STEPHEN MORELAND REDD, individually and on behalf of all others similarly situated v. PATRICIA GUERRERO, Chief Justice of California; KIMBERLY MENNINGER, Judge of the Superior Court of California, County of Orange, et al.
No. 21-55464
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 20, 2023
D.C. No. 2:16-cv-01540-DMG-PJ
FOR PUBLICATION
Argued and Submitted May 11, 2022 Portland, Oregon
Filed October 20, 2023
Pursuant to
Before: Marsha S. Berzon, Richard C. Tallman, and Morgan Christen, Circuit Judges.
Opinion by Judge Berzon
SUMMARY**
Procedural Due Process/Prisoner Civil Rights
The panel reversed the district court‘s dismissal of a complaint for failure to state a claim, and remanded, in a
In 1997, the same year that a California court sentenced Redd to death, the California legislature codified a longstanding judicial rule guaranteeing the appointment of postconviction relief counsel to indigent prisoners who had been convicted and sentenced to death. Redd requested the appointment of postconviction habeas counsel 26 years ago. No lawyer has been appointed.
The panel held that Redd has standing because he has adequately shown that the declaratory relief he seeks would redress his injuries.
The panel agreed with the district court that abstention under O‘Shea v. Littleton, 414 U.S. 488 (1974), as to Redd‘s individual request for declaratory relief was not appropriate. Providing declaratory relief in this case would not require the federal court to monitor the substance of ongoing state criminal proceedings and would allow Reed‘s habeas proceeding to finally move forward.
Addressing the merits, the panel held that 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, Redd stated a viable due process claim by alleging that he has been deprived of a valuable property interest for over a quarter century. Because his property interest claim was legally plausible, the panel reversed the district court‘s dismissal of Redd‘s complaint.
However, the panel held that Redd‘s complaint as presently drafted did not plausibly allege that the state has failed to adequately protect his liberty interest in petitioning for habeas corpus. Under Supreme Court precedent, the absence of appointed counsel, without more, does not preclude Redd from vindicating his liberty interest in petitioning for habeas corpus. Redd had not alleged that he was unable to withdraw his request for appointment of counsel and instead litigate his habeas petition pro se.
COUNSEL
Karim J. Kentfield (argued), Paul D. Meyer, and Lillian J. Mao, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Mark S. Davies, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Ronald A. McIntire and Taylor R. Russell, Perkins Coie LLP, Los Angeles, California; for Plaintiff-Appellant.
Raymond A. Cardozo (argued) and Brian A. Sutherland, Reed Smith LLP, San Francisco, California; Kasey J. Curtis, Reed Smith LLP, Los Angeles, California; for Defendants-Appellees.
OPINION
BERZON, Circuit Judge:
In 1997, a California court sentenced appellant Stephen Moreland Redd to death. That same year, the California legislature codified a longstanding judicial rule guaranteeing the appointment of postconviction relief counsel to indigent prisoners who had been convicted and sentenced to death. See
Redd filed this action under
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. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Murray v. Giarratano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). 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.
I. Background
A. California‘s Habeas System
To obtain relief from a criminal conviction in California, “resort to habeas corpus is . . . required” whenever “reference to matters outside the record is necessary to establish that a defendant has been denied a fundamental constitutional right.” In re Bower, 38 Cal. 3d 865, 872 (1985). Consequently, challenges to convictions based on evidence outside the trial record—including claims based on ineffective assistance of counsel, newly discovered evidence, or reliance on false evidence at trial (see
Concomitantly, California law guarantees the right of “a person unlawfully imprisoned or restrained of their liberty” to challenge the lawfulness of their conviction by seeking habeas corpus relief in state court.
As part of the right to seek habeas relief, California law guarantees the appointment of state habeas counsel for indigent death row prisoners. California Government Code section 68662 provides that 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” appointing such counsel “upon a finding that the person is indigent and has accepted the offer to appoint counsel or is unable to competently decide whether to accept or reject that offer.”
As amended in 2016, the California Penal Code imposes a duty on superior courts to conduct capital habeas review proceedings “as expeditiously as possible, consistent with a fair adjudication,” and requires the superior courts to “resolve the initial petition within one year of filing unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition.”
Consistent with the statutory requirements that counsel be appointed “upon [the requisite] finding[s]” and that habeas petitions be determined expeditiously, the California Supreme Court has directed “expeditious appointment” of habeas counsel in capital cases “to investigate potential claims for relief and to prepare a habeas corpus petition at roughly the same time that appellate counsel is preparing an opening brief on appeal.” Morgan, 50 Cal. 4th at 937. To achieve this goal, said the court, habeas counsel “[i]deally” should be appointed “shortly after an indigent defendant‘s judgment of death.” Id. Similarly, the California Supreme Court‘s policies concerning capital cases provide that counsel should be appointed “simultaneously with the appointment of appellate counsel or at the earliest practicable time thereafter.” Cal. Sup. Ct., Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 2-1 (amended Feb. 4, 1998),
https://www.courts.ca.gov/documents/Policies_Regarding_Cases_Arising_from_Judgments_of_Death.pdf; see also id. Policy 3, std. 1–1.1 (amended Nov. 30, 2005).
