Richard Louis Arnold Phillips v. Daniel B. Vasquez, Warden, San Quentin State Prison

apply only particular tailored to con- REVERSED AND REMANDED FOR government: dangerous cern of the federal FURTHER PROCEEDINGS. charged

persons with federal but crimes incompetent

found to stand trial. (citations I, 917 F.2d at 1203

Sahhar omit- ted). 4246 does not

Section authorize

wholesale, continuous federal detention of

dangerous persons who have once been

charged statutory with a federal crime. The preference scheme embodies a clear that a PHILLIPS, Richard Louis Arnold 4246(d) responsibility. state assume Section Petitioner-Appellant, provides Attorney that “[t]he General shall make all reasonable ... efforts to cause responsibility.” ... State to assume If the VASQUEZ, Warden, Daniel B. assumption State continues to refuse of such Quentin Prison, San State responsibility, provides the statute Respondent-Appellee. Attorney shall peri “[t]he General continue No. 92-15828. odically to exert reаsonable efforts to responsi cause such a State to assume such United Appeals, States Court of bility care, person’s custody, for the Ninth Circuit. 4246(d)(2). § treatment.” 18 U.S.C. It thus clear that the statute’s authorization for Argued and Submitted Oct. indefinite federal commitment is a condition May Decided one, contingent upon al whether a state has accept custody declined to of the federal

detainee.

In this charges while federal were pending

still conditionally Sahhar was re- Hospital,

leased Arizona State but he was custody

returned to federal after he assault- injured

ed and a fellow inmate. The state of

Arizona upon has not been called to deal with following

Sahhar the dismissal of federal

charges. quite Arizona see its interests

differently now that is clear the federal

government try does not intend to Sahhar.

Accordingly, we must remand for the dis-

trict court to determine whether the statuto-

ry preference acceptance for the state’s

custody Only can be effectuated. in the

event of accept Arizona’s refusal to custody statutory Sahhar will the federal scheme

require his continued federal commitment 4246(d)(2).

pursuant §to

We therefore reverse the district court’s

judgment and remand for the district court inquire into “response” what Arizona’s Attorney “reasonable efforts” of the

General “to cause” Arizona to assume re-

sponsibility for Sahhar. See 18 U.S.C. 4246(d).

judicating guilt imposing a death sen- tence; thus, imposed thе death sentence is through entirely separate trial. Supreme California affirmed Phillips’ conviction but reversed his death People Phillips, sentence. 41 Cal.3d (1985). 222 Cal.Rptr. P.2d 711 423 Phil- lips 1992; was not resentenced to death until appeal the automatic from that sentence has pending ‍​‌‌‌​​​‌‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌​‌‌‌​‌​​​‌‌​​‌​​‌‌​​‍supreme been the state court Thus, early Phillips’ since conviction approximately years has been final for ten while validity of his death sentence re- mains unresolved.

Despite delay significant that has al- ready place, taken there is no indication that Phillips’ appeal from his sentence will be anytime decided near future. To the contrary, significant рroblems due to involv- ing sentencing in the inaccuracies trial tran- Horvath, Fresno, CA, petition- Donald for script, appears supreme it the state er-appellant. may court the case for decide some time. Gen., McMurray, Deputy Atty. Edmund D. Thus, way there is no to determine when Sacramento, CA, respondent-appellee. final, Phillips’ assuming sentence will be even supreme

