Blair v. Woodford

Filing

FILED OPINION (STEPHEN R. REINHARDT, SUSAN P. GRABER and JOHNNIE B. RAWLINSON) DISMISSED in part and AFFIRMED in part. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [7826029]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES NELSON BLAIR,
Petitioner-Appellant,
v.
MICHAEL MARTEL, Warden,
California State Prison at San
Quentin,
Respondent-Appellee.





No. 01-99003
D.C. No.
CV-99-06859MRP-MC
OPINION

Appeal from the United States District Court
for the Central District of California
Mariana R. Pfaelzer, Senior District Judge, Presiding
Argued and Submitted
May 12, 2011—Pasadena, California
Filed July 20, 2011
Before: Stephen Reinhardt, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber

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COUNSEL
Statia Peakheart and C. Pamela Gomez, Deputy Federal Public Defenders, Los Angeles, California, for the petitionerappellant.
A. Scott Hayward, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.

OPINION
GRABER, Circuit Judge:
Petitioner James Nelson Blair seeks a writ of habeas corpus. He argues that the California Supreme Court’s delay in
resolving the direct appeal from his murder conviction and
death sentence denied his right to due process under the Fourteenth Amendment. Because no Supreme Court decision
clearly establishes such a right, we affirm the denial of the
writ.
I.

Background

We described the facts that led to Petitioner’s conviction
and sentence in an earlier published order, and we will not
repeat those facts here. Blair v. Woodford, 319 F.3d 1087 (9th
Cir. 2003). That order stayed our consideration of Blair’s
habeas claim pending the outcome of Blair’s direct appeal to
the California Supreme Court, which by that point had finally
begun. Id. at 1088-89. In 2005, the California Supreme Court
rendered its decision affirming Blair’s conviction and sentence in full. People v. Blair, 115 P.3d 1145 (Cal. 2005). We
then resumed our proceedings.

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In a motion filed with us in 2005, while Petitioner’s appeal
from the district court’s denial of his petition was pending,
Petitioner asked for a hearing to determine whether he was
competent to continue pursuing habeas relief. See Rohan ex
rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003) (holding
that a death-sentenced state prisoner has a right to a competency determination in federal habeas proceedings). In an
unpublished order, we remanded the case to the district court
for the limited purpose of conducting a competency hearing,
and the district court since has determined that Petitioner is
competent. Petitioner now challenges that decision as clearly
erroneous.
In the meantime, we decided a habeas claim similar to Petitioner’s in Hayes v. Ayers, 632 F.3d 500, 523 (9th Cir. 2011),
where we held that no clearly established Supreme Court precedent recognizes a due process right to a speedy appeal. The
state asks us to affirm the denial of the writ in this case, arguing that Hayes forecloses relief as a matter of law. For the reasons given below, we dismiss in part and affirm in part.
Discussion1

II.
A.

The district court erred when it placed the burden on
Petitioner to prove his incompetence.

[1] We begin with the competency issue. We addressed the
right of a death-sentenced state prisoner to be competent during his federal habeas proceeding in Gates, 334 F.3d at 80717 and held that prisoners indeed enjoy such a right under the
statute granting them the services of counsel, id. at 817.
Unless such a prisoner “has the capacity to understand his
position and to communicate rationally with counsel,” the dis1

We review a district court’s competency determination for clear error,
Comer v. Schriro, 480 F.3d 960, 962 (9th Cir. 2007) (en banc) (per
curiam), and review de novo the district court’s denial of a petition for
habeas relief, Hayes, 632 F.3d at 507.