Once capital habeas counsel is appointed, a petition must generally be filed within one year of the appointment.
In contrast to California law mandating the appointment of postconviction counsel for indigent capital prisoners, there is no federal constitutional right to habeas counsel. Finley declined to recognize a constitutional right to counsel for prisoners mounting collateral attacks on their convictions. 48 U.S. at 555. Murray extended Finley to capital prisoners, concluding that due process
B. Redd‘s Claims
Redd alleges that, despite the California Supreme Court‘s directive that counsel in capital cases be appointed “expeditious[ly],” Morgan, 50 Cal. 4th at 937, he has been waiting for an appointed counsel for more than a quarter century. He was convicted of first-degree murder, attempted murder, second-degree robbery, and second-degree commercial burglary, and sentenced to death, in 1997. After his conviction, the California Supreme Court found that he was indigent and appointed him counsel for his direct appeal; it did not appoint habeas counsel at that time.
Redd lost his direct appeal in 2010. Since that time, Redd has written letters to the California Supreme Court requesting appointment of habeas counsel. Also in 2010, the California Appellate Project, a non-profit organization that assists indigent prisoners facing execution, see Morgan, 50 Cal. 4th at 935, n.2, filed a placeholder “shell” habeas petition on Redd‘s behalf.2
According to the First Amended Complaint (or “complaint“),3 Redd is one of more than 363 people on death row in California awaiting the appointment of habeas counsel. At the time Redd filed the complaint, 130 of those
individuals had been waiting between 15 and 25 years from the time they were sentenced for the appointment of counsel.
Redd alleges that “[u]pon the entry of judgment” in 1997, he was entitled under state law to state-appointed counsel for his habeas proceedings. More than two decades after his death sentence, and despite having been found indigent by the California Supreme Court and having asked for appointment of counsel, Redd continues to await the appointment of counsel to represent him in his habeas proceedings. This delay “has significantly and adversely affected his ability to develop, present, and prove claims that his conviction and death sentence are unlawful.” In the interim, numerous witnesses have died and others “with critical information have become infirm or impaired or have had substantial memory loss,” and important “documents and other exculpatory evidence have been lost or destroyed.” Because he must first exhaust his claims in state court before filing a federal habeas petition, see O‘Sullivan, 526 U.S. at 842, the delay has also harmed Redd‘s ability to pursue federal habeas relief.
Redd‘s complaint names as defendants the justices of the California Supreme
qualified capital habeas counsel is due to “underfunding of the capital defense program” and a “serious shortage of qualified . . . counsel willing to accept [] appointment[s] as habeas corpus counsel in a death penalty case.” Redd seeks a declaration that California‘s failure to timely appoint state habeas counsel is depriving him of liberty and property interests without due process of law.
Redd brought the suit on his own behalf and also as a putative class action on behalf of all other indigent capital prisoners in California who have been deprived of the timely appointment of state habeas counsel. As the district court dismissed his complaint, his case never proceeded to the class certification stage. We therefore consider in this opinion only Redd‘s own due process claim, not that of any other death row prisoner whose state habeas petition has been delayed pending appointment of habeas counsel.4
C. Procedural History
In 2013, Redd filed a pro se federal petition for a writ of habeas corpus challenging his conviction. The district court dismissed that petition for failure to exhaust state law remedies. This Court declined to issue a certificate of appealability, and Redd filed a petition for a writ of certiorari in the U.S. Supreme Court. The Supreme Court denied Redd‘s petition. Redd v. Chappell, 574 U.S. 1041 (2014). In a statement respecting the denial of certiorari, Justice Sotomayor, joined by Justice Breyer, suggested that Redd “might seek to bring a
is entitled violates the Due Process Clause.” Id. (Sotomayor, J., respecting the denial of certiorari).
Following Justice Sotomayor‘s suggestion, Redd filed a pro se section 1983 complaint in district court. The court dismissed that complaint sua sponte for failure to state a claim. Redd appealed. This Court appointed pro bono counsel and granted Redd‘s unopposed motion to vacate the district court‘s dismissal and remand to the district court with instructions to give him leave to amend his complaint. Through counsel, Redd then filed the amended complaint in 2019.
D. District Court Decision
The State Officers moved to dismiss Redd‘s complaint for lack of standing, on abstention grounds, and for failure to state a claim. The district court granted the motion on the ground that the complaint failed to state a claim. Redd v. California Supreme Ct., No. CV161540DMGPJWX, 2021 WL 1803211, at *8–10 (C.D. Cal. Mar. 31, 2021).
The court first rejected the State Officers’ argument that Redd lacks standing
[Habeas Corpus Resource Center]5, or otherwise attract qualified counsel.” Id. at *5. Redd therefore showed that success against the State Officers “would increase the likelihood that his injury would be directly redressed, at least in part.” Id. at *6.