that the state court will affirm it. course, again Of if that court finds errors in decision, the sentencing Phillips may well be period forced to wait substantial another FLETCHER, REINHARDT, Before time before sentence becomes final un- KLEINFELD, Judges. Circuit der state law. Opinion REINHARDT; by Judge Phillips petitioned for a writ of habeas by Judge Concurrence KLEINFELD. corpus pursuant 1992; § to U.S.C. 2254 in 28 petition arising contained claims REINHARDT, Judge: Circuit from his conviction. The district court dis years It has almost fifteen been since missed the petition prejudice without Phillips Richard Louis Arnold was convicted First, on grounds. two it declined to inter death, of murder and sentenced to first and fere with state ongoing proceed criminal supreme ten since state court af- ing under the abstention doctrine first articu firmed his conviction and vacated his sen- Harris, in Younger lated tence. question The before us is whether we (1971). Second, S.Ct. L.Ed.2d should now review Phillips’ sentencing appeal because was still Phillips’ require him conviction or to continue pending, petition dismissed the on the to wait until the state has rendered a final ground that he had not exhausted available regarding decision his sentence before allow- required by state remedies as Rose v. Lun him to for habeas review of the dy, 455 U.S. S.Ct. L.Ed.2d conviction. subsequently The district court BACKGROUND declined to probable issue a certificate of sought cause when its deci Phillips was convicted of first sion to dismiss his degree special circumstance, murder with at- murder, tempted robbery; granted request he was We Phillips’ subse- for a certifi- quently to death. probable sentenced The State of cate of cause instructed the process parties California has bifurcated the regarding for ad- to submit briefs the ex- Accordingly, guilt phase ings regarding will affect issues. haustion and abstention ongoing proceedings. jurisdiction over the district exercise under habeas claim court’s denial of Requirements 0/Younger B. Rose U.S.C. Although argu makes no extraordinary delay, we hold light finality ment bring law, California it asserts that federal under constitutionality of his convic- regarding the specifically the doctrine abstention law— has not fact that despite Harris, Younger v. ruling on We yet final his sentence. made a (1971), and the exhaustion 27 L.Ed.2d reasonably Phillips’ right conclude that Lundy, Rose requirement of outweighs his conviction prоmpt review 1198, (1982 ) —pre 71 102 S.Ct. L.Ed.2d 379 might oth- jurisprudential concerns that considering Phillips’ cludes this court from peti- us to decline to review erwise lead petition courts habeas until the state have Younger prevents Rose nor tion. Neither concerning a final determination reached obtaining re- seeking him and habeas from disagree. We sentence. view conviction. of his First, appeal Phillips on does not seek ANALYSIS enjoin ongoing proceeding; an in to state Judgment Finality A. stead, only collaterally he seeks to attack his adjudicat already The state has conviction. Phillips’ does not contest state The guilt, regard its in that is ed decision final. It argument his stаte conviction is that final, nothing more seeks than yet subject to a final argues that he is not ongoing review of that decision. The yet judgment, is not because sentence sentencing proceeding only, state involves final. is with and the state free to continue its the deter- procedure separates California against sentencing determination. The rule guilt from mination of the determination prevent staying proceeding does us has penalty especially sharply. issue, California deciding a even if from related that “separate phases” into what ultimately pro bifurcated renders the state decision phase penalty phasе Thus, guilt Supreme calls the ceeding moot. Court’s Younger Code penalty death cases. See Cal.Penal courts must that federal guilt undisputed enjoining that significant ongo 190.1. It is exercise caution proceedings inapplicable is has been phase of this case final.1 It criminal state Accordingly, Supreme Court. we hold affirmed the California to the case us. prevent phase in state does not guilt No review of the that the abstention doctrine further reviewing Phillips’ petition.2 corpus proceed- us from court is available. Habeas Indeed, proceedings reviewing consistently appellate the trial court's courts held Peoplе Kemp, v. on that issue.” 10 decision that a conviction under California's bifurcated 564, 611, 562, Cal.Rptr. 517 P.2d adjudicating penalty Cal.3d 826, 111 process cases is a death (1974) (discussing application People judgment. example, v. Jack- final For Escobedo). 250, 96, son, 248, Cal.Rptr. Cal.2d (1967) (discussing retroactive P.2d Illinois, concurrence, application separate Judge Escobedo v. Kleinfeld In his (1964)), apply Younger generally the Su- but 84 S.Ct. 12 L.Ed.2d 977 asserts that should justifies judg- Younger preme exception "[a] California that that to Court of noted concludes However, only when of direct decision in this case. ment becomes final all avenues our Younger application of specifically he cites concern the held that cases review are exhausted” See, appeals. e.g., ongoing judgment even trials or direct for murder a final conviction Pursue, Ltd., 420 U.S. penalty been re- when the death sentence has Huffman (con (1975) yet Similarly, L.Ed.2d 482 the Su- and is not final. versed preme appellate cluding Younger applies state that that when Court of California noted ongoing proceedings well only proceedings as to judgment vacated as it relates insofar Tomkins, court); penalty, scope is a a state trial Sherwood "[t]he th[e] retrial death 1983) (declining pro origi- Cir. procedure which the matter of