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trict court must stay habeas proceedings until the prisoner
regains that capacity. Id. at 819.
The parties do not dispute Petitioner’s right to be competent while his habeas petition is adjudicated. But they do dispute the proper procedures for determining Petitioner’s
competence. In particular, they quarrel about who bears the
burden of proving their respective points—whether Petitioner
bears the burden of proving his incompetence, or the state
bears the burden of proving Petitioner’s competence.
Petitioner relies for his position on our opinion in Mason
ex rel. Marson v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993),
which involved a death-sentenced state prisoner who wanted
to abandon his federal habeas petition during the course of
those proceedings. His lawyer challenged his competency to
do so. Id. at 1224. The district court convened a competency
hearing and found that the petitioner competently had decided
to withdraw his habeas petition. Id. The issue then came to us
on appeal. Of the procedures to be used in determining someone’s competence during habeas proceedings, we wrote:
When a habeas petition has been filed in the federal
district court, appropriately invoking the court’s
jurisdiction and the mental competency of the petitioner is reasonably questioned, it is the obligation of
the court to determine the petitioner’s mental competence. Initially sufficient evidence must be presented
to cause the court to conduct an inquiry. After that
point it is no one’s burden to sustain, rather it is for
the court to determine by a preponderance of the evidence whether the petitioner is mentally competent
to withdraw his petition.
Id. at 1225. Applying Mason here, the question for the district
court would be whether a preponderance of the evidence
established Petitioner’s competence. If it did not, then Mason
compels a finding of incompetence.

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[2] As the state points out, however, that direction differs
from Congress’ instructions with respect to competency hearings held during federal criminal trials. Under 18 U.S.C.
§ 4241(d), a district court must find a criminal defendant
incompetent when “the court finds by a preponderance of the
evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent.”
Those instructions apply “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement
of probation or supervised release and prior to the completion
of the sentence.” Id. § 4241(a). Using Congress’ rule, the
question for the district court would be whether a preponderance of the evidence established Petitioner’s incompetence.
Otherwise, § 4241(d) compels a finding of competence.
[3] The district court chose to apply the competency standard for federal criminal trials, rather than the standard
required by Mason for habeas petitioners and put Petitioner to
the task of proving his incompetence. Finding this “a close
case” in which “[c]onsideration of the standard and burden
. . . is of great consequence,” the court decided that Petitioner
failed to carry his burden and found him to be competent. We
cannot agree with its decision to apply the standards in
§ 4241(d). By its own terms, § 4241 does not apply unless a
federal criminal defendant is on trial or is released on probation. Petitioner has been convicted and sentenced in state
court. He has not been released on probation or otherwise. As
Petitioner’s circumstances plainly do not fall within the terms
of § 4241(a), the procedures in § 4241(d) do not apply. The
district court erred when it held otherwise.
The state nevertheless urges us to confine Mason to its
facts. According to the state’s reading of Mason, we spoke
only to the situation in which a possibly incompetent petitioner decides to abandon a habeas petition. That is, the state
argues, Mason says nothing about a situation in which a possibly incompetent petitioner initiates or continues to pursue a

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habeas petition. That reading leaves us free, according to the
state, to adopt the well-reasoned standards set out in § 4241,
even if Congress did not intend for § 4241 to apply in these
particular circumstances.
We find the state’s reading of Mason to be unduly narrow.
Although Mason addressed a petitioner who wanted to abandon his petition, we did not qualify our holding to that limited
situation. To the contrary, we framed our holding broadly,
referring to any time “[w]hen a habeas petition has been filed
in the federal district court, appropriately invoking the court’s
jurisdiction.” Mason, 5 F.3d at 1225. And we understood that
our formulation of the burden of proof in the habeas context
differed from the permissible burden in the context of a criminal trial, in which the Supreme Court has upheld a state’s
decision “to place upon the party claiming incompetence the
burden of proving by a preponderance of the evidence that the
defendant is incompetent.” Id. (citing Medina v. California,
505 U.S. 437 (1992)). Despite that difference, we thought that
our formulation of the burden better fit the special context of
federal habeas proceedings.
[4] In addition to noting the fact that the text of our holding in Mason applies in the present context, we observe that
the logic of Mason applies here as well. Petitioner’s decision
to start or continue a federal habeas case is essentially equivalent to a decision to withdraw a federal habeas case, once
begun; similarly, determining which claims to bring in a
habeas petition and which to leave out requires no less competency than determining whether to withdraw a habeas petition. The same competency rule logically extends to both.
[5] We therefore hold that, when deciding whether Petitioner possessed the mental competence required under Gates,
the district court had to use the procedure and apply the burden of proof that we prescribed in Mason. Not having done
so, the court erred.

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B.

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Nonetheless, in the circumstances, we need not remand
the competency issue.

