Metropolitan News-Enterprise


Tuesday, August 9, 2016


Page 1


Ninth Circuit Denies Relief to Defendant Whose Sentence Was Increased After Trial


By a MetNews Staff Writer


A woman convicted of first degree murder after successfully challenging her earlier plea of guilty to second degree murder is bound by her own choices and not entitled to habeas corpus relief, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed the denial by U.S. District Judge Andrew J. Guilford of the Central District of California of Candace L. Fox’s petition. Fox, who has served more than 30 years of a life sentence without the possibility of parole, was seeking to enforce a plea agreement she claims would have made her eligible for parole after seven and a half years.

“We refuse Fox’s request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement,” Judge N. Randy Smith wrote for the appeals court. “She therefore has no due process right to specific performance of the rescinded agreement.”

Fox, a onetime manicurist who lived in Canoga Park, was convicted of the murder of Lewis Levy, a crime that she and three friends allegedly planned while sitting around the swimming pool at her housing complex.

According to testimony, Fox’s roommate, Janet Meyer, mentioned that Levy owed her money for sexual services, and that he kept thousands of dollars in travelers’ checks in his apartment. The group decided to rob and kill Levy and use the proceeds to buy cocaine.

After Scott Peters struck Levy over the head with the barrel of a gun, and failed in two attempts to stab him, the group left him semiconscious on the ground while Meyer and Eddie Rangel went to get the drugs. After they returned, Levy was stabbed repeatedly by Meyer with a Swiss Army knife, and struck over the head with a beer bottle by Fox, as Peters attempted to strangle him with a phone cord.

A tip led to the questioning of Meyer, who disclosed the location of the body. Fox, charged with first degree murder with special circumstances of robbery and burglary, agreed to plead guilty to second degree murder and testify against Peters.

Following a preliminary hearing at which Fox testified for nearly five hours, Peters pled guilty to second degree murder. Meyer also pled guilty to second degree murder.

Fox was later sentenced to 15 years to life in prison, based on the plea agreement, which was not reduced to writing. During the course of the plea colloquy, her attorney told the judge “the People have indicated as part of the plea bargain that [Fox would] be looking at obtaining…parole…in seven and a half years,” the prosecutor said that was correct, and the judge responded “All right. Understand that?”

Fox sought habeas corpus relief in 1986, after being informed by prison officials she would not be eligible for parole for 10 years and would be subject to lifelong parole supervision. She argued that she understood the plea agreement to mean that she would be released after seven and a half years if she didn’t get in trouble in prison, and was not advised that she would be on lifelong parole following her release.

She eventually won a ruling in the Los Angeles Superior Court that the failure to advise her of the parole term rendered her plea voidable. She subsequently moved to enforce the purported plea agreement, or to preclude the court from trying her on a first-degree, rather than second-degree, murder charge.

That motion was denied, and she went to trial on the first degree murder charge of which she was convicted. Her subsequent appeals and habeas corpus petitions in state court were denied.

Smith, writing for the Ninth Circuit, said the state court rulings were not unreasonable and were entitled to deference. Fox, he noted, did not seek to enforce the purported plea agreement until after it was rescinded.

The outcome, he acknowledged, was “unfortunate,” because Fox, who cooperated, has would up serving a greater term than the defendants she testified against, and would have been better off if she had lost her habeas corpus petition. The judge, however, noting that she acted against advice of counsel in seeking relief, wrote that there was no precedent requiring the enforcement of the plea agreement.

Judge Andrew Hurwitz concurred. He said the case was “troubling,” but that Smith was correct on the law.

Judge Stephen Reinhardt dissented, arguing that due process requires Fox’s immediate release.

He wrote:

“In the thirty-odd years since Fox first sought to hold the State to its bargain, she has been failed by many people: the state prosecutors who abused her trust, the state judges who failed in their obligation to provide her with an appropriate remedy for the State’s broken promise, and the attorney who sought to ‘withdraw’ her plea rather than seek the remedy she had desired from the beginning—specific performance of her bargain. The majority, while purporting to recognize that this is an ‘unfortunate’ situation, concludes that it cannot provide Fox with a remedy due to the procedural posture of this case. While it comes as no surprise that my colleagues honestly believe that our habeas jurisprudence’s rigid adherence to procedural rules demands a result so antithetical to justice, I cannot in good conscience concur.

The case is Fox v. Johnson, 13-56704.


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