The district court next rejected the State Officers’ argument that the court must abstain under the equitable doctrine set forth in O‘Shea v. Littleton, 414 U.S. 488 (1974). Redd, 2021 WL 1803211, at *6–7. Under O‘Shea, federal courts abstain from ruling on the merits of a claim where the court would have to “monitor the substance of individual cases on an ongoing basis to administer its judgment.” Courthouse News Serv. v. Planet, 750 F.3d 776, 790 (9th Cir. 2014). The district court concluded that, although Redd brings a systemic challenge to California‘s system of appointing state habeas counsel, he seeks “a bright-line declaration that the system[] [is] unconstitutional.” Redd, 2021 WL 1803211, at *7. Awarding him declaratory relief, said the court, would “not require intensive continued intervention by federal courts into state judicial affairs.” Id.6
On the merits, the district court concluded that Redd lacks a constitutionally protected liberty interest in California‘s appointment of habeas counsel and so failed to state a cognizable procedural due process claim. Id. at *9. The court recognized that a state statute may create a protected liberty interest if the statute contains “(1) ‘substantive predicates’ governing official decisionmaking, and (2) ‘explicitly mandatory language’ specifying the outcome that must be reached if the substantive predicates have been met.” Id. at *8 (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995)). And the court concluded that California Government Code section 68662 met those prerequisites, as it mandates the appointment of counsel as long as a capital prisoner is indigent and accepts an offer for counsel. Id. But, the court explained, Redd had no liberty interest in the appointment of counsel because the right to state-appointed habeas counsel is only a “state procedural right which is itself designed to facilitate the protection of more fundamental substantive rights.” Id. at *9. “California‘s appointment of counsel,” the district court reasoned, “is designed to protect Plaintiff‘s right to present a habeas petition, not to create a ‘substantive end’ in itself.” Id. (quoting James v. Rowlands, 606 F.3d 646, 657 (9th Cir. 2010)).
Redd timely appealed.
A. Redressability
In the district court, the State Officers contended that Redd lacks standing because his injury is not redressable by a decision in its favor. They do not renew their standing argument on appeal. We agree with the district court that Redd has standing.
To establish constitutional standing, Redd must show he “has suffered an ‘injury in fact,’ that the injury is ‘fairly traceable’ to the conduct at issue in the plaintiff‘s claim, and that ‘it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.‘” Ctr. for Biological Diversity v. Exp.-Imp. Bank of the U.S., 894 F.3d 1005, 1012 (9th Cir. 2018) (quoting Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). “[T]he ability ‘to effectuate a partial remedy’ satisfies the redressability requirement.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992)). “The party invoking federal jurisdiction bears the burden of establishing these elements . . . with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
The district court correctly concluded, for purposes of this early stage of the litigation, that it is likely that a decision in Redd‘s favor would redress his injury. Redd alleges that the state has unlawfully delayed appointing him habeas counsel, and that he has been injured by that delay. He requests a declaratory judgment that the state‘s failure to timely appoint him counsel violates his procedural due process rights.
Should he ultimately prevail in obtaining that declaration, it would likely redress his injury. Declaratory relief has “the force and effect of a final judgment.” Steffel v. Thompson, 415 U.S. 452, 470 (1974) (citation omitted). Once a court issues a declaratory judgment, that order effectuates a change in the legal status between the parties such that ” ‘the practical consequence of that change would amount to a significant increase in the likelihood’ ” that the
plaintiff ” ‘would obtain relief that directly redresses the injury suffered.’ ” Reed v. Goertz, 598 U.S. 230, 234 (2023) (quoting Utah v. Evans, 536 U.S. 452, 464 (2002)).
In Reed, for example, a Texas prisoner filed a section 1983 action claiming that the state‘s postconviction DNA-testing procedures violated procedural due process. Id. at 233. A state court had denied his motion for DNA testing of evidence based on a strict state law chain-of-custody requirement. Id. The “only relief” sought was “a declaration that the [state court‘s] interpretation and application of state law was unconstitutional.” Id. at 238, 245 (Thomas, J., dissenting); see id. at 234 (majority opinion). The Supreme Court held that a declaratory judgment against the state prosecutor would redress the state‘s denial of DNA testing. Id. at 234 (majority opinion). The declaration sought “would eliminate the state prosecutor‘s justification for denying DNA testing” and make it ” ‘substantially likely’ that the state prosecutor would abide by such a court order.” Id. (quoting Utah, 536 U.S. at 464).
Similarly, in Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality), Massachusetts and two of its residents challenged the legality of a census-counting method that impacted the apportionment of state seats in the U.S. House of Representatives; the plaintiffs hoped that recalculation would lead to the assignment of an additional representative to Massachusetts. See id. at 803; see also Utah, 536 U.S. at 459-60, 463–64. Franklin concluded that the plaintiffs’ injury “is likely to be redressed by declaratory relief against the Secretary alone.” 505 U.S. at 803. Although “the President and other executive and congressional officials” with authority over reapportionment “would not be directly bound by such a determination,” the Supreme Court “assume[d] it is substantially likely” that those officials
“would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court.” Id. Utah reaffirmed Franklin‘s redressability holding on similar facts, concluding that “a declaration” would “lead[]” the Secretary to issue a new report, making it “substantially likely” that other officials would abide by the court‘s decision. Utah, 536 U.S. at 463-64 (quoting in part Franklin, 505 U.S. at 803).