In the usual case, we would reverse an erroneously analyzed competency determination and remand the matter so
that the court could apply the correct legal standard to the evidence. See generally San Diego Police Officers’ Ass’n v. San
Diego City Emps.’ Ret. Sys., 568 F.3d 725, 741 (9th Cir.
2009) (recognizing that, when reviewing for clear error, we
usually must reverse if the district court applied incorrect
legal standards to reach its findings). Here, however, we need
not reverse and remand because, for the reasons that we discuss below, even if we assume Petitioner’s incompetence, it
cannot matter to the outcome of this appeal on the sole legal
issue presented.
In Gates, 334 F.3d at 807-17, we surveyed the common
law, Supreme Court precedents, federal statutes, and our own
case law, looking for guidance on whether a right to competence exists for a capital habeas petitioner. In each of those
places, we saw a common concern: that a condemned prisoner
may, even after trial, “ ‘allege[ ] something in stay of judgment or execution.’ ” Id. at 808 (quoting 4 William Blackstone, Commentaries *24-25 (1769)). That concern explains
the importance of having adequate post-conviction proceedings, which, we observed in Gates, have come to subsume
other traditional means of giving voice to capital prisoners’
claims. Id. at 811.
We also observed that Congress has acknowledged the
importance of adequate post-conviction review by providing
a right to counsel to all capital prisoners who challenge their
convictions or sentences in federal court. See McFarland v.
Scott, 512 U.S. 849, 859 (1994) (“Congress has recognized
that federal habeas corpus has a particularly important role to
play in promoting fundamental fairness in the imposition of
the death penalty.”). In light of those observations, we reasoned that, “if meaningful assistance of counsel is essential to

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the fair administration of the death penalty and capacity for
rational communication is essential to meaningful assistance
of counsel, it follows that Congress’s mandate cannot be
faithfully enforced unless courts ensure that a petitioner is
competent.” Gates, 334 F.3d at 813.
[6] But that rationale only goes so far. When the law forecloses a petitioner’s habeas claim no matter what arguments
he might make, we see no benefit that could come from the
petitioner’s communications with his lawyer, rational or otherwise. For that reason, we qualified our holding in Gates to
circumstances in which a capital habeas petitioner “raises
claims that could potentially benefit from his ability to communicate rationally.” Id. at 819. We therefore hold that,
whether a habeas petitioner has the competence to assist his
lawyer or not, a habeas petition raising only claims for relief
that fail as a matter of law must be denied. In those circumstances, a district court has no obligation to inquire into the
petitioner’s competency, even if some evidence suggests that
the petitioner may be incompetent.2 We therefore need not
remand the competency issue here, even though the district
court applied an incorrect legal standard.
C.

Because no Supreme Court case clearly establishes a
due process right to a speedy appeal, Petitioner’s
habeas claim must be denied.

We turn, finally, to the merits of Petitioner’s habeas claim.
When this appeal began, Petitioner alleged that he was being
denied due process by the California Supreme Court’s delay
in processing his direct appeal. He asked that we order that
court to give him the appellate process due him under California law. In making that request, Petitioner raised two distinct
claims. The first alleged a present harm: The delay that he
2

At the time we remanded this case for a competency determination, in
2005, Hayes lay six years in the future and the law was in flux. Were the
same situation to arise today, no remand would be required.

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was experiencing amounted to a deprivation of his statecreated right to an appeal. The second alleged a future harm:
The delay would cause prejudice in the future to his ability to
secure a reversal of his conviction on appeal, or a fair trial on
remand. We take each of those claims in turn.
1.

