Kenny Thompson v. V. Almager

Filing

FILED OPINION (HARRY PREGERSON, RONALD M. GOULD and RICHARD C. TALLMAN) REVERSED AND REMANDED. Judge: RMG Authoring, Judge: RCT Dissenting. FILED AND ENTERED JUDGMENT. [8205215]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNY WARREN THOMPSON,
Petitioner-Appellant,
v.
MELISSA LEA, Chief Deputy
Administrator of the California
Out of State Correctional Facility
Unit,
Respondent-Appellee.




No. 09-55753
D.C. No.
2:08-cv-04290SJO-AGR
OPINION



Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
March 6, 2012—Pasadena, California
Filed June 7, 2012
Before: Harry Pregerson, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Tallman

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COUNSEL
Geoffrey M. Jones, Fairfax, California, for the petitionerappellant.
Rama R. Maline, Office of the California Attorney General,
Los Angeles, California, for the respondent-appellee.

OPINION
GOULD, Circuit Judge:
California state prisoner Kenny Warren Thompson appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition because of its conclusion that the petition was
time-barred. We have jurisdiction under 28 U.S.C. § 2253.
We reverse and remand.
[1] The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) sets a one-year limitations period in which a state
prisoner must file a federal habeas corpus petition. 28 U.S.C.
§ 2244(d)(1). The limitations period runs from “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A). The limitations period may be reset if a

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state court reopens direct review and a petitioner’s conviction
becomes “again capable of modification through direct appeal
to the state courts and to [the Supreme] Court on certiorari
review.” Jimenez v. Quarterman, 555 U.S. 113, 120 (2009).
Here, Thompson’s conviction initially became “final” on
July 11, 2006, ninety days after the California Supreme Court
denied his petition for review on direct appeal “without prejudice to any relief to which defendant [Thompson] might be
entitled after the United States Supreme Court determines in
Cunningham v. California . . . the effect of Blakely v. Washington[, 542 U.S. 296 (2004)] and United States v. Booker[,
543 U.S. 220 (2005)], on California law.” See Bowen v. Roe,
188 F.3d 1157, 1159 (9th Cir. 1999) (holding that AEDPA’s
one-year limitations period begins to run after ninety-day
period for seeking writ of certiorari in Supreme Court
expires). After the Supreme Court decided Cunningham v.
California, 549 U.S. 270 (2007), Thompson filed a motion in
the California Court of Appeal to recall the remittitur and
reinstate his appeal based on Cunningham. The court of
appeal denied the motion, but on May 23, 2007, the California
Supreme Court granted review of Thompson’s petition for
review of the court of appeal’s denial order, and deferred further action in the matter pursuant to California Rule of Court
8.512(d)(2).
[2] By granting review, the California Supreme Court
reopened direct review and made Thompson’s conviction
“again capable of modification through direct appeal.”1 Jime1

Having granted review, the California Supreme Court could have “affirm[ed], reverse[d], or modif[ied] the judgment of the Court of Appeal,”
or “order[ed] another disposition,” as it did in this case. See Cal. R. Ct.
8.528(a). The dissent’s position is based on a non-literal reading of the
California Supreme Court order that explicitly stated that review was
“granted” and that briefing and further action were deferred. In concluding
that the grant and hold order presented only the “possibility” that direct
review would be reopened, the dissent reads the order to mean, “We may