Here, there‘s no question that the State Officers have the authority and the duty to appoint habeas counsel to an individual indigent capital prisoner like Redd, once requested. See
counsel and “to avoid unduly restricting the available pool of attorneys so as to provide timely appointment.”
Finally, Redd‘s showing of redressability is not undermined by his allegations that a shortage of qualified attorneys willing to accept appointment as
dependent upon any theory that it is less expensive to deny than to afford them.“).
At this stage of the litigation, we conclude Redd has adequately shown that the declaratory relief he seeks would redress his injuries. If the case progresses to the summary judgment stage, he will have to “offer evidence and specific facts demonstrating each element” of standing, including redressability. Ctr. for Biological Diversity, 894 F.3d at 1012.
B. Abstention
The State Officers argue that we should affirm the dismissal of Redd‘s suit on the ground that the district court should have abstained under O‘Shea. Because Redd‘s action never proceeded to the class certification stage, we deal only with his individual claims; whether abstention would be appropriate at the class certification stage is not before us and would likely be a considerably more viable contention. As to Redd‘s individual claims, although the State Officers’ federalism and comity concerns are surely significant, ultimately we agree with the district court that O‘Shea abstention is not appropriate here.7
1.
O‘Shea abstention is one exception to the “virtually unflagging obligation” of federal courts “to exercise the jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). O‘Shea
held that “the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State‘s criminal laws in the absence of a showing of irreparable injury which is ‘both great and immediate.‘” 414 U.S. at 499 (quoting Younger v. Harris, 401 U.S. 37, 46 (1971)).
O‘Shea involved a class action lawsuit brought by civil rights activists alleging that the state prosecutor, local police, and state judges had engaged in a pattern of discriminatory criminal prosecutions in retaliation for the plaintiffs’ activism. 414 U.S. at 490-92. The activists sought an injunction to prevent the judicial defendants from engaging in certain unlawful practices, including setting bond without regard for individualized facts, imposing harsher sentences based on race, and requiring class members to pay for costs associated with their jury trials. Id.
In concluding in O‘Shea that abstention was appropriate, the Supreme Court noted
O‘Shea abstention has proved exceedingly rare.8 We have abstained under O‘Shea only “where the relief sought would require the federal court to monitor the substance of individual cases on an ongoing basis to administer its judgment.” Courthouse News, 750 F.3d at 790. Whether O‘Shea abstention applies depends on the degree to which awarding relief in federal court would interfere intrusively in the state‘s administration of its judicial system going forward. Id. at 789-90. Accordingly, O‘Shea is not implicated when a plaintiff‘s only requested remedy is a “bright-line finding” that the defendant‘s action is unlawful, as such a finding does not require “the ongoing monitoring of the substance of state proceedings.” Id. at 791; see also Arevalo v. Hennessy, 882 F.3d 763, 766 n.2 (9th Cir. 2018).
For example, Los Angeles County Bar Association v. Eu, 979 F.2d 697 (9th Cir. 1992), held that a lawsuit alleging that “delays in Los Angeles Superior Court deprive[d] litigants of their rights to due process and equal protection” did not call for abstention under O‘Shea. Id. at 702-04. There, the Los Angeles County Bar Association sought a declaration that a California statute prescribing the number of state superior court judges was unconstitutional because it created a shortage of judges, causing “inordinate delays in civil litigation.” Id. at 699-700. Eu held that the “case [wa]s a proper one for the exercise of our declaratory jurisdiction.” Id. at 703-04. We reasoned that the case did not require “[f]urther factual development” concerning the details of particular state court cases, and a bright-line declaration of the statute‘s unconstitutionality “would resolve a substantial and important question currently dividing the parties.” Id. at 703-04. As we later explained, ”O‘Shea did not apply” in Eu “because once the question of the number of judges was settled, ‘supervision of the state court system by federal judges’ would not be required.” Miles, 801 F.3d at 1064 (quoting Eu, 979 F.2d at 703).
Similarly, Courthouse News held that O‘Shea did not require abstention from a news organization‘s lawsuit seeking declaratory and injunctive relief ordering the clerk of the Ventura County Superior Court to provide the organization with same-day access to newly filed civil complaints. 750 F.3d at 779, 789. The requested relief was “more akin to the bright-line finding” approved in Eu because, to “determine whether the Ventura County Superior Court is making complaints available the day they are filed, a federal court would not need to engage in” any “intensive, context-specific legal inquiry.” Id. at 791. Courthouse News explained that the “federal courts would not need to ‘examin[e] the administration of a substantial number of individual cases’ to assess whether the Ventura County Superior Court is adopting” adequate methods for compliance. Id. (alteration in original) (quoting E.T., 682 F.3d at 1124). The fact that “some additional litigation may later arise” to enforce a federal court injunction did “not itself justify abstaining.” Id. at 792.
2.
We are mindful that this case does implicate the delicate balance “between federal equitable power and State administration of its own law.” O‘Shea, 414 U.S. at 500 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)). Redd sues state judicial officers, albeit in their administrative roles, and alleges profound problems with California‘s promise of postconviction habeas counsel for indigent capital prisoners.