The Request for an Order to Speed Up Petitioner’s
State Appeal

[7] We dismiss this claim for two independent reasons.
First, the claim became moot when the California Supreme
Court heard and decided Petitioner’s appeal on the merits. We
cannot now order that court to do something faster that it has
done already. See generally Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs
while a case is pending on appeal that makes it impossible for
the court to grant any effectual relief whatever to a prevailing
party, the appeal must be dismissed.” (internal quotation
marks omitted)).
Second, under current Supreme Court law, we lack habeas
jurisdiction to consider Petitioner’s request for an order compelling a state court to process his appeal. In two recent cases,
Wilkinson v. Dotson, 544 U.S. 74 (2005), and Skinner v. Switzer, 131 S. Ct. 1289 (2011), the Court has made clear that an
action brought under 42 U.S.C. § 1983 is the proper course
for a constitutional claim such as the one that Petitioner originally filed here. Those decisions distinguish between claims
that necessarily imply the invalidity of a conviction, which
must be brought in the context of a habeas petition, and
claims for constitutional violations that do not necessarily
spell speedier release and thus do not lie at the core of habeas
corpus, which may be brought, if at all, under § 1983. Skinner, 131 S. Ct. at 1298-99 & n.13.
[8] Under Skinner in particular, a prisoner, like Petitioner,
who wants to compel the processing of an appeal to which
state law entitles him, may not file a habeas petition to obtain

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that result. A due process claim of that sort does not “necessarily imply the invalidity of [a] conviction.” Id. at 1298
(emphasis added). In fact, it says nothing about the validity of
the conviction because it raises an issue of process, not substance. Neither does the claim “necessarily spell speedier
release,” id. at 1299 n.13 (emphasis added), because, as happened here, the state court might affirm the prisoner’s conviction and sentence, leaving him in custody. We therefore
conclude that a request for an order directing a state court to
hasten its consideration of an appeal belongs in a § 1983 complaint, not a habeas petition.3
Because we lack jurisdiction over Petitioner’s first claim,
we dismiss it.
2.

The Due Process Claim

The second claim brings us to the heart of Petitioner’s case.
Petitioner argues that the California Supreme Court unreasonably applied federal law when it rejected his claim that the
delay in his direct appeal violated his due process right under
the Fourteenth Amendment. See Blair, 115 P.3d at 1190-91
(rejecting Petitioner’s claim that the delay in processing his
direct appeal violated his federal constitutional rights).
[9] Under the now familiar provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), we
may not grant a writ of habeas corpus unless the state court’s
decision under review was “contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). As an initial matter, Petitioner argues
that § 2254(d) does not apply to his petition because the California Supreme Court did not adjudicate Petitioner’s exces3

We express no view on the merits of such a § 1983 claim or on what
relief, if any, might be available if the claim were pleaded in the proper
place and at the proper time.

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sive delay claim “on the merits” when he first brought this
claim to the California Supreme Court’s attention in a petition
for state habeas relief filed in 1998, while his direct appeal
was pending. See Harrington v. Richter, 131 S. Ct. 770, 780
(2011) (recognizing that § 2254(d), by its own terms, applies
only to “claims previously ‘adjudicated on the merits’ in
state-court proceedings”). The court denied that petition in a
brief but vague order. We need not decide whether that order
demonstrates that the court decided Blair’s due process claim
“on the merits,” however, because Blair’s appellate-delay
claim clearly was “adjudicated on the merits in State court
proceedings” in 2005, when the California Supreme Court
considered the issue among Blair’s other grounds for appeal.
28 U.S.C. § 2254(d); see Blair, 115 P.3d at 1190-91. That
state-court decision suffices to trigger AEDPA’s standard of
review here.
[10] Because § 2254(d) applies, our recent decision in
Hayes forecloses relief on Petitioner’s due process claim. In
Hayes, 632 F.3d at 523, we addressed strikingly similar circumstances. The petitioner’s appointed lawyers took eleven
years to file the petitioner’s direct appeal in the California
Supreme Court: four years to complete the record, at least two
years to work on the brief, and another five years of unexplained delay. The petitioner sought federal habeas relief,
arguing that “the nearly eleven-year delay between his sentencing and the filing of his opening brief on direct appeal . . .
violated his right to due process on appeal.” Id. We rejected
that claim under § 2254(d), holding that “no clearly established Federal law, as determined by the Supreme Court of
the United States recognizes a due process right to a speedy
appeal.” Id. (internal quotation marks omitted).
That holding is the law of this circuit. Because no Supreme
Court decision clearly establishes the right that Petitioner
claims California violated, AEDPA requires that we deny the
remainder of his habeas petition.
DISMISSED in part and AFFIRMED in part.