state under appellate petitioner and trial tran guilt final counsel nal on the issue remains vide scripts during ongoing from a state penalty for an state during issue and retrial Second, peti- we conclude that the district are “nevertheless entitled to resubmit a tion dismissing Phillips’ with exhausted claims or to exhaust court erred Rose, the remainder of the claims.” petition to exhaust for failure state remedies 102 S.Ct. at 1204.3 Rose, Supreme under Rose. petition containing held that a both exhaust plurality thus makes clear that a de- ed and unexhausted claims must be dis fendant choose to submit con- noted, plurality opinion missed. The howev taining only claims, exhausted even when his er, prisoners petitions remaining unexhausted, who submit mixed claims are without Cox, trial); (1991), Drury suggests peti- criminal 764- 113 L.Ed.2d 517 that most (9th Cir.1972) (declining peti- seeking to entertain a tioners to review their convictions with- claiming probable exhausting the state lacked out their claims their sen- cause to bind a defendant over for trial when the losing opportunity tences risk to seek habeas yet had been convicted defendant in state review of their sentences at a later Phil- date. court). Here, contrast, proceeding course, state lips, bring not have to a second and, regarding Phillips' conviction is final ac- ‍​‌‌‌​​​‌‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌​‌‌‌​‌​​​‌‌​​‌​​‌‌​​‍because our ultimate decision cording Phillips, fully moot, exhausted bоth with sentencing renders the issues because the remedies; regard to direct and collateral state sentencing state's decision is free from constitu- decision, Phillips, our if favorable to would sim- error, tional or because a life sentence is ulti- ply completed pro- in a overturn the result law, (Under mately imposed. person ceeding just ordinarily like decisions do in the degree special convicted of first murder with petitions. only case of habeas successful only circumstances can receive a sentence of difference, here, is that a decision on the merits imprisonment. death or life See Cal.Penal Code Philliрs' petition might effectively habeas moot (West 1988)). § 190.3 entirely separate independent the state's and ad- However, Phillips bring even if were to a sec- judication of his sentence. petition challenging ond habeas limited to his concurring colleague's argument Our would be sentence, " extraordinary under the circumstances if, persuasive suggests, judg- more he as 'final 1034-1037, ” " ” pp. doing of this see so infra always ment' rence, ‘means sentence.' Concur- represent would not an abuse of the writ. See States, (quoting at 1038 Berman v. United 655, (7th Cir.1995) Farley, Burris v. 51 F.3d 658 211, 212, 164, 166, 302 U.S. 58 S.Ct. 82 L.Ed. (suggesting Phillips' that a defendant in situation However, (1937)). upon 204 his reliance Ber- "persuasive would have a answer” to an aсcusa- First, above, misplaced. man is as we discuss writ). tion that he had abused the We note first law California makes clear that a conviction is that, although Supreme neither we nor the supra final even if the sentence is not. See note separate pro- has considered whether two habeas important, Supreme 1. More Court has ex- ceedings may be instituted when a state has plicitly rejected judgment the notion that final adopted process a bifurcated that results in two when, here, always means sentence the con- separate regarding guilt trials the defendant’s sentencing procedures viction and are bifurcat- punishment, Suрreme and we doubt that the Indeed, specifically Brady ed. held in v. State ordinarily permit separate Court would 83, 1194, Maryland, 373 U.S. 83 S.Ct. 10 proceedings Accordingly, in such cases. we do (1963), general L.Ed.2d 215 that "the rule that separate peti- not base our determination a as to ‘Final in a criminal case means sen- regarding Phillips' sentence on the fact that applied” tence. ..cannot be to cases in which Rather, capital California's cases are bifurcated. separate determining trials are conducted in a person already we conclude that a who has wait- guilt imposing defendant's his sentence. years ed fifteen for a final dеcision in order to Brady, 373 U.S. at 85 n. 83 S.Ct. at 1 1195 n. challenge of that conviction (citations omitted). noted, As the Court compelled bringing cannot be to choose between ground inapplica- for its that the rule is petition regarding a that conviction and forfeit- guilt ble to such cases is that the defendant's "is sentence, right challenge on the ‘independent by’ may and unaffected what tran- hand, waiting one until the sentence is final spire petitioner in a trial at which can receive petition, Although a file habeas on the other. imprisonment a life or death sentence.” Id. might our conclusion under other circumstances Thus, (citations omitted). Younger ap- does not dictum, part constitute we make it a of our ply to this case. opinion Phillips because we believe that is enti- “[b]y invoking proce- 3. The Court added question this tled to a resolution of this before deter- prisoner forfeiting dure ... mining finally would risk con- whether attack his conviction separately. noted, sideration of his unexhausted claims in federal recently As the Seventh Circuit has court" a patently if district court found that a second it would be unfair to contend that petition containing prisoner claims principal hope that were unexhausted "a setting whose lies in petition represented in the first an abuse of the pre- aside his conviction stake must his life on Rose, 520-21, (because, loses, vailing writ. 455 U.S. at 102 S.Ct. at if he he forfeits enti- Indeed, Burris, later).” penally 1204. the Court's recent decision in tlement contest the 51 Zant, McCleskeyv. 111 S.Ct. F.3d at 658.