But Redd requests less intrusive relief than that requested in Eu or Courthouse News, in which we concluded it was appropriate to exercise jurisdiction. At this stage of his case, we are dealing with only his individual request for declaratory relief rather than any systemic remedy: Redd seeks a declaration that the State Officers have violated his individual procedural due process rights by failing to appoint him habeas counsel for 26 years.
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. So the central concern of O‘Shea abstention—whether “the relief sought would require the federal court to monitor the substance of individual cases on an ongoing basis,” Courthouse News, 750 F.3d at 790—is not implicated.
True, declaration in hand, Redd could seek an injunction in federal or state court mandating that he be appointed counsel. In the context of a different abstention doctrine, see Younger, 401 U.S. 37, the Supreme Court has stated that “declaratory relief alone has virtually the same practical impact as a formal injunction would,” Samuels v. Mackell, 401 U.S. 66, 72 (1971). Noting that “a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to ‘protect or effectuate’ the declaratory judgment,” id., Samuels held that for purposes of assessing the intrusiveness of injunctive and declaratory relief aimed at enjoining pending criminal proceedings, “the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment,” id. at 73. Samuels also recognized, however, that “[t]here may be unusual circumstances in which an injunction might be withheld because, despite a plaintiff‘s strong claim for relief under the established standards, the injunctive remedy seemed particularly intrusive or offensive; in such a situation, a declaratory judgment might be appropriate.” Id. at 73.
Three years later, Steffel considered whether abstention was appropriate where no criminal prosecution was pending and the plaintiff sought only declaratory relief. 415 U.S. at 462-63. In holding that abstention was not required, the Court explained that “even though a declaratory judgment has the force and effect of a final judgment, . . . it is a much milder form of relief than an injunction.
Here, no state criminal prosecution is pending, and Redd makes no request for injunctive relief; nor does he seek to block any state proceedings.9 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,” O‘Shea, 414 U.S. at 502, or with his state habeas proceedings. Should Redd later seek an injunction, the district court then could, and should, consider carefully whether comity concerns counsel against such an injunction, especially if no attempt were first made to obtain relief in state court based on the federal declaratory relief. Because no request for injunctive relief is before us, however, we need not decide that question here. See Steffel, 415 U.S. at 463 (explaining that the propriety of injunctive relief was “a question we need not reach today since petitioner has abandoned his request for that remedy“).
Aside from the nature of the relief sought, the district court‘s exercise of jurisdiction over Redd‘s claims is no more disruptive than the adjudication of other cases involving claims that state postconviction or other procedures violate due process. For example, in Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990), a habeas case, we held that a four-year delay in a California prisoner‘s criminal appeal violated due process and remanded with instructions to the district court to order the petitioner‘s release unless his appeal was heard within 90 days. Id. at 531-32. Dist. Attorney‘s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009), similarly, resolved the merits of a section 1983 challenge to Alaska postconviction procedures for obtaining DNA evidence. Id. at 60, 67-71. The Supreme Court ultimately concluded that the plaintiff had not established a due process violation. Id. at 69-71. In so doing, the Court took into account federalism concerns in its merits analysis, explaining that “[f]ederal courts may upset a State‘s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.” Id. at 69. See also, e.g., Skinner v. Switzer, 562 U.S. 521, 525 (2011) (holding that a state prisoner‘s “postconviction claim for DNA testing is properly pursued in a § 1983 action“); Morrison v. Peterson, 809 F.3d 1059, 1064-65 (9th Cir. 2015) (holding, in a section 1983 challenge to California‘s postconviction DNA procedures, that the prisoner had a state law “liberty interest in demonstrating his innocence with new evidence . . . because California law provides a right to be released from custody pursuant to a writ of habeas corpus when there is no legal cause for imprisonment“) (internal quotation marks and citation omitted). More recently, in the civil context, we considered whether a California insurance indemnity statute violated a state court litigant‘s due process right to retain counsel, rejecting the challenge on the merits. See Adir Int‘l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1041 (9th Cir. 2021).
Likewise, the federal courts have long adjudicated claims that state procedures for protecting state-created property interests are inadequate under the federal Constitution. See, e.g., Goss v. Lopez, 419 U.S. 565, 577-84 (1975) (holding that Ohio‘s public school disciplinary procedures were insufficient to protect students’ property interest in public education); Goldberg v. Kelly, 397 U.S. 254, 260-61 (1970) (holding that New York hearing procedures for termination of public benefits violated procedural due process).
3.
We disagree with the State Officers’ contention that E.T. and Miles and control the result here. In E.T., a plaintiff class of foster children alleged that overwhelming caseloads in Sacramento County dependency courts prevented court-appointed attorneys from providing effective assistance of counsel. 682 F.3d at 1122. We explained that, “[b]ecause the question is one of adequacy of representation,” as opposed to a bright-line determination like that in Eu, “potential remediation might involve examination of the administration of a substantial number of individual cases” to determine whether the quality of representation in each case met constitutional standards. Id. at 1124 (emphasis added). Providing relief to Redd, by contrast, would require no federal supervision over the quality of representation, only its provision.
