Doe v. Busby
661 F.3d 1001
| 9th Cir. | 2011Background
- Doe was convicted of first-degree murder and related counts in California, with evidence of prior unadjudicated domestic violence acts admitted under Cal. Evid.Code § 1109.
- CALJIC Nos. 2.50.02 and 2.50.1 instructed the jury on using prior domestic-violence acts to infer a disposition, potentially lowering the burden of proof.
- The jury convicted Doe on murder, corporal injury to a spouse, and terrorist threats; Count 2 (grand theft) was acquitted.
- Doe filed a federal habeas petition in 2004; the district court granted a conditional writ based on the CALJIC instructions and timing defects found in tolling.
- Equitable tolling was found due to former counsel’s egregious misconduct delaying filing; the district court held the petition timely and granted relief.
- The State appeals on timeliness and the merits of the jury-instruction claim; Doe cross-appeals on the Ex Post Facto issue regarding § 1109.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable tolling viability | Doe | Busby | Equitable tolling warranted; timely petition |
| Jury instructions on unadjudicated acts | Doe Gibson issue applies | State argues Hedgpeth/Byrd/Mendez alter effect | Gibson-era violation of burden-of-proof; structural error; relief granted |
| Intervening authority impact (harmless error vs structural) | Doe | Busby | Intervening cases do not cure Gibson error; still structural |
| Ex Post Facto challenge to § 1109 | Doe | State | § 1109 retroactivity not Ex Post Facto violation |
Key Cases Cited
- Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004) (CALJIC 2.50.01/2.50.02 interplay constitutes structural error)
- Hedgpeth v. Pulido, 555 U.S. 57 (U.S. 2009) (harmless error review for multiple theories of guilt)
- Mendez v. Knowles, 556 F.3d 757 (9th Cir. 2009) (discusses burden of proof and multiple theories; limits Gibson applicability)
- Byrd v. Lewis, 566 F.3d 855 (9th Cir. 2009) (harmful error review framework for multiple theories; reconciles precedents)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (equitable tolling requires diligence and extraordinary circumstances)
- Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003) (attorney misconduct and diligence considerations in tolling)
- Schlueter v. Varner, 384 F.3d 69 (3d Cir. 2004) (attorney misrepresentation and tolling implications)