1035 in order to Rose. exhaust state remedies obtain violating principle articulated Indeed, courts, federal review of claim. we not- Indeed, appellate includ number extraordinary delay in ed that the state one, does have held that Rose ing this processes courts can render state corrective when require dismissal meaning “ineffective” within section only exhausted claims. the court contains 2254(b) required and that exhaustion is not See, F.2d e.g., Spalding, v. Powell Coe, Similarly, аt Cir.1982) such cases. F.2d (9th may (holding that courts Callahan, in Okot v. 788 F.2d containing “petition a habeas properly review Cir.1986), prisoner noted that when issues”); Peoples also v. only exhausted see “receives ineffective relief state court be- (3d Fulcomer, Cir.1989); F.2d delay, cause of unreasonable he file 1387, 1389(5th Maggio, 727 F.2d Williams v. proceeding court. such Cir.1984); Taylor Curry, 708 F.2d cases, federal habeas well avail- relief be (2d denied, 1000, 104 Cir.1983), cert. despite able failure to exhaust state reme- Thus, L.Ed.2d 694 be Okot, 633; Story dies.” 788 F.2d see also sought only to attack his con Phillips cause (3d Kindt, Cir.1994), cert. (and not) could seek viction and did — denied, -, 115 S.Ct. arising from his of claims federal review (1994); Cunningham, L.Ed.2d 506 Burkett sentence, district court erred dismiss (3d Cir.1987). 1208, 1218 ing the for failure to exhaust state Extraordinary Delay The Significance remedies sentence.4 in the State Courts Jurisprudential C. Concerns us, fifteen the case before almost course, recognize, of deci We passed since the convic- date pursue his habeas sion to allow and a tion. It has been decade half since final deci petition before renders first to death ten was sentenced implicates many regarding his sentence years sion supreme since the state court vacated Rose, in prudential of the concerns outlined that sentence. More than three have dangers concеrning particularly passed penalty those the the death trial since second However, piecemeal litigation. place. we believe took Phillips’ reasonably right