Miles is likewise inapposite. There, the plaintiffs challenged, on constitutional and statutory grounds, a plan by the Los Angeles County Superior Court to reduce the number of courthouses hearing unlawful detainer cases from 26 neighborhood courthouses to five centrally located “hub” courts. 801 F.3d at 1062. The plaintiffs sought “an injunction preventing [the Los Angeles superior courts] from eliminating even a single courthouse that, prior to the [state‘s] fiscal crisis, heard unlawful detainer actions. They also request[ed] an order requiring [the superior courts] to hold public meetings before planning any future unlawful detainer courtroom closures, and for the district court to retain jurisdiction for an unspecified period of
4.
Finally, even if abstention were otherwise appropriate, we would affirm the district court‘s abstention ruling because O‘Shea abstention applies only “in the absence of a showing of irreparable injury which is ‘both great and immediate.‘” O‘Shea, 414 U.S. at 499 (emphasis added) (quoting Younger, 401 U.S. at 46). Here, Redd‘s 26-year delay in the appointment of habeas counsel has indisputably caused him “great and immediate” irreparable harm. Id. According to his complaint, he has waited under a death sentence without the assistance of counsel in investigating, developing, and litigating his habeas challenges to his conviction and his sentence, despite California‘s promise of appointed counsel. During this quarter century, witnesses have died and valuable memories and evidence have been lost.
* * * *
We emphasize that we are permitting Redd‘s individual claim for federal relief to go forward “not without some trepidation,” Eu, 979 F.2d at 704. But Redd has been waiting 26 years to litigate his state habeas petition. The question whether the delay in appointment of habeas counsel violates his federal due process rights is collateral to, and not the subject of, his habeas proceeding. Rather than “disrupt the normal course of proceedings in the state courts,” O‘Shea, 414 U.S. at 501, appointment of counsel would allow Redd‘s habeas proceeding finally to move forward. Further, providing declaratory relief as to whether California has violated Redd‘s due process rights by failing to appoint postconviction counsel for 26 years would not require the court “to monitor the substance of individual cases on an ongoing basis.” Courthouse News, 750 F.3d at 790. And whether any declaration Redd may obtain draws the line at the 26-plus year delay he has experienced or at some other point, the declaration would “serve a useful purpose in clarifying and settling the legal relations between the parties.” Eu, 979 F.2d at 703. Should Redd later seek more intrusive relief in federal court, an O‘Shea analysis would have to be conducted anew and could well come out differently. For these reasons, the exceedingly compelling circumstances presented in this case outweigh at this juncture the considerable comity concerns asserted by the State Officers.
We therefore decline the State Officers’ invitation to abstain under O‘Shea and proceed to the merits of Redd‘s claims.10
C. Procedural Due Process
To assess Redd‘s Fourteenth Amendment procedural due process claims, we first examine his asserted property or liberty interests and then consider whether the state‘s procedures were constitutionally sufficient to protect those interests. See K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 972-73 (9th Cir. 2015); Zerezghi v. U.S. Citizenship & Immigr. Servs., 955 F.3d 802, 808 (9th Cir. 2020). On appeal, Redd raises three closely related procedural
We review de novo the district court‘s dismissal of Redd‘s complaint for failure to state a procedural due process claim under
1. Property Interest in State-Appointed Habeas Counsel
Redd contends that he has a protected, state-created property interest in state-appointed habeas counsel, and, because of the exceedingly long delay in appointing counsel, he has been denied that right without due process. The State Officers do not dispute that a state‘s guarantee of appointed counsel could constitute a protected property interest, contending only that Redd has received all the process due with respect to that interest. We disagree and conclude that Redd has plausibly alleged a due process claim based on deprivation of his property interest in state-appointed habeas counsel.
(a)
As an initial matter, Redd did not advance this theory in district court in opposition to the State Officers’ motion to dismiss, as the State Officers note. But rather than argue that we should decline to consider it as a result, the State Officers in their briefing addressed the issue on the merits. “‘[T]his court will not address waiver if not raised by the opposing party.‘” United States v. Doe, 53 F.3d 1081, 1082 (9th Cir. 1995) (quoting United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995)). For this reason, as well as because this pure legal question has been sufficiently briefed by the parties, and in light of the extraordinary delay Redd has already experienced and the injustice that would otherwise result, we exercise our discretion to resolve the issue. See Singleton v. Wulff, 428 U.S. 106, 121 (1976); Carrillo v. Cnty. of L.A., 798 F.3d 1210, 1223 (9th Cir. 2015).
(b)
Due process protects property interests “well beyond actual ownership of real estate, chattels, or money.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571-72 (1972). Courts have recognized a range of state-created property interests protected by due process, including property interests in utility service, Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 11-12 (1978), public education, Goss, 419 U.S. at 573, welfare benefits, Goldberg, 397 U.S. at 261-63, driver‘s licenses, Bell v. Burson, 402 U.S. 535, 539 (1971), nursing care, O‘Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773, 786 (1980), a cause of action, Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30 (1982), and a type of immigration petition, Zerezghi, 955 F.3d at 809. See also Greene v. Babbitt, 64 F.3d 1266, 1272 (9th Cir. 1995) (collecting examples). Recognizing such property rights “protect[s] those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.” Roth, 408 U.S. at 577.
