Ninth Circuit Reinstates Inmate’s Suit Against Guerrero
Judge Berzon Says Man Who Has Waited 26 Years for Appointment of Habeas Counsel May Pursue Action for Declaratory Relief Under Federal Civil Rights Statute; Suit Was Suggested by Two Supreme Court Justices
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday ordered reinstatement of an action for declaratory relief brought by a death-row inmate against California Chief Justice Patricia Guerrero based on his request for the appointment of counsel to pursue relief in a habeas corpus proceeding having gone unheeded for 26 years.
The inmate, who is incarcerated in San Quentin, is Stephen Moreland Redd, a former Los Angeles County deputy sheriff who fatally shot a supermarket manager during the course of a robbery. He was sentenced to death by then-Orange Superior Court Judge Francisco P. Briseno in 1997.
His lawsuit, dismissed by District Court Judge Dolly M. Gee of the Central District of California, was suggested by two members of the U.S. Supreme Court. When the high court denied certiorari on Dec. 1, 2014 following Redd’s unsuccessful bid for habeas relief in the District Court, which the Ninth Circuit declined to review, Justice Sonia Sotomayor said in a statement, joined in by then-justice Stephen Breyer:
“I vote to deny the petition for certiorari because it is not clear that petitioner has been denied all access to the courts….[P]etitioner might seek to bring a 42 U. S. C. §1983 suit contending that the State’s failure to provide him with the counsel to which he is entitled violates the Due Process Clause.”
He did so on March 4, 2016, naming the California Supreme Court as the defendant. As it now stands, the defendants are Guerrero and Orange Superior Court Judge Kimberly Menninger.
Circuit Judge Marsha S. Berzon authored Friday’s opinion reversing the dismissal. The complaint is faulty, she said, inasmuch as it does not recite certain matters alleged on appeal—such as the allegation that filings by Redd, in pro per, have been rejected by the state courts because he had opted at the outset to have habeas counsel appointed—but that, on remand, re-pleading must be permitted.
“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….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.”
In her Oct. 3, 2017 order dismissing Redd’s complaint with prejudice, Gee said:
“Absent extraordinary circumstances, federal courts may not interfere with pending state court proceedings on constitutional grounds….This abstention avoids unnecessary friction in state-federal relations where federal court intervention could be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles….That is particularly the case here where Plaintiffs claim is that his federal due process rights are being violated by the California Supreme Court’s interpretation of California law. It is not within this Court’s purview to tell the California courts how to interpret California law, or how to manage their caseloads. Indeed, this Court is bound by the decisions of the California Supreme Court on matters of California law.”
The defendants argued in opposition to the appeal that abstention is appropriate.
Abstention Not Required
Disagreeing, Berzon said that abstention is not required because granting relief would not cause interference with state proceedings but, rather, prompt state habeas proceedings to take place.
“As only declaratory relief is sought, the district court, if it grants such relief, will have no occasion by virtue of that relief alone to further involve itself in the state officials’ appointment of habeas counsel for Redd,” she wrote, adding:
“Here, no state criminal prosecution is pending, and Redd makes no request for injunctive relief; nor does he seek to block any state proceedings. To the contrary, he seeks relief that would allow his state habeas petition to finally go forward. And a declaration that he has a right to be appointed counsel promptly would not result in ongoing interference with ‘the daily conduct of state criminal proceedings,’…or with his state habeas proceedings.”
Redd brought a putative class action but the case was dismissed before any consideration was given to class-certification. The argument for abstention, Berzon said “would likely be a considerably more viable contention” at the point class certification were considered or if injunctive relief were sought.
Government Code §68662
The statute requiring appointment of habeas counsel where a death sentence has been imposed is Government Code §68662. It provides:
“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 containing one of the following: [¶] (a) The appointment of one or more counsel to represent the prisoner in proceedings pursuant to [the habeas corpus statute] upon a finding that the person is indigent and has accepted the offer to appoint counsel….”
Berzon noted that the California Supreme Court already determined, in connection with Redd’s direct appeal, that Redd is indigent. She said:
“By its mandatory language, California law leaves no discretion to deny habeas counsel to indigent capital prisoners who opt for appointed counsel….
“Redd’s entitlement to the appointment of counsel… resembles more traditional conceptions of property in that representation by counsel has an ‘ascertainable monetary value….Like the state-created entitlements to public education, nursing care, or utility service, access to counsel is a valuable service for which counsel is recompensed.”
The jurist declared:
“…California law gives rise to a protected property interest in appointed counsel.”
“Redd has waited over a quarter of a century for California to appoint counsel to aid him in pursuing his capital habeas petition, despite state law assurances that counsel would be available to him promptly. As a result, the likelihood that a viable petition can be filed in the future is diminishing to the vanishing point, given the likely unavailability of witnesses and documents concerning the long-ago crime and trial.”
The case is Redd v. Guerrero, 21-55464.
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