that in case to this concedes, addition, In the there is state scrutiny of his convic prompt constitutional already It a sight. no end in has taken any prudential concerns that outweighs significant for some of the amount time might exist. transcripts be inaccuracies in the trial corrected, oral consistently recognized and counsel indicated us at We that un- have may argument will be nec- justify state a that further revisions delay usual in the courts Moreover, possible essary. quite it that prisoner’s right a to fair is protect decision to a again supreme the court will find errors prompt resolution of his constitutional state decision, sentencing any in and that state ‍​‌‌‌​​​‌‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌​‌‌‌​‌​​​‌‌​​‌​​‌‌​​‍jurisprudential the despite claims concerns Phillips’ may a as to sentence us to decline to review claim determination that led require final for an additional number full exhaustion in other become or eases Therefore, if years. we refuse consider proceeding a related to the federal which now, Phillips’ might he be For pending court. exam- state (9th Thurman, period forced indeterminate ple, in F.2d 528 to wait further Coe v. any Cir.1991), brings he could raise prisоner that a who time before we held delay of his con- challenge process arising a due claim from required appellate process to viction. state Phillips petition. remand the district alleges fully his If on

4. that he exhausted all avail- within regarding given his con- an ade- able state collateral remedies court that the state was not finds issue, filing viction his habeas Howev- before quate opportunity to this the state raise er, appears Phillips properly did not serve it that exhausted these whether contest filing petition, potentially depriv- this and, not, was an if whether claims failure ing opportunity to contest whether he of an excusable one. fully for the exhausted state claims remedies delay corpus prejudice petitioner inherent such would-be habeas must years, quite For fifteen has appeal await outcome evident. compelled prison exhausted, remain in been under a state remedies even are where being possible challenged sentence of death while the issue to be in the denied writ of corpus finally to establish the has been settled in opportunity unconstitu- addition, tionality of his conviction. In dur- the state courts. delay, long so there is substantial Sherwood, 716 F.2d will die or disap- likelihood that witnesses argument We find the state’s to be uncon- fadе, pear, memories will and evidence will vincing. important, First and most we have short, opportuni- become unavailable. rejected explicitly precise argument ty day fair retrial diminishes as each regarding scope made the state of the passes. Thurman, Sherwood in Coe v. Jurisprudential Balancing Concerns (9th Cir.1991). Coe, we held that Right Phillips’ Constitutional extending the rule articulated Sherwood to against significant Balanced delay cases in which a substantial occurred delay that from harms arise further are during appellate process would di- relatively jurisprudential weak concerns. rectly language of contravene the section Comity practically in this concerns case are 2254, which eliminates the exhaustion re- nonexistent since the state has had full and quirement in cases in which there exist “cir- opportunity validity fair to review the rendering process cumstances such ineffec- conviction and its decision rights protect prisoner.” tive to final. that conviction is Hendricks v. Coe, Cf. (quoting 922 F.2d at 530 28 U.S.C.