“The hallmark of property . . . is an individual entitlement grounded in state law.” Logan, 455 U.S. at 430; see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 756-57 (2005). “To have a property interest in a benefit, a person must ‘have a legitimate claim of entitlement to it,’ not just ‘an abstract need or desire for it.‘” K.W., 789 F.3d at 972 (quoting Roth, 408 U.S. at 577). We look to “the language of the statute and the extent to which the entitlement is couched in mandatory terms” to determine whether state law gives rise to a protected property interest. Greene, 64 F.3d at 1272; see also Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013).
By its mandatory language, California law leaves no discretion to deny habeas counsel to indigent capital prisoners who opt for appointed counsel. As noted,
Further, the individual statutory right to counsel for capital habeas petitions directly benefits capital prisoners, “protect[ing] the[ir] interests . . . by assuring that they are provided a reasonably adequate opportunity to present [] their habeas corpus claims.” Barnett, 31 Cal. 4th at 475; see also Morgan, 50 Cal. 4th at 937; Sanders, 21 Cal. 4th at 717. Redd‘s entitlement to the appointment of counsel also resembles more traditional conceptions of property in that representation by counsel has an “ascertainable
(c)
The State Officers’ sole contention in response to Redd‘s property interest argument is that because California does not guarantee the appointment of counsel within a specific time frame, “under California law, Redd has received everything to which he is entitled.” We disagree.
First, contrary to the State Officers’ contention, California law does direct the appointment of counsel within a reasonable time, although it does not provide a specific deadline.
Other California statutes and policies reflect the requirement that capital habeas counsel be appointed in a timely manner.
Second, and in any event, the State Officers’ contention that the process for appointing counsel, including its precise timing, limits the property interest defined by the state misunderstands the nature of due process protections. State law creates the property interest, but it is
Here, California law unmistakably confers on Redd—whom the California Supreme Court found indigent—an entitlement to have counsel appointed for pursuing his state habeas petition. See
In Logan, for example, the plaintiff had a property interest in using the state‘s adjudicatory procedures to redress employment discrimination. 455 U.S. at 429-30. Under the applicable state statute, once the plaintiff filed a discrimination charge, a state commission had 120 days in which to convene a fact-finding conference. Id. at 424-25. However, due to inadvertent delay, the commission failed to schedule the conference within the required timeframe, resulting in the dismissal of the plaintiff‘s claim for lack of jurisdiction. Id. at 426-27. The Supreme Court held that the 120-day requirement was “a procedural limitation on the claimant‘s ability to assert his rights, not a substantive element” of his property interest, and held that enforcing the 120-day limit deprived Logan of a federally protected property interest in the state-created right to have his charge heard. Id. at 431-33.
Similarly here, Redd alleges that due to the state‘s delay, his right to appointed counsel has been inadequately protected. Any timing rule for appointing counsel that would ratify the state‘s 26-year delay is not part of Redd‘s right to appointed counsel, but part of the state‘s procedures for securing that right—procedures that Redd alleges are inadequate. Cf. Coe, 922 F.2d at 531-32 (holding that the state‘s excessive delay in adjudicating a convicted prisoner‘s appeal violated due process). Put another way, recognizing that Redd‘s federally protected property interest in appointed counsel is subject to due process protections does not depend on whether California has mandated a specific deadline for the appointment of such counsel.
(d)
Our final question is whether Redd has plausibly alleged that the State Officers have violated the Due Process Clause by depriving him of his property interest without adequate process. The process required by the Constitution will depend on “the importance of the private interest and the length or finality of the deprivation, . . . the likelihood of government error, . . . . and the magnitude of the government interests involved.” See Logan, 455 U.S. at 434 (citing, inter alia, Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), and Memphis Light, 436 U.S. at 19). “[T]he State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.” Id.
The State Officers do not dispute that, if Redd has a protected property interest in the appointment of counsel, then it is legally plausible that the state‘s procedures—which have allegedly deprived him of the assistance of counsel mandated under state law and prevented him from litigating his habeas claims for 26 years—are inadequate to protect that interest.14 Their silence on this question is unsurprising. It is more than plausible that the value of Redd‘s entitlement to appointed habeas counsel has significantly diminished over the many years he has been waiting, and that the 26-year delay has deprived him of his property interest in appointed counsel.
Redd‘s interest in the appointment of habeas counsel is obviously substantial. In the context of federal habeas petitions, the Supreme Court has observed that “quality legal representation is necessary in capital habeas corpus proceedings in light of ‘the seriousness of the possible penalty and . . . the unique and complex nature of the litigation.‘” McFarland v. Scott, 512 U.S. 849, 855 (1994) (quoting former
The state‘s interest in appointment of habeas counsel for indigent capital prisoners is likewise substantial, as reflected in the state‘s decision to mandate such appointed counsel by statute. Appointing such counsel “promotes the state‘s interest in the fair and efficient administration of justice.” Barnett, 31 Cal. 4th at 475; accord Morgan, 50 Cal. 4th at 937; see also In re Sanders, 21 Cal. 4th 697, 717 (1999) (explaining that appointment of habeas counsel to represent indigent capital defendants “promote[s] the cause of justice“) (citation and internal quotation marks omitted).
