D.C. No. CV-00-01051-PHX-SMM

Before: James C. Hill,^* Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

Graber, Circuit Judge

OPINION

In this interlocutory appeal, we have agreed to answer the following question: "whether Arizona, as of July [17], 1998,¹ qualified to opt-in to Chapter 154, Special Habeas Corpus Procedures in Capital Cases, 28 U.S.C. §§ 2261- 2266," a part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We hold that Arizona's mechanism for the appointment of counsel for indigent capital defendants in state post-conviction proceedings met the requirements of Chapter 154 and, accordingly, qualified for opt-in status as of that date. However, we also hold that Arizona is not entitled to enforce the procedures of Chapter 154 in this case, because it did not comply with the timeliness requirement of its own system with respect to Petitioner.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Anthony Marshall Spears was convicted of first- degree murder and theft and was sentenced to death in 1992. The Arizona Supreme Court affirmed Petitioner's convictions and sentence on direct appeal on January 4, 1996. The Supreme Court of the United States denied certiorari on November 4, 1996. The Arizona Supreme Court neither issued a mandate nor appointed post-conviction counsel at that time, because no willing and qualified lawyers were available to serve.

Petitioner filed his first federal habeas petition pro se on April 11, 1997. He was concerned that his delay in initiating state-court collateral proceedings would affect adversely his ability to seek federal habeas relief. The district court consolidated Petitioner's case with those of 16 other Arizona capital defendants. On March 5, 1998, the court dismissed all the applications for federal habeas relief, without prejudice, for failure to exhaust state remedies. The court also held that none of the limitations periods was running with respect to the capital defendants.

On August 22, 1997, almost a year and eight months after the Arizona Supreme Court had affirmed Petitioner's conviction and sentence, and about ten months after the Supreme Court of the United States had denied certiorari, the Arizona Supreme Court issued the mandate in Petitioner's case and appointed Jess Lorona as Petitioner's counsel for state post- conviction proceedings. On November 26, 1997, the Arizona Supreme Court granted Lorona's motion to withdraw, at the same time recalling the mandate in Petitioner's case. On July 17, 1998, the court re-issued the mandate in Petitioner's case and, again, appointed Lorona as counsel for Petitioner.

Petitioner filed his petition for state post-conviction relief on January 28, 1999, 195 days after Lorona was re-appointed. The Arizona trial court denied the petition. On May 23, 2000, the Arizona Supreme Court denied Petitioner's petition for review. Two days later, it issued the warrant for his execution.

Petitioner filed the habeas petition underlying this interlocutory appeal on June 1, 2000. The next day, the district court granted Petitioner's application for a stay of execution. Respondent Terry Stewart, Director of the Arizona Department of Corrections, moved to dismiss the petition as untimely, arguing that Arizona is an "opt-in" state under 28 U.S.C. § 2261 and that Petitioner's petition was time-barred by the 180-day limitations period in 28 U.S.C. § 2263. The court denied Respondent's motion, holding that Arizona's mechanism for the appointment of counsel in capital cases failed to meet the criteria of § 2261.² The district court certified an interlocutory appeal to this court to review its determination that Arizona failed to qualify as an opt-in state at the time counsel was appointed for Petitioner.

STANDARD OF REVIEW

We review de novo the district court's legal conclusions concerning compliance with Chapter 154 of AEDPA. Ashmus v. Woodford, 202 F.3d 1160, 1164 (9th Cir.), cert. denied, 531 U.S. 916 (2000). We review the district court's factual findings for clear error. Id.

DISCUSSION

1. Whether Arizona's Mechanism for the Appointment of Post-Conviction Counsel for Indigent Capital Defendants Complied with 28 U.S.C. § 2261 as of July 17, 1988

A. Chapter 154 of AEDPA

Chapter 154 of AEDPA provides a state with procedural benefits in federal habeas cases filed by capital defendants if the state has "opted in" to its provisions. 28 U.S.C. §§ 2261-2266; Ashmus, 202 F.3d at 1163. A state with a postconviction procedure can opt in by establishing a system for the appointment of counsel to represent capital defendants in state post-conviction proceedings.³ 22 U.S.C. § 2261; Ashmus, 202 F.3d at 1162 n.3. That system must (1) be established by a "statute, rule of its court of last resort, or by another agency authorized by State law," 28 U.S.C. § 2261(b); (2) "offer counsel to all State prisoners under capital sentence," § 2261(c); (3) compensate counsel and pay reasonable litigation expenses, § 2261(b); (4) contain standards of competency for appointed counsel in the statute or court rule,§ 2261(b); and (5) provide for the entry of a court order that (a) appoints counsel upon finding either that the defendant is indigent and accepts the offer of counsel or that the defendant is unable competently to accept or reject the offer, § 2261(c)(1); (b) finds that the defendant declined the offer of counsel with an understanding of its legal consequences, § 2261(c)(2); or (c) denies the appointment of counsel upon finding that the defendant is not indigent, § 2261(c)(3).

A state with a qualifying system for the appointment of counsel receives procedural benefits under Chapter 154. 28 U.S.C. §§ 2263, 2266; Ashmus, 202 F.3d at 1163. First, a capital defendant must file a federal habeas petition within "180 days after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2263(a). ⁴ Second, the district court must render a decision on the habeas application within 180 days after the date it is filed, and the district court may not extend the period by more than 30 days. § 2266(b)(1)(A) & (b)(1)(C)(i). Third, the court of appeals must decide any appeal from the district court's decision within 120 days after briefing is completed. § 2266(c)(1)(A).

The petitioner receives the benefit of an automatic stay of execution. 28 U.S.C. § 2262. Upon receiving the order granting or denying counsel under a system in compliance with § 2261, the petitioner may apply to any federal district court for an automatic stay of execution, which remains in place throughout all state-court collateral proceedings and federal collateral proceedings, provided that the petitioner meets all other procedural requirements. § 2262.

B. Arizona's System for the Appointment of PostConviction Counsel

Respondent contends that two statutes, Arizona Revised Statutes (ARS) §§ 13-4041 and 13-4013, and a rule of criminal procedure, Arizona Rule of Criminal Procedure (Rule) 6.8, together comprised a mechanism for the appointment of counsel that complied with the requirements of Chapter 154 as of July 17, 1998. The Arizona legislature and supreme court promulgated ARS § 13-4041 and Rule 6.8 with the express intention of complying with Chapter 154. ⁵

The relevant portions of ARS § 13-4041, which were in effect on July 17, 1998, provided:⁶

B. After the supreme court has affirmed a defendant's conviction and sentence in a capital case, the supreme court, or if authorized by the supreme court, the presiding judge of the county from which the case originated shall appoint counsel to represent the capital defendant in the state post-conviction relief proceeding. Counsel shall meet the following qualifications:

1. Membership in good standing of the state bar of Arizona for at least five years immediately preceding the appointment.

2. Practice in the area of state criminal appeals or post-conviction proceedings for at least three years immediately preceding the appointment.

3. No previous representation of the capital defendant in the case either in the trial court or in the direct appeal, unless the defendant and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation.

C. The supreme court shall establish and maintain a list of qualified candidates. In addition to the qualifications prescribed in subsection B of this section, the supreme court may establish by rule more stringent standards of competency for the appointment of post-conviction counsel in capital cases. The supreme court may refuse to certify an attorney on the list who meets the qualifications established under subsection B of this section or may remove an attorney from the list who meets the qualifications established under subsection B of this section if the supreme court determines that the attorney is incapable or unable to adequately represent a capital defendant. The court shall appoint counsel pursuant to subsection B of this section from the list.

D. Notwithstanding subsection C of this...