Zenon, Cir.1993). 2254). reason, § rejected For this Moreover, judicial ordinary concerns for effi expansive interpretation of Sherwood that here; ciency present are not there is little urges now adopt, holding us to since, duplicative risk of review unlike other extraordinary delаy appellate in the state types proceedings, criminal claims process may excuse a failure to exhaust state Phillips might bring regarding his sen Coe, remedies. As in we conclude that the entirely tence a review will involve delay in this has case rendered the state separate trial and under California’s process corrective “ineffective” within the system. Finally, bifurcated while there is 2254(b). meaning 28 U.S.C. danger holding might some that our increase Second, easily is Sherwood distin piecemeal litigation, the risk of even that guishable. Our in decision that case rested by is concern lessened the fact that we do not upon fact pending apрeal the that the know whether a death will sentence ultimate might in petition result the reversal of the ly by supreme be affirmed court er’s conviction and eliminate the federal and thus any whether there will ever be question, Sherwood, 634, thereby 716 F.2d at ground separate petition on which a could be rendering by decision us moot wast supra filed. pp. See 1034-35 n. 2. ing precious judicial case, resources. In this danger Argument pending there is no the Regarding The State’s the appeal Sherwood will moot our decision Decision since con sentence, cerns the not the conviction under state, According to the must lying it. period remain for an incarсerated indefinite more) years (quite possibly 20 or before he sup The distinction draw is we above can seek federal review of his conviction. ported Ricketts, by our in decision Blazak v. Indeed, the state maintains that such a rule (9th Cir.1992), 971 F.2d 1408 cert. de — by mandated this court’s decision Sher nied, -, 114 S.Ct. (9th Tomkins, wood v. 716 F.2d 632 Cir. (1994). determining L.Ed.2d 487 In whether 1983), in which we held: final, a holding district court’s was a reviewa When, decision, as in present appeal the of ble we a concluded that a state pending, criminal conviction is concerning sentence where the is- the could file an surrounding are unre- before defendant the conviction sues might problems signifi- raise peti- constitutional distinguishable from habeas solved Corey, proportions.” at cant the sen- concerning a conviction where at S.Ct. 302.5 agreeing In tencing are unresolved. issues petition challenging a a habeas to consider 4. The Seventh Circuit’s Decision though sentencing issues the conviction even Finally, note that our in this we declining thus to remained unresolved —and Indeed, hardly a novel one. case by Eleventh rule articulated follow the recently precise Circuit has reached Seventh (11th Jones, Clisby v. F.2d 925 Circuit in an ly the same result almost identical case. Cir.1992) (en bane), ap- regarding habeas Farley, In Burris v. 51 F.3d 655 Cir. noted: peals unresolved claims—we with 1995), ha- the Seventh Circuit entertainеd a court to Clisby In declined [where petition by fully who beas defendant had district petition], a habeas consider regard state remedies with to his exhausted imposition relief as to granted court conviction but whose sentence was not final death, judg- but reserved a sentence the time he filed the conclud underlying going ment claims to on ing petitioner’s failure exhaust result, is- As a the conviction conviction. regard his with sentence state remedies re- alive and unresolved sues remained preclude reaching it from the merits did appeals gardless the court of of whether conviction, upon attack collateral court’s the district affirmed or reversed the court held: penalty issues.... Unlike decision on in a glacial a state handles his case When however, Clisby, present appeal we in the fashion, a for prisoner global need not wait complete resolution proceed- warming in. to set The extended arising ‍​‌‌‌​​​‌‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌​‌‌‌​‌​​​‌‌​​‌​​‌‌​​‍alleged constitutional infirmities penalty fix the for murder needed to operative facts from relevant set imply person that a with a color- need This decision ren- to conviction. relative claim innocence must cool his heels able sentencing issues moot.... ders more prison a decade or Thus, affirm, Clisby, if the habe- unlike we present being to a federal court entitled completed. corpus action is challenge of conviction. omitted). Blazak, (citations F.2d at 1413 Burris, Although pre- at 658. Moreover, a decision to extend Sherwood receipt prior pared opinion our might this one raise to an unusual case like Circuit’s, we could not have summa- Seventh out- analogous those concerns somewhat concise, in a more rized our conclusion here Corey v. Supreme Court lined colorful, fashion than did our fellow or more States, 298, 11 United circuit. reviewing a statute L.Ed.2d 229 CONCLUSION a court to hold defendant that enabled is a this case narrow infor- Our decision prison it obtained more detailed while simply hold that should appropriate sen- one. We mation to determine the tence, prisoner required wait more than fifteen could be held that finally resolved before to be immediately or wait for sentence appeal his conviction may challenge the of imposed before he until final sentence was fully juris are aware requiring a rule conviction. We appealing. It noted that implicated by our deci prudential was concerns the final sentence defendant to wait until sion, they outweighed are conclude that appealing ... fore- but imposed “would in a resolution of by Phillips’ prompt prompt aрpeal interest any opportunity of a stall not intimate claims. We do underlying ... his constitutional criminal conviction from an circumstances, if mandatory any what other a view as to imposition of such [and] to seek any, might a defendant review entitle imprisonment term of three- or six-month supra applicable cases. See note in such did not involve 5. We note that Sherwood also process that penally case or the bifurcated death 54, prior to of conviction his sentence becom- uitable relief.” Id. at at S.Ct. convinced, however, Younger are that applies final. We abstention to collateral at years, sight, simply nо in petitions fifteen with end tacks on convictions well as as long injunctions. period require prisoner too See Braden v. 30th Judicial might Kentucky, 484, 489, be an await review what unconstitu- Circuit Court 410 U.S. conviction, 1123, 1126, (1973). merely entirely tional because an 93 S.Ct. 35 L.Ed.2d separate independent sen- generally review of his The bars corpus doctrine habeas timely has not in a petitions tence been resolved fash- in federal court even where the in through ion. As noted Blazak: has conviction