Redd has also plausibly alleged that the deprivation resulting from a 26-year delay is significant and potentially irreversible. Redd alleges “the delay in the appointment of habeas corpus counsel . . . has significantly and adversely affected his ability to develop, present, and prove claims that his conviction and death sentence are unlawful,” not only during his twenty-six-year wait but ever. “[N]umerous witnesses including immediate family members and at least one member of his trial defense team—have died, and many other persons with critical information
Further, a “system or procedure that deprives persons of their claims in a random manner . . . necessarily presents an unjustifiably high risk that meritorious claims will be terminated.” Logan, 455 U.S. at 434-35. Here, California law guaranteed the appointment of habeas counsel to Redd once he accepted the state‘s offer, see
At the same time, the state‘s challenge in providing capital habeas counsel to those indigent prisoners who need it is great. But Redd alleges that the State Officers could have taken a number of actions that would have reduced the delay in appointment of counsel. See supra Section II.A. No doubt the State Officers will wish to put on evidence that requiring them to take any further action is unduly burdensome. But at the pleading stage Redd‘s allegations are at least plausible.
We therefore reverse the district court‘s dismissal of Redd‘s complaint for failure to state a procedural due process claim.
2. Redd‘s State-Created Liberty Interest in Petitioning for Habeas Corpus
(a)
Redd also contends that his complaint plausibly alleged a procedural due process claim based on his liberty interest in petitioning for habeas corpus. It is common ground between the parties that Redd‘s state-created right to petition for habeas gives rise to a liberty interest protected by due process. The State Officers’ acknowledgment is well-taken.15
State laws governing postconviction relief can, under certain circumstances, give rise to a liberty interest protected by federal due process. In Osborne, for example, Alaska had established a process for vacating a conviction based on newly discovered evidence. 557 U.S. at 64-65. The Court held that individuals seeking to challenge their Alaska convictions on that basis have a postconviction constitutionally protected liberty interest in demonstrating their innocence as state law permits. Id. at 68. Similarly, Morrison
Likewise, California law guarantees Redd a right to challenge his conviction collaterally via a habeas corpus petition, so he has a constitutionally protected liberty interest in that right. See
(b)
Redd contends that his complaint sufficiently states a claim that the state‘s procedures are inadequate to protect his liberty interest in petitioning for habeas. Based on his complaint as currently pleaded, we disagree.
Redd‘s liberty interest claim is premised on the theory that the delay in appointing him counsel undermined his ability to petition for habeas. Put another way, to succeed, he must show that under California‘s habeas system, he cannot vindicate his right to petition for habeas unless the state appoints him counsel.
As discussed earlier, Supreme Court precedent has not recognized a constitutional right to counsel in state habeas proceedings. See supra Section I.A. The State Officers contend that because Redd has no recognized federal constitutional right to appointed habeas counsel, his option to represent himself is sufficient to protect his liberty interest in habeas.
Redd‘s response, contained in his briefs, is that under California‘s habeas procedures, once he accepted the state‘s offer to appoint counsel, he had no option to withdraw his request for counsel and represent himself. As a result, he has been precluded from moving forward with his habeas petition during his decades-long wait for the appointment of counsel, while his ability meaningfully to develop and present his habeas claims diminishes with each passing year. In other words, the theory Redd presents in his briefs is that the state induced him into accepting its seemingly advantageous offer to appoint counsel and then forced him to wait more than a quarter century for counsel to be appointed,
But Redd‘s operative complaint includes no such allegations.16 His First Amended Complaint does not allege that he is unable to withdraw his election of appointed counsel, nor does it allege that he has, at any time since his initial request for appointed counsel, attempted to change course (either by filing a motion or otherwise) and seek to represent himself in his postconviction proceedings. Although Redd‘s appeal briefs represent that after he accepted the state‘s offer to appoint habeas counsel, his “pro se filings have been repeatedly rejected by the California Supreme Court on [this] ground,” these allegations appear nowhere in his First Amended Complaint. It is also unclear whether any such pro se filings were submitted in connection with his direct appeal, in which he is represented by counsel, or his habeas petition, in which he is not.
Thus, as presently drafted, Redd‘s First Amended Complaint does not allege that since he first requested appointed counsel, he has been unable to withdraw his request for appointment of counsel and instead litigate his habeas petition pro se.17 Under Supreme Court precedent, the absence of appointed counsel, without more, does not preclude Redd from vindicating his liberty interest in petitioning for habeas. See Coleman, 501 U.S. at 752; Murray, 492 U.S. at 10; see also supra Section I.A. For this reason, Redd‘s complaint as currently formulated does not plausibly allege that California‘s procedures are inadequate to protect
III. Conclusion
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.
For the reasons surveyed in this opinion, we conclude that the district court should not have dismissed Redd‘s procedural due process claim for failure to state a claim at the pleading stage. We reverse the dismissal and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes
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 Section 1509 of the Penal Code upon a finding that the person is indigent and has accepted the offer to appoint counsel or is unable to competently decide whether to accept or reject that offer.
(b) A finding, after a hearing if necessary, that the
prisoner rejected the offer to appoint counsel and made that decision with full understanding of the legal consequences of the decision.
(c) The denial to appoint counsel upon a finding that the person is not indigent.