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nez, 555 U.S. at 120. Thompson’s conviction remained nonfinal “during the pendency of the reopened appeal” and became
“final” for purposes of § 2244(d)(1)(A) on December 11,
2007, ninety days after the California Supreme Court dismissed review on the merits, in light of its decision in People
v. Black, 161 P.3d 1130 (Cal. 2007).2 See id. at 120 & n.4;
Bowen, 188 F.3d at 1160; see also Cal. R. Ct. 8.528(b) advisory committee’s comment (explaining that “after the [California Supreme Court] decides a ‘lead’ case”—here, People
v. Black—“its current practice is to dismiss review in any
pending companion case (i.e., a ‘grant and hold’ matter under
[current Rule 8.512(d)]) that appears correctly decided in light
of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal”).3
grant review later, but for now we are just holding.” The dissent’s position
in this case would not advance “AEDPA’s goal of promoting comity,
finality, and federalism.” Jimenez, 555 U.S. at 121 (internal quotation
marks omitted). Rather than give California courts the first opportunity to
review Thompson’s Cunningham claim and “correct any constitutional
violation in the first instance,” the dissent would require Thompson to
have filed a federal habeas petition before the state proceedings had fully
run their course. See id. (internal quotation marks omitted). This is not a
reasonable reading of Jimenez and if the dissent’s interpretation were
accepted, it would encourage federal habeas corpus litigation in cases that
were not fully resolved in state court. After the California Supreme Court
granted review and held Thompson’s case, his conviction was “again
capable of modification through direct appeal.” See id. at 120.
2
In Black, the California Supreme Court held that “imposition of an
upper term sentence did not violate [the] defendant’s right to a jury trial,
because at least one aggravating circumstance was established by means
that satisfy Sixth Amendment requirements and thus made him eligible for
the upper term.” 161 P.3d at 1133, 1138-40 (rejecting defendant’s argument based on “Cunningham and its antecedents”).
3
The dissent argues that the California Supreme Court did not dismiss
review “on the merits,” stressing the “one-sentence summary dismissal of
112 petitions for review,” including Thompson’s. But on the same day that
the California Supreme Court dismissed review in Thompson’s and other
cases, it transferred 75 cases to the California Court of Appeal for reconsideration in light of People v. Black and People v. Sandoval, 161 P.3d

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Thompson’s federal habeas corpus petition, filed on June 30,
2008, was timely. See 28 U.S.C. § 2244(d)(1).
We reverse and remand to the district court to consider
Thompson’s habeas corpus petition on the merits.
REVERSED AND REMANDED.

TALLMAN, dissenting:
This appeal turns on how we interpret the effect of the California Supreme Court’s “grant and hold” order and its subsequent one-sentence order dismissing 112 petitions for review,
including Thompson’s motion to recall the remittitur.1
Because I do not interpret these orders as reopening direct
1146 (Cal. 2007). See News Release, Judicial Council of California,
Supreme Court Summary for the Week of September 10, 2007 (Sept. 12,
2007), http://www.courts.ca.gov/3012.htm; see also, e.g., People v.
Fluker, 169 P.3d 99 (Cal. 2007); People v. Diaz, 169 P.3d 97 (Cal. 2007);
People v. Scott, 169 P.3d 95 (Cal. 2007). Given that after holding a batch
of cases the California Supreme Court gave relief in some cases and not
others, it is a reasonable inference that the California Supreme Court considered the merits of each petition held for Black and Sandoval, concluded
that some cases were correctly decided in light of those decisions and that
others should be reconsidered by the California Court of Appeal, decided
on the merits that Thompson’s case fit in the former category, and dismissed review.
We take judicial notice of the California Supreme Court’s September
12, 2007 dispositions in light of Black and Sandoval because they directly
relate to this appeal. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir.
2011); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
1
The order listed 112 case names and numbers followed by the sentence: “In light of People v. Black (2007) 41 Cal. 4th 799, review in the
above-entitled matters is dismissed. (Cal. Rules of Court, rule
8.528(b)(1).).”

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review such that Thompson’s conviction and sentence were
“again capable of modification through direct appeal,” Jimenez, 555 U.S. at 120, I respectfully dissent.
The Supreme Court in Jimenez held that “where a state
court grants a criminal defendant the right to file an out-oftime direct appeal during state collateral review, but before
the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).” 555
U.S. at 121. The Court also reaffirmed that the mere “possibility that a state court may reopen direct review ‘does not
render convictions and sentences that are no longer subject to
direct review nonfinal.’ ” Id. at 120 n.4 (quoting Beard v.
Banks, 542 U.S. 406, 412 (2004)). In Jimenez, the Texas state
court had actually granted the petitioner the right to file an
out-of-time appeal, which he had filed in the Texas Court of
Criminal Appeals. Id. at 116. Upon full review in the appellate court, his conviction was affirmed. Id. Thompson argues,
and the majority erroneously agrees, that—based upon the
grant and hold order and the subsequent summary dismissal
of review Jimenez controls here, thus resetting the date his
conviction became final to December 11, 2007. See Opinion
at 6370-71.
Granting and holding Thompson’s motion to recall the
remittitur in order to decide whether his direct review should
be reopened while the state court of last resort awaited issuance of a United States Supreme Court decision in a related
case that could impact multiple petitions, however, only presented the mere “possibility” that direct review would be
reopened. Like the petitioner in Jimenez, Thompson requested
that the California Supreme Court recall the remittitur (akin
to our court recalling the mandate) and reinstate his direct
appeal so that he could present new arguments regarding the
effect of Cunningham v. California, 549 U.S. 270 (2007), on
his sentence. Unlike the Texas Court of Criminal Appeals
(that state’s court of last resort) however, the California
Supreme Court did not actually reinstate direct review.