been affirmed available levels direct review in the state grants exclusively habeas sen- [UJnlike on courts, long finality yet so as has not been issues, tencing grant peti- of a habeas achieved the sentence. Ber invalidity because of the tion constitutional Cf. U.S., 211, 212, man v. U.S. 58 S.Ct. possi- conviction of a raises concerns that a (“Final (1937) judgment 82 L.Ed. 204 person unjustifiably ble innocent has been a criminal case means sentence. The sen incarcerated on death for a row number judgment.”); tence is the cases, v. Pur years. Delaying reinal in such Huffman sue, Ltd., 592, 608, 95 S.Ct. attorneys fight while over a that sentence (1975) (“Virtually 43 L.Ed.2d 482 exist, all of longer no perpetua- risks the Younger evils at which is directed would injustice a monumental should inhere in prior federal intervention ultimately acquittal. retrial result in an completion appellate proceedings, Blazak, (emphasis 971 F.2d at 1414 n. 7 just surely they as if would such interven added). trial.”); tion occurred or before 28 U.S.C. reasons, For above we reinstate the (“in custody § 2254 pursuant to a petition. The district court’s decision court”). State AND REVERSED REMANDED. “[wjhen, We have pres held as in the ent of a state criminal convic KLEINFELD, Judge, concurring: Circuit pending, tion is corpus would-be habeas My analysis I concur. re- differs two petitioner must await outcome of his spects, on purporting abstention and on our appeal before his state remedies are exhaust to make a in a case not before us. ed, even challenged where the to be issue majority Younger The concludes that v. the writ оf corpus finally has been Harris, S.Ct. 27 L.Ed.2d settled the state courts.” Sherwood v. (1971), inapplicable,” analyzes “is the Tomkins, (9th Cir.1983). 716 F.2d “prudential case in terms of concerns.” Cox, Drury See also v. 764-65 view, my Younger applies, but contains an (“Our Cir.1972) reading Younger equitable exception for eases like this one. Harris convinces us that in the most unusual circumstances majority analyzes is defendant entitled The much of the case interposition way of in Lundy, terms Rose v. junction corpus or jury until 71 L.Ed.2d after case This in, judgment appealed comes been has from problem. is not Rose Rose holds that Ap case concluded in state courts. petitions. federal courts should dismiss mixed parent finality of one enough.” issue is not This is not a mixed does (citation omitted)); argue Hillery Pulley, has included (9th Cir.1984) (affirming Hillery F.2d 644 claims not exhausted state court in his Sumner, (E.D.Cal. petition. F.Supp. 496 637 1980)). Younger, Supreme the held that generally may enjoin federal courts ongo- Younger not equitable abstention is doc- trine, proceedings, state criminal but exception leaves and leaves room for an for possible room exceptions for general “unusual circumstance that call would for faith, harassment, rule for “bad equitable or other Younger, relief.” at U.S. eq- bar, unusual circumstance that would call for at S.Ct. 755. the case at Claiming decide ease before it. that a apparently began 1978 when the confinement arrested, proposition is does not make it so. fourteen yet he was later, petition for habeas when he filed An abuse writ case does not arise yet not issued a final corpus, state had the subsequent petition the is filed. until See delay, combined judgment in his case. This e.g., Farley, v. Burris guilt of bifurcation the with California’s Cir.1995) (petitioner “must meet that defense proceed- penalty phase the of phase it.”). interposes if and when the state An adjudication finality ing, and the state appellate court cannot command itself to ren- subject guilt which is the particular subsequent decisions cаses. der application requires for cir- petition, allow “unusual decisis that like cases be de- Stare Younger. cided alike. It does not enable a court to exception cumstances” judges in power exercise over its own future with “policy against interference by talking something not disposi- eases about Younger, prosecutions,” criminal authority tive of case before it. We lack implicated, not at at is S.Ct. to the abuse of the writ case which decide corpus review of because federal habeas future, though arise in the even we all any- all phase will interfere at with guilt not probably it agree on how should be dеcided. adjudication in thing remaining for courts. why puzzled I am about are sides Usually reversed in this case. the man sen- beginning of long delay between the So state, prefers delay, tenced to death ex- is, finality Younger termi- confinement pedition. In this to man sentenced agree majority nology, I with “unusual.” disposition the final death seeks accelerate case unusual circumstances this that the petition in federal court of his for a writ of equitable permitting relief of allow for the I corpus. am unable to see the harm cor- Phillips petition for a writ of habeas to the interests the State of California now, waiting for the pus instead of granting him this relief. Likewise, finality achieve on his sentence. great corpus The writ writ exception at statute includes an the habeas testing for of confine- 2254(b) for “absence available U.S.C. severely impaired, if con- ment. The writ process or the existence State corrective years, yet finement last fourteen not be rendering process inef- circumstances such ripe petition. agree for I that this a habeas applica- allow fective.” The circumstances petition should now be entertained. Thurman, exception. tion of this See Coe (9th Cir.1990). hold, power I do think have the majority purports opinion to do subsequent that if files

footnote sentence, attacking he have will “good filing cause” for more demonstrated MAHER Rebecca Steven Albert Zant, wife, McCleskey Maher, than one See husband and Plaintiffs-Appellants, 1454, 113 L.Ed.2d point My this has disagreement on “holding” and to do what the terms with America, STATES of UNITED mean, Phillips will “dictum” not with whether Defendant-Appellee. “good inclined to have ‍​‌‌‌​​​‌‌‌‌​​​‌‌‌‌‌​​‌​‌​‌​‌​‌‌‌​‌​​​‌‌​​‌​​‌‌​​‍had cause.” I am No. 93-16398. agree majority if with the subse challenging quently his sen files Appeals, United Court of States tence, final, it he when becomes will Ninth Circuit. joined “good having that claim cause” Argued and Dec. Submitted objec My with his attack on his conviction. May Decided calling appraisal, upon this which agree, dispos holding, three of us us, no is dictum

es no issue before so it. A court can

matter what call

Case Details

Case Name: Richard Louis Arnold Phillips v. Daniel B. Vasquez, Warden, San Quentin State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 26, 1995

Citation: 56 F.3d 1030

Docket Number: 92-15828

Court Abbreviation: 9th Cir.