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Thompson’s motion was not remanded to the California Court
of Appeal for decision on the merits and he was not allowed
to file a fully briefed out-of-time appeal.2 Instead, the California Supreme Court determined that neither Cunningham nor
People v. Black, 161 P.3d 1130 (Cal. 2007), entitled him to
a recall of the remittitur and reinstatement of his direct appeal.
Furthermore in Randle v. Crawford, 604 F.3d 1047,
1054-57 (9th Cir. 2010), in rejecting the argument that Jimenez applied to the Nevada Supreme Court’s denial of an outof-time appeal as untimely, we held that if the “one-year limitations period were made contingent on the resolution of a
petitioner’s attempt to file an untimely notice of appeal, a
petitioner could indefinitely delay the commencement of the
one-year period by simply waiting to file such notice until
after the normal expiration date.” Id. at 1055 (internal quotation marks omitted). Ultimately, the “narrow” holding in
Jimenez did not apply because the petitioner merely “sought
to restore his direct appeal, and that request was rejected by
the Nevada Supreme Court.” Id. at 116. And, “[a]lthough
[Petitioner] was entitled to present . . . the arguments that he
would have presented on direct appeal in his state postconviction relief proceeding, his direct appeal was not, and could not
be reinstated.” Id. Thompson similarly requested a second
chance in the California Court of Appeal, but the California
Supreme Court denied that request after the disposition in
Black, 161 P.3d 1130. Thus, his direct appeal was never
reopened and his sentence remained incapable of modification.
I further part company with my colleagues because I do not
interpret the one-sentence summary dismissal of 112 petitions
for review as dismissing each petition, and therefore Thomp2

Nor does it appear that Thompson’s motion was ever fully briefed
before the California Supreme Court, as briefing was deferred on May 23,
2007, and never ordered before the dismissal of his motion on September
12, 2007.

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son’s underlying claims, “on the merits” of the arguments he
would have made had the California Supreme Court truly
reinstated direct review. Nor can we infer from a one-sentence
order dismissing all of these petitions that the California
Supreme Court itself fully considered the underlying merits of
each case.
Indeed, we have been specifically instructed not to infer too
much from similar California Supreme Court summary
orders. See Evans v. Chavez, 546 U.S. 189, 198-99 (2006)
(reversing the Ninth Circuit’s determination that a California
Supreme Court order was on the merits when the order “was
silent on the grounds for the court’s decision”); Carey v. Saffold, 536 U.S. 214, 226 (2002) (“Given the variety of reasons
why the California Supreme Court may have included the
words ‘on the merits,’ those words cannot by themselves indicate that the petition was timely. And the Ninth Circuit’s
apparent willingness to take such words as an absolute bellwether risks the tolling of the federal limitations period even
when it is highly likely that the prisoner failed to seek timely
review in the state appellate courts.”).
The more plausible and likely reading of the one-sentence
order is that, in light of the holding in Black, 161 P.3d 1130,
the California Supreme Court dismissed Thompson’s review
because neither the motion to recall the remittitur nor the
record before the court showed that such extraordinary relief
of reopening direct review was warranted. Because Thompson
was never entitled to and indeed did not have his direct
review reinstated, Jimenez does not apply and the AEDPA
clock was not reset, rendering Thompson’s federal habeas
petition untimely.3I would therefore affirm the district court’s
dismissal of Thompson’s untimely petition.
3

The majority reaches beyond the record to take judicial notice of orders
transferring seventy-five cases to the California Court of Appeal for reconsideration, Opinion at 6371-72 n.3, to infer that the California Supreme
Court concluded, on the merits, that the 112-dismissed cases were cor-

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rectly decided and the 75-others should be reconsidered. I read this to support my position that the question the California Supreme Court confronted was whether reopening of direct review in a closed appeal was
warranted and by dismissing Thompson’s petition, the California Supreme
Court definitively answered “no.” Consideration of that question only
presented the possibility that direct review would be reopened. It would
have been a simple matter to timely file a Federal habeas corpus petition
and immediately ask the district court to stay and abate action pending resolution of the motion to recall the remittitur. See Rhines v. Weber, 544
U.S. 269, 277-79 (2005) (approving stay and abeyance procedure to allow
petitioner to exhaust claims in state court where good cause exists). This
Thompson did not do.